United States v. Hernandez-Espinoza, No. 17-2065 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit affirmed defendant's conviction for misusing a social security number and for the statutorily mandated two additional years in prison for aggravated identity theft. The court held that the district court did not err in considering defendant's prior unobjected-to conduct showing that defendant, then nineteen, had sex with a fifteen year old girl ten to fifteen times, in determining whether to vary upward; in denying defendant's request to move the paragraph detailing the sexual-conduct charge from the "Adult Criminal Conviction(s)" section of the PSR to the "Other Arrests" section; by imposing the $5,000 fine; in considering the pretrial services report to impeach defendants; and by imposing the fine before allocution.
Court Description: Arnold, Author, with Colloton and Shepherd, Circuit Judges] Criminal Case - sentence. After challenging inclusion of a deferred prosecution to a third-degree criminal sexual conduct charge as a history point and the probation officer?s agreement to exclude the assessment of the criminal history point, it was not error for district court to consider the conduct in determining whether to vary upward; and it was not error to include the charge in "Adult Criminal Conviction" section rather than the "other arrests" section of the presentence investigation report. District court's imposition of fine was not error, as district court explicitly found he had the ability to pay the fine; the district court did not err in considering his pretrial services report to impeach the defendants for purposes of fixing a sentence; and the district court did not err in imposing the fine before allocution.
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