“Seeing” Is Still Believing: Clear-Error Review of District-Court Findings Based on Video Evidence after United States v. Espinal (2d Cir. 2025)

1. Introduction

The Second Circuit’s summary order in United States v. Espinal, No. 24-2110 (Aug. 11, 2025), addresses three hot-button topics in federal criminal practice:

• the continued constitutionality of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), following NYSRPA v. Bruen;
• the correct Sentencing Guidelines calculus when gunfire injures an unintended by-stander; and
• most notably, the appropriate appellate standard for reviewing a district court’s factual findings drawn from video evidence.

Although designated a “summary order” with no formal precedential effect under the Circuit’s Local Rule 32.1.1, Espinal is already being cited for its succinct reaffirmation that factual findings—even those made from undisputed video footage—remain subject to the deferential clear-error standard on appeal. That principle supplies the thematic spine of this commentary.

2. Summary of the Judgment

Luis Espinal, a previously convicted felon, fired two shots at a man (“Victim-1”) after a street altercation in the Bronx; a by-stander (“Victim-2”) was struck in the leg. Espinal pleaded guilty to possession of ammunition by a felon under § 922(g)(1) but challenged both the statute’s constitutionality and the district court’s Guidelines determinations. The Second Circuit:

1. Rejected Espinal’s constitutional attack, citing its intervening precedential decision in Zherka v. Bondi, which upheld § 922(g)(1) post-Bruen.
2. Affirmed the district court’s application of the Sentencing Guidelines—specifically:
   • the use of the § 2A2.1 attempted-murder base offense level (offense level 27), and
   • a two-level enhancement for inflicting serious bodily injury on Victim-2.
3. Confirmed that the lower court’s factual findings—Espinal’s intent to kill and his responsibility for Victim-2’s wound—were reviewed for clear error notwithstanding the existence of video footage.
4. Held that no procedural error or plain error infected the 80-month sentence, which was below the computed Guidelines range (110–137 months).

3. Detailed Analysis

A. Precedents Cited and Their Influence

• Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025) – The Second Circuit’s first comprehensive post-Bruen analysis of § 922(g)(1). Espinal treats Zherka as binding, foreclosing both facial and as-applied challenges.
• NYSRPA v. Bruen, 597 U.S. 1 (2022) – The Supreme Court’s history-and-tradition framework triggered a wave of challenges to firearms regulations. While Espinal invoked Bruen, the panel found that Zherka resolved the issue.
• United States v. Gotti, 459 F.3d 296 (2d Cir. 2006) – Provides the bifurcated standard (de novo vs. clear error) for reviewing Guidelines applications. The panel applied the “primarily factual” label to the district court’s determinations, hence clear-error review.
• Anderson v. City of Bessemer City, 470 U.S. 564 (1985) – Supreme Court authority that clear-error review applies even when findings are based on physical or documentary evidence.
• United States v. Malpeso, 115 F.3d 155 (2d Cir. 1997) – Addresses injury enhancements when unintended victims are harmed; used by Espinal but distinguished by the panel.
• Other supportive authorities: United States v. Singh (procedural reasonableness), United States v. James (specific intent as factual), Molina-Martinez v. United States (Guidelines anchoring effect), and Greer v. United States (plain-error test).

B. The Court’s Legal Reasoning

1. Constitutional Issue. Espinal mounted both facial and as-applied Second Amendment challenges. The panel’s one-paragraph disposition simply invoked Zherka, illustrating “vertical stare decisis” within the Circuit and signalling that district courts should summarily dispose of similar challenges unless the Supreme Court rules otherwise.
2. Standard of Review for Video Evidence.

   The crux of the order is the reaffirmation that fact-finding drawn from video footage does not transform appellate review into de novo. Citing Rule 52(a)(6) and Anderson, the panel stressed that credibility assessments are only one reason for deference; factual inference itself warrants respect. This resolves lingering uncertainty after the Supreme Court’s qualified-immunity trilogy (Scott v. Harris, Tolan v. Cotton) where video sometimes prompted de novo review on summary judgment. In criminal sentencing, however, clear-error remains the touchstone.

3. Guidelines Calculations.
   • Attempted-Murder Base Level (§ 2A2.1). The district court’s inference that Espinal fired twice at close range, continued shooting after Victim-1 fled, and lacked a self-defense claim supported a finding of specific intent to kill.
   • Two-Level Injury Enhancement (§ 2A2.1(b)(1)(B)). Factual causation was affirmed as not clearly erroneous; legal applicability was reviewed only for plain error because Espinal did not press the issue below. The panel further explained that even if Malpeso rendered the enhancement inapplicable, an upward departure (§ 5K2.0) or Application Note 2 to § 2A2.1 would likely have produced the same result, negating prejudice.

C. Potential Impact on Future Litigation

1. Video Evidence & Appellate Review. Practitioners should expect clear-error deference whenever district courts parse body-cam, CCTV, or cell-phone footage during sentencing or suppression hearings. Arguments for de novo review must identify a pure legal question, not simply dispute factual inference from a video.

2. Second Amendment Challenges to § 922(g)(1). Until the Supreme Court revisits felon disarmament, Zherka—reinforced in Espinal—locks that door in the Second Circuit.

3. Sentencing Strategy Post-Espinal. Defense counsel must object to every Guidelines enhancement; otherwise plain-error hurdles loom large. Additionally, even “victim-wrong” shootings can attract upward departures, making it risky to rely solely on Malpeso-style arguments.

4. Complex Concepts Simplified

• Clear-Error Review: An appellate court overturns a fact-finding only if it “is left with the definite and firm conviction that a mistake has been committed.” It is a highly deferential lens.
• Base Offense Level vs. Enhancements: The Sentencing Guidelines start with a baseline offense level (here, attempted murder = 27). Additional factors (injury, weapon, role) can raise or lower that level.
• Upward Departure vs. Enhancement: An enhancement is baked into the Guidelines text; a departure is the court’s discretionary movement outside the calculated range for atypical facts.
• Plain-Error Review: Applies when a claim wasn’t raised below. The defendant must show (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness or integrity of the proceedings.
• Anchoring Effect of the Guidelines: Even after Booker, the advisory range strongly influences sentencing; appellate courts assume prejudice when the range is mis-calculated, unless the record dispels that assumption.

5. Conclusion

United States v. Espinal may be a “non-precedential” summary order, but its practical guidance is weighty:

1. Section 922(g)(1) remains intact in the Second Circuit post-Bruen.
2. District-court fact-finding—even from crystal-clear video footage—gets clear-error deference on appeal.
3. Sentencing disputes hinged on specific intent, causation, or unintended victims must be preserved meticulously at the trial level.

In short, when it comes to what a video “shows,” the trial judge’s eyes still matter most. Appellate counsel must focus on overt legal missteps; mere disagreement with a district court’s reading of the pixels will rarely suffice.