United States Court of Appeals

for the Fifth Circuit

No. 20-40853

United States of America, 

Plaintiff—Appellee,

versus

Eli Espinoza, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:20-CR-876-1

Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.

Per Curiam:*

A federal grand jury indicted Eli Espinoza for smuggling goods from 

the United States in violation of 18 U.S.C. §§ 554(a) and 2. Pursuant to 

United States Sentencing Guidelines § 2M5.2(a)(1), the district court 

applied a base offense level of 26 and, after making certain adjustments, 

sentenced him to 63 months’ imprisonment. It further imposed a three-year 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 6, 2021

Lyle W. Cayce

Clerk

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term of supervised release and a $100 special assessment. Espinoza 

challenges his sentence on the ground that the district court erred in 

declining to apply the lower base offense level of 14 under § 2M5.2(a)(2)(A). 

Because we conclude that the district court did not reversibly err, we 

AFFIRM.

I. FACTS AND PROCEEDINGS

On April 30, 2020, Espinoza applied for outbound inspection into 

Mexico at the Hidalgo, Texas Port of Entry. Immigration officials questioned 

him, and after he denied having contraband, they referred him for secondary 

inspection of his vehicle. Espinoza fled, and immigration officials pursued. 

Shortly thereafter, Espinoza was arrested, and a search of his vehicle revealed 

five packages containing firearm components, which included the following:

• Front trunnion

• AK Bolt Body

• Gas Piston

• Upper Hand Guard and Gas Tube

• Rear Sight Block

• Recoil Spring with Recoil Spring Rear Guide

• Dust Cover

• Trigger for Semi-Automatic Rifle

• Bolt Carrier Assembly

• Bolt Catch

On May 28, 2020, a federal grand jury charged Espinoza, by singlecount indictment, with:

[F]raudulently and knowingly export[ing] and send[ing] from 

the United States, or attempt[ing] to export and send from the 

United States to the United Mexican States, any merchandise, 

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article, or object, to wit: firearms components to include, front 

trunnion, AK bolt body, upper hand guard and ga[s] tube, rear 

sight block, recoil spring with recoil spring rear guide, dust 

cover, trigger for semi-automatic rifle, bolt carrier assembly, 

and bolt catch, without a license or written approval from the 

United States Department of Commerce, as required by Title 

50, United States Code, Sections 4819 and Title 15, Code of 

Federal Regulations, Sections 730-744[,] [i]n violation of Title 

18, United States Code, Sections 554(a) and 2.

The indictment also included a forfeiture notice, specifying that upon 

conviction, Espinoza would forfeit the firearm components found in his 

vehicle.

Espinoza pleaded guilty on September 17, 2020. That same day, the 

district court ordered the probation officer to prepare a presentence report 

(“PSR”) to assist it with Espinoza’s sentencing. In the PSR, the probation 

officer determined that § 2M5.2(a) supplies the base offense level for 

violations of 18 U.S.C. §§ 554(a) and 2 and recommended a base offense level 

of 26. With criminal history category II, and after an upward adjustment for 

reckless endangerment and a downward adjustment for acceptance of 

responsibility, this corresponded to a total offense level of 26 and a 

recommended Guidelines range of 70–87 months.

Espinoza filed written objections to the PSR. He argued that, under

§ 2M5.2(a)(2)(A), the lower base offense level of 14 should apply because his 

offense involved only non-fully automatic small arms, and the number of 

weapons did not exceed two. The crux of his argument was that the 

component parts the Government found in his vehicle were sufficient, at 

most, for one fully assembled, non-fully automatic firearm. In response, the 

probation officer filed an addendum to the PSR, in which he reiterated that 

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the base offense level of 26 was proper due to the case agent’s statement that 

the firearms components found in Espinoza’s vehicle were capable of 

comprising around four to five fully assembled firearms.

At his sentencing hearing, Espinoza renewed his objections. The 

district court overruled his objections and adopted the PSR. Based on a total 

offense level of 25 and criminal history category II, the district court 

sentenced Espinoza to 63 months’imprisonment. It further imposed a threeyear term of supervised release and a $100 special assessment. Espinoza 

timely appealed. 

II. STANDARD OF REVIEW

“Where a defendant preserves error by objecting at sentencing, we 

review the sentencing court’s factual findings for clear error and its 

interpretation or application of the Sentencing Guidelines de novo.” United 

States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015); see also United 

States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017) (per curiam). “There 

is no clear error where the district court’s finding is plausible in light of the 

record as a whole.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017).

