United States v. Ballesteros , 410 F. App'x 692 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5195
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILBUR BALLESTEROS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00288-RWT-8)
Submitted: December 29, 2010 Decided: February 3, 2011
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, James A. Crowell IV,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilbur Ballesteros pled guilty to conspiracy to commit
mail and wire fraud, 18 U.S.C. § 1349 (2006), and was sentenced
to a term of sixty-three months imprisonment. He appeals his
sentence, arguing that the district court clearly erred in
finding that he knew or should have known that the offense
involved vulnerable victims, U.S. Sentencing Guidelines Manual
§ 3A1.1(b)(1) (2009). We affirm.
The conspiracy was carried out using the Maryland
Money Store (MMS) and other corporations created by the
conspirators. Its object was to target financially distressed
homeowners who had substantial equity in their homes. MMS
advertised that its “foreclosure reversal program” could help
homeowners keep their homes by allowing title to their homes to
be transferred to third parties, or straw buyers, for one year,
to repair their credit. But once title was obtained, the
conspirators applied for new, fraudulently-inflated mortgage
loans, extracted the equity from the property, transferred the
sale proceeds from the escrow accounts to their business and
personal accounts, and converted much of the money to their
personal use.
During the conspiracy, Ballesteros worked as a
licensed real estate agent for Cap Title. He conducted real
estate settlements for MMS, served as the closing agent, and
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submitted fraudulent documentation to the lenders. At
Ballesteros’s sentencing, the government moved for a downward
departure under USSG § 5K1.1, p.s., based on his substantial
assistance, and informed the district court that he had provided
significant assistance because he understood the whole scheme as
well as its mechanics and was instrumental in making it
successful.
The guideline provides that a two-level adjustment
applies “[i]f the defendant knew or should have known that a
victim of the offense was a vulnerable victim.” Before making
the adjustment, the court must first determine that a victim was
“unusually vulnerable due to age, physical or mental condition,
or . . . otherwise particularly susceptible to the criminal
conduct.” USSG § 3A1.1 cmt. n.2. * See United States v. