Submitted: April 13, 2018
from United States District Court for the Northern District
of Iowa - Ft. Dodge
COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
ARNOLD, CIRCUIT JUDGE.
Hernandez-Espinoza is a Mexican citizen who entered the
United States without authorization. Unable to obtain
employment or identification, he purloined a social security
number belonging to someone else and falsely represented it
to be his. After the government uncovered his ruse and
charged him with a host of crimes, he pleaded guilty to
misusing a social security number, see 42 U.S.C.
§ 408(a)(7)(B), and to aggravated identity theft,
see 18 U.S.C. § 1028A(a)(1). The district
court sentenced him to a year in prison for
misusing a social security number, which was six months above
the top of his Guidelines range, and to the statutorily
mandated two additional years in prison for aggravated
identity theft. See id. The district court also
sentenced him to three years of supervised release and
imposed a $5, 000 fine.
raises numerous issues concerning his sentence. In pretrial
proceedings below, he objected to the probation officer's
proposed scoring of one criminal-history point for committing
third-degree criminal sexual conduct under Minn. Stat. §
609.344(1)(b). He argued that he did not plead guilty or
receive a "deferred judgment" for that charge but
instead received a "deferred prosecution, " and,
under the Sentencing Guidelines, defendants do not receive
points when charges result in a deferred prosecution.
See USSG § 4A1.2(f). After reviewing the
objection, the probation officer agreed that no
criminal-history point should be assessed. At sentencing, the
district court acknowledged that Hernandez-Espinoza would not
receive a point for the offense.
now maintains nonetheless that the district court clearly
erred in believing he had received a deferred judgment-a
mistaken belief, he contends, that contributed to the
district court varying six months above his Guidelines range.
We agree it would be error for a sentencing court to select a
sentence based on clearly erroneous facts. See United
States v. Meadows, 866 F.3d 913, 917 (8th Cir. 2017).
But the district court stated that it was "the criminal
sexual conduct" leading to the charge, rather than any
supposed guilty plea or deferred judgment, that was
"concerning." Hernandez-Espinoza did not object to
most of the presentence report's recitation of the
conduct underlying that charge, so it was not error for the
district court to consider that conduct. See Fed. R.
Crim. P. 32(i)(3)(A). Though it would have been error for the
district court to rely on objected-to assertions of fact that
the government did not later prove, see United States v.
Webster, 788 F.3d 891, 892 (8th Cir. 2015), the district
court expressly noted it was not considering any such
assertions. The unobjected-to conduct showed that
Hernandez-Espinoza, then nineteen, had sex with a
fifteen-year-old girl ten to fifteen times. So the district
court did not err in considering that conduct in determining
whether to vary upward.
also maintains the district court wrongfully denied his
request to move the paragraph detailing the sexual-conduct
charge from the "Adult Criminal Conviction(s)"
section of the PSR to the "Other Arrests" section.
He argues that without the move "the Bureau of Prisons
could, and likely will, consider this 'conviction' in
determining [his] security classification, " and that
leaving the paragraph under the "Adult Criminal
Conviction(s)" heading makes it appear that the district
court overruled his objection to the scoring of a
courts are arbiters of justice, not editors of PSRs. See
United States v. Beatty, 9 F.3d 686, 689 (8th Cir.
1993). For this reason, we have affirmed a district
court's refusal to strike objected-to and unproven
portions of a PSR identifying a defendant as a gang member
even though the BOP might use that information to determine
his security classification or placement in the prison
system. See United States v. Hopkins, 824 F.3d 726,
735 (8th Cir. 2016). We think the principle of
Hopkins applies here, even though Hernandez-Espinoza
asked the district court to cut and paste instead of delete.
We also doubt the BOP would conclude that the district court
overruled his objection: The final PSR contains the probation
officer's acknowledgment that "it appears as though
there was no guilty plea entered on the defendant's
behalf, " so "no criminal history points should
have been assessed." It is important to note, moreover,
that a PSR is not the only information the BOP considers when
classifying prisoners; it reviews a number of documents,
including the PSR, the judgment, and the district court's
statement of reasons for choosing the sentence imposed.