III. DISCUSSION

Espinoza argues that the district court reversibly erred by applying a 

base offense level of 26 because the facts in the PSR show that the firearm 

components found in his vehicle are insufficient to comprise more than one 

fully assembled firearm. For the following reasons, we find no reversible 

error.

A.

“When making factual findings for sentencing purposes, a district 

court ‘may consider any information which bears sufficient indicia of 

reliability to support its probable accuracy.’” United States v. Zuniga, 720 

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F.3d 587, 590–91 (5th Cir. 2013) (per curiam) (quoting United States v. 

Harris, 702 F.3d 226, 230 (5th Cir. 2012)). “Generally, a PSR ‘bears 

sufficient indicia of reliability to be considered as evidence by the sentencing 

judge in making factual determinations.’” Harris, 702 F.3d at 230 (quoting

United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010)).

The district court adopted the PSR. In so doing, it implicitly made the 

factual finding that the information contained in the PSR was sufficiently 

reliable. United States v. Peterson, 977 F.3d 381, 396 (5th Cir. 2020) (“A 

district court’s reliance on a PSR is based on a finding of fact that the PSR’s 

information contains indicia of reliability.”). And we will disturb that factual 

finding only if “a review of the record results in a ‘definite and firm 

conviction that a mistake has been committed.’” Zuniga, 720 F.3d at 590

(quoting United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per 

curiam)).

After carefully reviewing the record, we cannot say with a definite and 

firm conviction that the district court made a mistake. The information 

contained in the PSR was the result of several months of investigation into 

Espinoza’s illegal activities. During that time, Homeland Security 

Investigations (“HSI”) agents surveilled Espinoza and obtained confidential 

information about his smuggling operation, including the dates he typically 

met with his suppliers, his pick-up locations, the dates he made trips into 

Mexico, and even the compartment of his vehicle in which he stored

contraband. The HSI agents’ investigation of Espinoza was thorough and 

based on reliable information, and Espinoza does not dispute that.

What Espinoza does dispute is the reliability of a single statement 

from the PSR: the case agent’s statement that the firearm components found 

in his vehicle were sufficient to comprise four to five fully assembled 

firearms. But at this stage of the analysis, in which we evaluate the reliability 

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and factual basis of the information contained in the PSR, we have no reason 

to doubt the veracity of a statement made by a trained HSI agent familiar with 

the case—particularly one set forth in a PSR that is otherwise reliable in every 

respect.

To be sure, “[b]ald, conclusionary statements” in a PSR do not bear 

sufficient indicia of reliability, and it is error for a district court to consider 

them. Harris, 702 F.3d at 230 n.2 (quoting United States v. Elwood, 999 F.2d 

814, 817–18 (5th Cir. 1993)). And “mere inclusion in the PSR does not 

convert facts lacking an adequate evidentiary basis . . . into facts a district 

court may rely upon at sentencing.” Id. But these are not those kinds of 

facts. Viewing the record as a whole, we are satisfied that the information 

contained in the PSR—which was based on a review of months of 

investigative material and at least one interview with the case agent—is

reliable and supported by adequate evidence.

B.

Because the PSR bore sufficient indicia of reliability, the burden shifts 

to Espinoza to offer rebuttal evidence demonstrating that the PSR contained 

“materially untrue, inaccurate[,] or unreliable” information. Id. at 230 

(quoting United States v. Huerta, 182 F.3d 361, 364–65 (5th Cir. 1999)). But

he did not do so. In his written objections to the PSR, Espinoza stated:

In the instant case, there were a number of component parts. 

However, it would appear that they would have been sufficient, 

at most, for one fully-assembled non-fully automatic firearm. 

For these reasons, Mr. Espinoza urges that the weapon at issue 

(fully assembled) would fall under U.S.S.G. § 2M5.2(a)(2)(A), 

and as such, a base offense level of 14 is appropriate. . . . In the 

event the Court overrules Mr. Espinoza’s objection to the base 

offense level, he would urge the Court to consider that the 

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item(s) in question did not amount to a weapon that was fully 

operational. Two fully-loaded fully-operational non-fully 

automatic rifles would trigger a base offense level of 14.

