                                                                            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                              NOT FOR PUBLICATION                            MAR 15 2012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 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 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 would be entirely unwarranted.'), abrogated on other

grounds as recognized by United States v. Caperna, 251 F.3d 827 (9th Cir. 2001).

      Second, in applying the y 3553(a) factors, the district court did not adequately

tie its analysis of these factors to specific facts, especially given the degree to which

its sentence varied from the Guidelines range. ''[A] checµlist recitation of the section

3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable.''

United States v. Mix, 457 F.3d 906, 912-13 (9th Cir. 2006). Rather, 'the district court

must explain [its sentence] sufficiently to permit meaningful appellate review.' United


                                           2
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The requisite degree of

explanation 'will necessarily vary depending upon the complexity of the particular

case, whether the sentence chosen is inside or outside the Guidelines, and the strength

and seriousness of the proffered reasons for imposing a sentence that differs from the

Guidelines range.' Id. Whereas '[a] within-Guidelines sentence ordinarily needs little

explanation,' that is not the case for 'a sentence outside the Guidelines.' Id.; see also

Gall v. United States, 552 U.S. 38, 46 (2007) ('[A] district judge must give serious

consideration to the extent of any departure from the Guidelines and must explain his

conclusion that an unusually lenient or an unusually harsh sentence is appropriate in

a particular case with sufficient justifications.').

       Here, the sentence that the district court imposed--more than three times the

top of the Guidelines range and more than seven times that imposed on any other

defendant involved in the same crimes--called for a detailed explanation. Although

the district court made reference to the 'extent and nature of the fraud' that Espinoza

committed, the Guidelines account for the amount of loss caused by a crime of fraud.

U.S. Sentencing Guidelines Manual y 2F1.1 (2000). To the extent that the district

court had in mind features of Espinoza's crimes other than the amount of loss that

they caused, it did not explain its reasoning in a manner adequate 'to permit

meaningful appellate review,' Carty, 520 F.3d at 992.


                                             3
      For these reasons, we vacate the sentence for procedural error. We disagree,

however, with Espinoza's other claims of procedural error, and we express no view

as to whether a sixty-month sentence is or is not substantively reasonable for the

crimes of which Espinoza was convicted.

      VACATED AND REMANDED.




                                          4
                                                              FILED
United States v. Espinoza, No. 10-50202                        MAR 15 2012

                                                           MOLLY C. DWYER, CLERK
W. FLETCHER, Circuit Judge, dissenting:                     U.S . CO U RT OF AP PE A LS




      I would affirm the sentence of the district court.
