United States v. Lorenzo Espinoza

MEMORANDUM **

Lorenzo Espinoza pleaded guilty to a five-count indictment for a conspiracy to defraud the Housing and Urban Development (HUD) agency, bankruptcy fraud, willful failure to pay taxes, and money laundering. After rejecting the leadership enhancement recommended by the Presen-tence Report and reducing the amount of loss for which the sentence should account, the district court calculated a Guidelines range of 12-18 months. It then sentenced Espinoza to one year of imprisonment on the tax count and five years of imprisonment on each of the others counts, to be run concurrently. Espinoza appeals his sentence. We vacate the sentence on the basis of procedural error, without reaching Espinoza’s claim of substantive unreasonableness.

The district court erred in its analysis in two ways. First, it improperly relied on Espinoza’s “extreme greed” to justify an increase in his sentence. See United States v. Enriquez-Munoz, 906 *680 F.2d 1356, 1361-62 (9th Cir.1990) (“[P]rofit is a primary motivating factor in many if not most types of crimes. Certainly as to crimes in which the desire for profit commonly plays a role, an upward departure based on the presence of such a motive…

dissenting:

I would affirm the sentence of the district court.

FILED

NOT FOR PUBLICATION MAR 15 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50202

Plaintiff - Appellee., D.C. No. 2:04-cr-00263-SVW-1

v.

MEMORANDUM *

LORENZO ESPINOZA, aµa Seal A,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted January 9, 2012 Pasadena, California

Before: REINHARDT and W. FLETCHER, Circuit Judges, and BREYER, District Judge.**

Lorenzo Espinoza pleaded guilty to a five-count indictment for a conspiracy to

defraud the Housing and Urban Development (HUD) agency, banµruptcy fraud,

willful failure to pay taxes, and money laundering. After rejecting the leadership

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation. enhancement recommended by the Presentence…