And later, at his sentencing hearing, Espinoza renewed his objection 

to the base offense level. His counsel argued as follows: 

Now, I looked at the items that we’re talking about, these 

component parts; and although I’m no gun expert or anything 

like that, you know, I know the agent may have said that that 

was enough to put together three or four firearms. I know it’s 

always dangerous when lawyers try to do math. I don’t think 

the numbers add up.

But this is hardly rebuttal evidence. Rebuttal evidence must consist of 

more than a defendant’s objection and argumentation; “[m]ere objections 

to . . . supported facts are generally insufficient.” Id. (citing United States v. 

Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)). Espinoza did not offer any 

evidence to support his written objections or his objections at the sentencing 

hearing. And his failure to do so is especially puzzling given the fact that 

evidence of the precise number of firearm components hewas smuggling, and 

testimony regarding how many firearms those components could conceivably 

comprise, strikes the court as the very kind of evidence he should be able to 

present. Indeed, it was in his best interest to do so. But he did not.

Due to the lack of testimony or evidence rebutting the case agent’s 

statement, the district court was entitled to adopt the PSR “without further 

inquiry or explanation.” Rodriguez, 602 F.3d at 363.

C.

Espinoza asserts on appeal that, because the firearm components 

listed in the PSR appear in the singular, rather than the plural, there must 

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have been only one of each component found in his vehicle. This contention

fails for two reasons. First, it is pure argumentation, which is not competent 

rebuttal evidence. Harris, 702 F.3d at 230 n.2. As previously discussed, 

Espinoza cannot rely on argumentation alone to carry his burden of providing 

evidence to rebut the information set forth in the PSR. Id.

Second, as the Government correctly observed, this contention is 

belied by the record. The HSI agent who arrested Espinoza testified in his 

affidavit that the search of Espinoza’s vehicle led to the discovery of 

“multiple firearms components for a semi-automatic rifle, including but not 

limited to: bolt carrier assembles, bolt catches, rear pistol grips, and triggers.” 

Likewise, the notice of forfeiture and the plea agreement both employed 

similar “includes, but is not limited to” language.

Espinoza counters that the PSR did not use this prefatory language 

when it listed the firearm components found in his vehicle. And, he 

continues, because the district court adopted the facts in the PSR and not 

from elsewhere in the record, the way the firearm components are listed in 

the PSR is determinative. But this argument is unpersuasive. The district 

court calculated Espinoza’s sentence based on a review of the whole record, 

not just the PSR. The PSR is merely a tool to aid the district court in

determining the facts relevant to sentencing; it is not bound by the PSR and 

the PSR alone. This argument is not a sufficient basis to find clear error.

D.

Espinoza also relies on a diagram from an online gun website listing 

the various components of an AK-47 rifle. The diagram purports to show

that a fully assembled AK-47 rifle has 63 components, only 10 of which were 

allegedly found in his vehicle and listed in the indictment and the PSR. 

Espinoza offered this illustration to show that the firearm components found 

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in his vehicle could not comprise a fully assembled firearm, let alone more 

than one.

The problem for Espinoza is that he did not present this diagram, or 

anything resembling it, to the district court. We will not consider factual 

evidence on appeal that Espinoza did not present to the district court, despite 

his ability to do so. See, e.g., Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 

(5th Cir. 1999) (“An appellate court may not consider new evidence 

furnished for the first time on appeal and may not consider facts which were 

not before the district court at the time of the challenged ruling.” (citing 

Great Plains Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962 (5th Cir. 

1995))). As previously discussed, Espinoza had multiple opportunities, and 

the incentive, to present the district court with rebuttal evidence showing 

that the information contained in the PSR was “materially untrue, 

inaccurate[,] or unreliable.” Harris, 702 F.3d at 230. But he did not. And 

we will not now consider evidence that the district court did not have the 

benefit of considering when calculating Espinoza’s sentence. Whether and 

to what extent the diagram and the case agent’s statement are in conflict is 

not for us to decide. Our review is limited to whether the district court, based 

on the information in the record, clearly erred in adopting the PSR. We 

conclude that it did not. 

IV. CONCLUSION

The district court did not reversibly err by adopting the PSR and 

applying a base offense level of 26 under § 2M5.2(a)(1) rather than a base 

offense level of 14 under § 2M5.2(a)(2)(A).

The judgment is AFFIRMED.

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