United States v. Colon-Rodriguez , 696 F.3d 102 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-2236
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN COLÓN-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Selya and Lipez, Circuit Judges.
Victor J. González-Bothwell, with whom Héctor E. Guzman-Silva,
Federal Public Defender, and Patricia A. Garrity, Assistant Federal
Public Defender, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
October 2, 2012
LIPEZ, Circuit Judge. Hurricane Georges struck Puerto
Rico on September 21, 1998. In the storm's wake, the island was
declared a "major disaster" area eligible for various federal aid
programs. See United States v. Alfonzo-Reyes, 592 F.3d 280, 284
(1st Cir. 2010). One such program, administered by the Farm
Service Agency ("FSA"), offered low-interest emergency loans to
qualified farmers to help restore farming operations or rebuild
structures damaged by the hurricane. See id.Because of the complexity of the loan application
process, the FSA trained a number of independent contractors to
assist farmers in preparing and filing the necessary documentation.
Among these contractors was appellant Juan Colón-Rodríguez
("Colón"), an agronomist with a degree in agricultural sciences.
In all, Colón submitted successful loan applications on behalf of
at least eight farmers, earning approximately $45,000 in
commissions. During a 2002 audit, however, the FSA discovered a
series of irregularities in these applications. Colón was indicted
in late 2007 and convicted in 2009 in the United States District
Court for the District of Puerto Rico on twelve counts of making
false statements on FSA loan applications in violation of 18 U.S.C.
§ 1014 and one count of defrauding a financial institution in
violation of 18 U.S.C. § 1344. He was found not guilty on five
other counts.
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After the verdict, Colón moved for a judgment of
acquittal, contesting the sufficiency of the evidence against him.
The district court summarily denied the motion. The court then
sentenced Colón to thirty-seven months' imprisonment on each count,
to be served concurrently. On appeal, Colón challenges the
sufficiency of the evidence for three of his convictions and his
sentence as substantively unreasonable. For the reasons described
below, we affirm two of the challenged convictions, vacate the
third, and affirm the sentence.
I.
We begin with Colón's motion for a judgment of acquittal,
the denial of which we review de novo. See United States v.
Rodríguez-Vélez, 597 F.3d 32, 38 (1st Cir. 2010). Colón argued to
the district court that there was insufficient evidence to support
his conviction on any count. His focus on appeal is narrower. He
takes aim only at Counts Three, Ten, and Eighteen. We scrutinize
the relevant evidence in the light most favorable to the verdict,
which "must stand unless the evidence is so scant that a rational
factfinder could not conclude that the government proved all the
essential elements of the charged crime beyond a reasonable doubt."
Id. at 39 (emphasis omitted).
A. Counts Three and Ten
Count Three charged Colón with violating 18 U.S.C. § 1014by making a false statement on an FSA loan application he filed on
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behalf of José Aponte-Díaz ("Aponte"), a poultry farmer.1 Count
Ten charged the same conduct with respect to another farmer,
Adalberto Flores-Zayas ("Flores"). "To establish a violation of
§ 1014, the government must prove that (1) the defendant made a
false statement; (2) the defendant acted knowingly; and (3) the
false statement was made for the purpose of influencing action on
the loan." Alfonzo-Reyes, 592 F.3d at 291. It is undisputed that
the government introduced sufficient evidence as to the third of
these elements. In our view, there also was sufficient evidence of
the other two elements on both counts.
1. Count Three
The evidence showed that Colón helped Aponte apply for
and obtain a $305,015 emergency loan from the FSA shortly after
Hurricane Georges, charging a two-percent commission for his
services. However, some of the statements made by Colón in filling
out Aponte's loan application were false.2 Contrary to Colón's
1
18 U.S.C. § 1014 criminalizes, inter alia, the making of a
false statement to the "Secretary of Agriculture acting through the
Farmers Home Administration or successor agency." The FSA is a
successor agency to the Farmers Home Administration and, hence,
within the statute's ambit. See Alfonzo-Reyes, 592 F.3d at 288-89;
United States v. Barreto-Barreto, 551 F.3d 95, 97 (1st Cir. 2008);
see also 7 U.S.C. § 6932(b)(3).
