United States v. Wendy Espinoza, No. 15-1826 (8th Cir. 2015)
Annotate this CaseCourt Description: Per Curiam. Before Wollman, Bye, and Gruender, Circuit Judges] Criminal Case - Anders. A preponderance of the evidence supports the district court's Guidelines calculations with regard to the number of victims and the loss amount. The district court did not abuse its discretion in imposing a sentence above the advisory Guidelines range.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1826 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Wendy Espinoza lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Fayetteville ____________ Submitted: October 30, 2015 Filed: October 30, 2015 [Unpublished] ____________ Before WOLLMAN, BYE, and GRUENDER, Circuit Judges. ____________ PER CURIAM. Wendy Espinoza pleaded guilty to wire fraud, in violation of 18 U.S.C. § 1343, and mail fraud, in violation of 18 U.S.C. § 1341, admitting she participated in a scheme that involved extracting payments from illegal immigrants in exchange for false assurances that she could help them obtain legal status. After a lengthy sentencing hearing during which several victims testified, along with a special agent with the Office of the Inspector General of the Social Security Administration, the district court1 adopted the calculations in the presentence investigation report, varied upward from the advisory Guidelines imprisonment range of 57-71 months, and sentenced Espinoza to concurrent terms of 96 months in prison and 3 years of supervised release on each count. The court also ordered restitution of $541,520. Espinoza appeals, and her counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging Espinoza’s prison term. Following de novo review of the district court’s application of the Guidelines, and clear error review of its findings of fact, see United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007), we conclude that a preponderance of the evidence supported the district court’s Guidelines calculations with regard to the number of victims and the loss amount, see United States v. Adejumo, 772 F.3d 513, 526 (8th Cir.), cert. denied, 135 S. Ct. 1869 (2015), particularly given that witness credibility is a matter left to the district court, see United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam). We also find no abuse of discretion in the district court’s decision to impose a sentence above the advisory Guidelines range after express consideration of the sentencing factors. See United States v. Straw, 616 F.3d 737, 743 (8th Cir. 2010). Finally, after conducting independent review under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion to withdraw. ______________________________ 1 The Honorable Timothy L. Brooks, United States District Judge for the Western District of Missouri. -2-
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