United States v. Murchison, 865 F.3d 23, 26-28 (1st
Cir. 2017). The statement of reasons here suggests the
district court did not overrule the objection-it notes only a
history of serious charges, not convictions. We think it
speculative that the BOP would cursorily and mistakenly
determine Hernandez-Espinoza's classification despite
"the full complement of sentencing information"
that it should receive. See id. at 27-28. And even
if it did, Hernandez-Espinoza could pursue administrative
remedies within the BOP. See United States v.
Beauchamp, No. 98-1510, 1999 WL 132188, at *1 (8th Cir.
Mar. 12, 1999) (per curiam).
also takes issue with the $5, 000 fine the district court
imposed. He first argues the district court imposed the fine
"upon threat of obstruction of justice and denial of
acceptance of responsibility." We do not see it that
way. The district court merely warned him of the consequences
of pursuing frivolous objections. Our court recently rejected
a nearly identical argument. See United States v.
Trevino, 829 F.3d 668, 674-75 (8th Cir. 2016).
next maintains that the district court failed to make the
requisite factual finding that he could pay a fine. See
United States v. Kay, 717 F.3d 659, 665 (8th Cir. 2013).
But our review of the record reveals that the district court
explicitly found that Hernandez-Espinoza had the ability to
pay a fine. It did so, moreover, on a sufficient record
because, after the district court and defense counsel had a
long back-and-forth to determine whether Hernandez-Espinoza
contested that he could pay the fine, defense counsel
admitted Hernandez-Espinoza could do so.
asserts as well that the district court improperly relied on
his pretrial services report to determine his sentence. An
initial iteration of the PSR noted that Hernandez-Espinoza
had reported having no net worth and no monthly cash flow,
and though his fiancée owned substantial assets, it
did not appear Hernandez-Espinoza could pay a fine. The
government objected to this finding, pointing out that
Hernandez-Espinoza's pretrial services report showed that
when he sought bail, he listed numerous assets belonging to
him. The district court asked Hernandez-Espinoza at
sentencing about this inconsistency, and as we have already
said, he eventually conceded he could pay a fine.
law generally makes pretrial services reports confidential.
18 U.S.C. § 3153(c)(1). But like any good general rule,
there are exceptions to this one, at least two of which we
find applicable here. First, probation officers may use these
reports to compile PSRs, 18 U.S.C. § 3153(c)(2)(C), and
those officers do not create PSRs for their own benefit; they
create them so district courts can have information on which
to make sentencing decisions. See United States v.
Morrison, 778 F.3d 396, 400 (2d Cir. 2015) (per curiam).
It would be beyond odd if those assisting the district court
could have access to these reports while the district court
itself could not. As the Morrison court explained,
implicit in the relevant statute "is the expectation
that district judges will receive and use that information in
determining a defendant's sentence." Id.
Second, though § 3153(c)(3) makes pretrial services
reports inadmissible "on the issue of guilt in a
criminal judicial proceeding, " we have held that they
can be used to impeach a criminal defendant at trial.
See, e.g., United States v. Wilson, 930
F.2d 616, 619 (8th Cir. 1991). It seems to follow that, if
the government can use these reports to impeach a defendant
during a criminal trial, then a fortiori a district court can
consider them to impeach a defendant for purposes of fixing a
Hernandez-Espinoza maintains we should reverse his sentence
because the district court imposed a fine and accepted a
check for that fine before Hernandez-Espinoza's
allocution. During sentencing, the district court pursued the
immediate payment of the fine apparently in an attempt to
thwart collection problems that it saw brewing. The district
court asked defense counsel if Hernandez-Espinoza's
fiancée, who was sitting in the gallery and whose name
was on the account from which Hernandez-Espinoza had agreed
to pay the fine, ...