2
Although the forms bore Aponte's signature, evidence in the
record indicates that Colón filled them out. Colón does not
dispute that writing misinformation on the forms is sufficient to
establish that he made a false statement within the meaning of 18
U.S.C. § 1014. Cf. United States v. Tremont, 429 F.2d 1166, 1168-
69 (1st Cir. 1970) (sustaining conviction under 18 U.S.C. § 1010for making false statement to Department of Housing and Urban
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assertions, the record discloses more than sufficient evidence to
support his conviction. For example, the application stated that
the storm had caused $115,950 of damage to four poultry barns
belonging to Aponte. During trial, Aponte testified that he had
only owned two barns at the time of the storm. The other two barns
were purchased later, long after the storm, with proceeds from the
FSA loan. What is more, Aponte testified that he had informed
Colón that he planned to spend some of the loan proceeds on the new
barns. While the government may have lacked other forms of direct
evidence that demonstrated the falsity of Aponte's statements, a
rational jury easily could have relied on the trial testimony, as
well as reasonable inferences drawn from that testimony, to
conclude that Colón knew the amount of damages claimed on the
application to be false. See Alfonzo-Reyes, 592 F.3d at 291("Direct evidence is not required to find [a defendant] guilty, and
juries are entitled to draw reasonable inferences at trial based on
circumstantial evidence.").
Colón attempts to explain Aponte's testimony by
characterizing it as a mere failure to recall the specific number
of barns he owned, and points to evidence corroborating the amount
Development where defendant wrote fraudulent information on
application that was ultimately signed by another); United States
v. Sackett, 598 F.2d 739, 741-42 (2d Cir. 1979) (upholding
conviction where defendant made oral misrepresentations regarding
financial condition that were transferred by another person to loan
application that defendant did not fill out or sign).
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of loss documented in the application. “[T]he possibility of
innocuous explanations for [a defendant's] behavior does not
foreclose the jury's contrary inferences," however. United States
v. Ortiz, 447 F.3d 28, 33 (1st Cir. 2006). While Colón was
certainly entitled to make these arguments to the trier of fact,
the jury had a more than sufficient basis for rejecting his
explanations and returning a verdict against him. Consequently,
Colón's motion as to Count Three was correctly denied.
2. Count Ten
The same is true of Count Ten. The government proved
that, hoping to restore his farm to working order, Flores hired
Colón to prepare his FSA loan application. Lillian Mateo, Flores's
wife and business partner, testified that she and her husband had
signed blank paperwork for Colón to complete.3 According to Mateo,
however, when the application was approved, she and Flores were
"surprised" to receive a loan of $250,000, since they had only been
expecting $150,000. When showed a copy of the loan application
during trial, Mateo said that several of the claimed items of
damage had been exaggerated. For example, the application listed
$45,000 in losses to the farm's warehouses and $73,500 in losses to
the greenhouses, but these amounts were more than was required to
repair the damaged structures.
3
Flores was unavailable to testify at trial due to a medical
condition.
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Seeking to rebut the force of this evidence, Colón
testified in his own defense that he had occasionally spoken with
Flores outside of Mateo's presence and that all of the figures
listed on the loan application had, in fact, come from Flores. If
accepted as true, Colón's testimony might have undercut the
government's case against him, as it could have created reasonable
doubt regarding whether he had known the statements on Flores's
loan application to be false. However, "witness credibility is
. . . a call for the jury," United States v. Jones, No. 10-1894,
2012 WL 954755, at *2 (1st Cir. Mar. 22, 2012), and it was the
jury's prerogative to disbelieve Colón's story, see United States
v. Manor, 633 F.3d 11, 14 (1st Cir. 2011); United States v.
Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008). Crediting Mateo's
testimony -- particularly her recollection that both she and her
husband had been "surprised" by the amount of their FSA loan -- a
rational jury could have found that Colón knowingly inflated the
amount of damages claimed on Flores's application. Therefore, the
district court did not err in denying Colón's motion for a judgment
of acquittal as to Count Ten.
