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United States v. Espinoza, 02-50552 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 02-50552 Visitors: 21
Filed: Mar. 07, 2003
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50552 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO ESPINOZA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1420-4-PRM - - - - - - - - - - March 7, 2003 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Francisco Espinoza appeals his sentence, following his guilty-plea conviction of con
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50552
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO ESPINOZA,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-01-CR-1420-4-PRM
                        - - - - - - - - - -
                           March 7, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Francisco Espinoza appeals his sentence, following his

guilty-plea conviction of conspiracy to possess cocaine with

intent to distribute, a violation of 21 U.S.C. § 846.

     Espinoza argues that the district court clearly erred in

denying him a three-level reduction under U.S.S.G. § 3E1.1.     The

district court’s determination that Espinoza failed to show that

he had accepted responsibility was not “without foundation.”

See United States v. Brace, 
145 F.3d 247
, 264 (5th Cir. 1998)



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 02-50552
                                -2-

(en banc).   Although Espinoza, in pleading guilty, agreed that

most of the factual basis that was read at his rearraignment was

correct, he later moved to withdraw his guilty plea, asserting

his innocence.   He then continued to deny that he even knew that

cocaine was the drug involved in the offense.    This conduct did

not amount to “sincere contrition regarding the full extent

of . . . [his criminal] conduct.”   See United States v. Diaz,

39 F.3d 568
, 572 (5th Cir. 1994) (internal quotation marks and

citation omitted).

     Espinoza also contends that the district court erred in

denying him a two-level reduction under U.S.S.G. § 3B1.2(b) for

“minor” participation in the offense.     He emphasizes that he only

provided temporary storage for the 1,188 kilograms of cocaine,

whereas “average” participants were responsible for arranging the

transportation of the cocaine load into and out of the warehouse

he had rented.   The district court did not clearly err in

determining that Espinoza’s role was “fairly important.”     See

United States v. Leal-Mendoza, 
281 F.3d 473
, 477 (5th Cir. 2000).

Within the context of transporting the single load of cocaine,

Espinoza failed to sustain his burden of showing that he was

“substantially less culpable” than the average participant.

See United States v. Garcia, 
242 F.3d 593
, 598-99 (5th Cir.

2001); United States v. Marmolejo, 
106 F.3d 1213
, 1217

(5th Cir. 1997).

     The conviction and sentence are AFFIRMED.

Source:  CourtListener

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