IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30596

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ESMIN ESPINOZA-ERAZO, also known as Felix Manuel Serrano Robles,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CR-231-1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Esmin Espinoza-Erazo, a Honduran national, pleaded guilty to illegal 

use of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B). The 

presentence report (PSR) assigned Espinoza-Erazo a total offense level of ten

and a criminal history category of I, which yielded a guidelines range of six to 

twelve months. The PSR identified no factors that might warrant a departure 

or variance, although it stated that Espinoza-Erazo “was previously subject to 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2016

Lyle W. Cayce

Clerk

 Case: 15-30596 Document: 00513452796 Page: 1 Date Filed: 04/05/2016
No. 15-30596

2

an administrative deportation” and suggested that he should be required to 

cooperate in any removal proceeding as a special condition of supervised 

release. At sentencing, the district court adopted the PSR without objection. 

Espinoza-Erazo asked for a sentence within the guidelines range, and noted 

that his two co-defendants had been sentenced to time served. The district 

court upwardly varied from the guidelines range and sentenced EspinozaErazo to a term of imprisonment of twenty-seven months to be followed by 

three years of supervised release. The district court also imposed a $2,500 fine 

and a special condition of supervised release requiring Espinoza-Erazo, who 

was in the United States unlawfully, to cooperate in any future removal 

proceedings. On appeal, Espinoza-Erazo challenges the substantive 

reasonableness of the sentence and fine imposed and the lawfulness of the 

cooperation condition.

Following United States v. Booker, 543 U.S. 220 (2005), we review 

sentences for reasonableness. United States v. Mondragon-Santiago, 564 F.3d 

357, 360 (5th Cir. 2009). Reasonableness review is bifurcated; if a review of 

the sentence for procedural error reveals none or, as here, no claim of 

procedural error is asserted, the appellate court then determines whether the 

sentence is substantively reasonable. Gall v. United States, 552 U.S. 38, 51

(2007). If error has been preserved, an appellate court reviewing for 

reasonableness “merely asks whether the trial court abused its discretion.” 

Rita v. United States, 551 U.S. 338, 351 (2007). Challenges to the conditions 

of supervised release are also reviewed for abuse of discretion. United States 

v. Duke, 788 F.3d 392, 398 (5th Cir. 2015); United States v. Ellis, 720 F.3d 220, 

224 (5th Cir. 2013). Sentences within the properly calculated guidelines range 

are afforded a presumption of reasonableness, United States v. PachecoAlvarado, 782 F.3d 213, 221 (5th Cir. 2015), while sentences imposed outside 

of the properly calculated guidelines range are not, Gall, 552 U.S. at 51. 

 Case: 15-30596 Document: 00513452796 Page: 2 Date Filed: 04/05/2016
No. 15-30596

3

Substantive reasonableness is determined in light of the 18 U.S.C. § 3553(a) 

sentencing factors. Id. at 49–50.

Although Espinoza-Erazo argues that the sentence imposed creates 

unwarranted sentencing disparities with his co-defendants and fails to accord 

sufficient weight to the guidelines and § 3553(a) factors, the record reflects 

otherwise. The district court did not abuse its discretion by considering

Espinoza-Erazo’s uncharged immigration offense when assessing whether the 

guidelines range is sufficient in light of the § 3553(a) factors. See, e.g., United 

States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). In addition, the 

within-guidelines fine was conditioned on Espinoza-Erazo being able to work 

in prison and being within the United States. This court has upheld the 

imposition of similar fines. See Pacheco-Alvarado, 782 F.3d at 216–17. The 

district court did not fail to account for a factor that should have received 

significant weight, give weight to an improper or irrelevant factor, or clearly 

err in balancing the § 3553(a) factors. See United States v. Smith, 440 F.3d 

704, 709 (5th Cir. 2006). In addition, Espinoza-Erazo, given his prior 

deportation, was not similarly situated to his co-defendants. Id. We defer to 

the district court’s determination that the § 3553(a) factors, on balance, justify 

the extent of the upward variance imposed. United States v. Chandler, 732 

F.3d 434, 437–38 (5th Cir. 2013) (citing United States v. Broussard, 669 F.3d 

537, 551 (5th Cir. 2012)).

Turning to the cooperation condition, Espinoza-Erazo challenged it in

the district court only “to the extent that it impinges on his right to litigate any 

matter that he can or should in immigration [c]ourt.” “A district court has 

wide discretion in imposing terms and conditions of supervised release.” 

United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). However, the 

conditions must be “reasonably related to the factors set forth in section 

3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)”; “involve[] no greater deprivation 

 Case: 15-30596 Document: 00513452796 Page: 3 Date Filed: 04/05/2016
No. 15-30596

4

of liberty than is reasonably necessary for the purposes set forth in section 

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)”; and be consistent with the policy 

statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d).

Although the cooperation condition conceivably could be construed in a 

manner that would limit Espinoza-Erazo’s rights and defenses in removal 

proceedings, it may also be construed to require only that he “not evade 

removal proceedings and that he comply with the result, not that he waive any 

defenses he might have in that hearing.” United States v. Qu, 618 F. App’x 

777, 781 (5th Cir. 2015). To the extent the condition could be interpreted to 

impinge Espinoza-Erazo’s right to litigate in immigration court and involve a 

greater deprivation of liberty than is reasonably necessary, it is within the 

authority of this court to interpret the conditions to exclude such an 

interference. See Paul, 274 F.3d at 166. Construed in that way, EspinozaErazo has not shown that the district court abused its discretion. 

Any remaining arguments unrelated to the argument that the 

cooperation condition limits his rights and defenses are subject to plain error 

review because they were not specifically raised below. United States v. 

Wooley, 740 F.3d 359, 367 (5th Cir. 2014); United States v. Kippers, 685 F.3d 

491, 497 (5th Cir. 2012). Here, Espinoza-Erazo cannot establish clear or 

obvious error given the absence of any authority to support his arguments. See 

Qu, 618 F. App’x at 781.

AFFIRMED. 

 Case: 15-30596 Document: 00513452796 Page: 4 Date Filed: 04/05/2016