B. Count Eighteen
There was an error in the court's denial of Colón's
motion for a judgment of acquittal with respect to Count Eighteen,
which charged him with defrauding a financial institution in
violation of 18 U.S.C. § 1344. The elements of this crime are well
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established: "(1) the defendant must engage in a scheme or artifice
to defraud, or must make false statements or misrepresentations to
obtain money from (2) a financial institution and (3) must do so
knowingly." United States v. Blasini-Lluberas, 169 F.3d 57, 64
(1st Cir. 1999).
No rational jury could have concluded that the government
proved the second of these elements beyond a reasonable doubt. As
the government has conceded, it offered no evidence that the FSA
qualified as a "financial institution" at the time of the offense
conduct in this case, as that term was then defined by 18 U.S.C.
§ 20.4 Accordingly, Colón's conviction on Count Eighteen must be
reversed.
II.
Based on the date of the offense conduct in this case,
Colón's sentence was determined by reference to the 1998 edition of
the United States Sentencing Guidelines ("Guidelines"). See USSG
§ 1B1.11(b)(1) (1998). Starting from a base offense level of six,
see id. § 2F1.1(a), the district court added a two-level increase
4
Subsequent to the events in this case, Congress amended the
definition of "financial institution" in 18 U.S.C. § 20 to include
a "mortgage lending business." See Fraud Enforcement and Recovery
Act of 2009, Pub. L. No. 111–21, § 2(a)(3); see also United States
v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010). A mortgage
lending business is "an organization which finances or refinances
any debt secured by an interest in real estate, including private
mortgage companies and any subsidiaries of such organizations, and
whose activities affect interstate or foreign commerce." 18 U.S.C.
§ 27. This case does not require us to decide whether the FSA is
included within the expanded definition of "financial institution."
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for obstruction of justice, see id. § 3C1.1, and another two-level
increase because Colón's crimes had involved "more than minimal
planning," id. § 2F1.1(b)(2)(A). The court also added an eleven-
level increase because the loss associated with the falsified loan
applications totaled more than $800,000.5 See id. §
2F1.1(b)(1)(L). These increases brought the total offense level to
twenty-one and, paired with a criminal history category of I,
produced an advisory Guidelines sentencing range ("GSR") of thirty-
seven to forty-six months' imprisonment. After taking into account
the sentencing factors enumerated in 18 U.S.C. § 3553(a), the
district court imposed an incarcerative term at the bottom of the
GSR: thirty-seven months on each count, to be served concurrently.
5
The presentence report ("PSR") noted that the loans that
were part of the indictment totaled about $2.27 million. Some of
the disbursed money was justified by the borrowers' needs; once
that amount was subtracted, the PSR concluded that the total amount
Colón fraudulently obtained was about $1.65 million. Only $360,000
of this amount had been repaid, meaning that the defendant's
conduct had therefore resulted in more than $800,000 but less than
$1.5 million of loss. See USSG § 2F1.1(b)(L)-(M). The PSR
observed, however, that since collection efforts were ongoing and
because many borrowers stopped their farming operations for reasons
other than Colón's fraudulent activities, the government lacked
reliable information concerning the "specific" loss amount
attributable to the defendant's conduct. The district court
appeared to adopt this reasoning at sentencing, when it found that
"an exact amount of loss could not reasonably be determined" but
that Colón's conduct had resulted in at least $800,000 of loss. At
oral argument, Colón characterized this reasoning as an intended
loss calculation. We make no judgment on that point. What matters
for this appeal is that Colón does not challenge the $800,000
figure.
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Colón challenges this sentence as substantively
unreasonable. He concedes the correctness of the district court's
GSR calculation but claims he was entitled to a downward variance
due to the existence of mitigating circumstances. He says the
$800,000 loss figure, while accurate, significantly overstated the
seriousness of his conduct, particularly since he only earned
approximately $45,000 in commissions.6 See United States v. Pol-
Flores, 644 F.3d 1, 5 (1st Cir. 2011) ("[O]ne ground supporting a
below-guideline sentence could be that the intended loss attributed
to [the defendant] overvalued the seriousness of the offense."
(internal quotation marks omitted)). He also points out that none
of the farmers whose loan applications he falsified were charged
with any crimes, and he insists that he and his family suffered
immensely during the long (and unexplained) interim between when
his crimes were first investigated in 2002 and when he was finally
brought to trial in 2009.
"[W]e review sentencing decisions for abuse of
discretion." United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st
6
As we recently explained in United States v. Appolon, ___
F.3d ____, 2012 WL 4120401, at *15 (1st Cir. Sept. 19, 2012), the
defendant's gain should only be used to measure loss "as a last
resort," in the event that "neither actual loss nor intended loss
can be gauged . . . ." Colón does not challenge the district
court's decision to use an intended loss measure to establish the
applicable GSR, but he remains entitled to argue that the sentence
was substantively unreasonable because the intended loss
"overvalued the seriousness of the offense." United States v.
Thurston, 456 F.3d 211, 219 (1st Cir. 2006), rev'd on other
grounds, 552 U.S. 1092 (2008).
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Cir. 2011); see also United States v. Fernández-Hernández, 652 F.3d
56, 71 (1st Cir. 2011). "In assessing the substantive
reasonableness of a sentence, it is significant that the sentence
falls within the GSR." Madera-Ortiz, 637 F.3d at 30. "[A]
defendant who attempts to brand a within-the-range sentence as
unreasonable must carry a heavy burden." United States v.
Pelletier, 469 F.3d 194, 204 (1st Cir. 2006); see also United
States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011)
("Challenging a sentence as substantively unreasonable is a
burdensome task in any case, and one that is even more burdensome
where, as here, the challenged sentence is within a properly
calculated GSR."). Such a defendant "must adduce fairly powerful
mitigating reasons and persuade us that the district court was
unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be reasonable." Madera-
Ortiz, 637 F.3d at 30 (internal quotation marks omitted).
Colón has not carried his burden. The district court
adequately, if succinctly, explained the rationale behind its
sentencing decision. See Madera-Ortiz, 637 F.3d at 31 ("To be
sure, the sentencing court's explanation for the sentence is terse.
But brevity is not to be confused with inattention." (internal
quotation marks omitted)); United States v. Turbides-Leonardo, 468
F.3d 34, 41 (1st Cir. 2006) ("[S]entences that fall inside a
properly calculated [GSR] require a lesser degree of explanation
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than those that fall outside the [GSR]."). In particular, the
court observed that Colón had engaged in a "serious scheme to
defraud" the FSA and that his crimes contributed to an
unprecedented shortfall in the FSA's emergency loan funding,
jeopardizing the agency's ability to provide aid. See Alfonzo-
Reyes, 592 F.3d at 287 ("[T]he fraudulent loans made as a result of
Hurricane Georges' disaster depleted the FSA emergency funds in a
single fiscal year for the first time in the program's history.").
The district court also noted that, in fashioning Colón's
sentence, it had considered the various sentencing factors set
forth in 18 U.S.C. § 3553(a), including Colón's lack of criminal
history and familial responsibilities. See Madera-Ortiz, 637 F.3d
at 31 ("[O]n appeal, the fact that the court stated that it had
considered all the section 3553(a) factors is entitled to some
weight." (internal quotation marks omitted)). That the court chose
to attach less significance to certain mitigating circumstances
than Colón thinks they deserved does not make his sentence
substantively unreasonable. See Clogston, 662 F.3d at 593. As we
have said, the weighing of different sentencing factors "is largely
within the court's informed discretion." Id.; see also Madera-
Ortiz, 637 F.3d at 31.
In sum, after considering the relevant sentencing
factors, the district court "articulate[d] a plausible rationale
and arrive[d] at a sensible result." United States v. Carrasco-de-
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Jesús, 589 F.3d 22, 30 (1st Cir. 2009). Hence, there was no abuse
of discretion in the court's imposition of a sentence at the bottom
of Colón's GSR.7
III.
Colón's conviction on Count Eighteen is reversed and his
sentence on that count is vacated. In all other respects, the
judgment of the district court is affirmed.
So ordered.
7
Colón stated at oral argument that he does not seek a
resentencing in light of the vacatur of his conviction on Count
Eighteen. Since he received identical concurrent sentences on each
count of conviction, he took the position that his acquittal on
this count will not shorten the time he must spend in prison.
Accordingly, we will not order a resentencing that Colón has
expressly declined.
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