Case: 14-31425 Document: 00513707740 Page: 1 Date Filed: 10/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-31425 FILED
Cons. w/ No. 15-30012 October 6, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSHUA ESPINOZA,
Defendant-Appellant
---------------------------------------------------------------
Consolidated with No. 15-30012
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BOYD ANTHONY BARROW,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CR-146-5
USDC No. 6:12-CR-146-4
Case: 14-31425 Document: 00513707740 Page: 2 Date Filed: 10/06/2016
No. 14-31425
Cons. w/ No. 15-30012
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Joshua Espinoza and Boyd Anthony Barrow appeal following their guilty
plea convictions of conspiring to distribute and possess with intent to distribute
a mixture and substance containing a detectable amount of Schedule I
controlled substance analogues. The district court sentenced Espinoza to 61
months of imprisonment and Barrow to 70 months.
Espinoza and Barrow argue that the district court failed to appreciate
its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to vary
from the 1:167 drug equivalency ratio of U.S.S.G. § 2D1.1. We reject this claim
for the same reasons expressed in a related case arising from the same criminal
scheme. See United States v. Malone, 828 F.3d 331, 338-40 (5th Cir. 2016).
Further, to the extent Espinoza and Barrow assign error to the district court’s
equation of AM-2201 to synthetic tetrahydrocannabinol (THC), Malone
forecloses their claim. Id. at 337-38. Likewise, for the same reasons expressed
in Malone, we reject their argument that the district court erred in using the
1:167 ratio because it is not empirically based. Id. at 338.
In a separate argument, Barrow contends that the district court erred in
determining his base offense level based upon the quantity of AM-2201 that he
received, rather than the quantity of synthetic cannabinoid (“Mr. Miyagi”) that
he ultimately manufactured and distributed. Barrow does not dispute,
however, that in connection with his guilty plea, he stipulated that he “received
approximately 30 kilograms of AM-2201, a Schedule I controlled substance
analogue of JWH 018.” Moreover, as we observed in Malone, “the district court
* 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.
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gave . . . studied attention” to the drug calculation issue, “carefully consider[ed]
all [the] evidence,” and “issued a well-reasoned oral decision.” 828 F.3d at 337.
Barrow has not shown that the district court procedurally erred in its
application of the Guidelines and sentencing him based upon the stipulated
quantity of AM-2201. See United States v. Cisneros–Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008); United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005).
Finally, Barrow argues that the district court improperly limited the
degree of his U.S.S.G. § 5K1.1 sentence reduction by considering factors
unrelated to his assistance. We review this claim only for plain error because
Barrow did not alert the court to the possible error in order to give the court a
chance to amend the reduction or to clarify its reasons. See United States v.
Neal, 578 F.3d 270, 272 (5th Cir. 2009). “District courts have almost complete
discretion to determine the extent of a departure under § 5K1.1.” United States
v. Hashimoto, 193 F.3d 840, 843 (5th Cir. 1999). Nonetheless, “the extent of a
§ 5K1.1 or [18 U.S.C.] § 3553(e) departure must be based solely on assistance-
related concerns.” United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006).
The district court told Barrow that the 20 percent reduction under
§ 5K1.1 was “based on the relative cooperation of the parties,” yet it also noted
Barrow’s “role in the offense” and “the relative culpability of the defendants.”
If we assume without deciding that the court committed a clear and obvious
error by possibly conflating the § 3553(a) factors with assistance factors, we
nonetheless conclude that Barrow has not shown that any error affected his
substantial rights. That is, the record does not establish that, but for the
alleged consideration of an improper factor, Barrow would have received a
lesser sentence. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010);
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cf. Malone, 828 F.3d at 341 (finding no plain error where the district court
merely “muddled the steps” in formulating the sentence).
AFFIRMED.
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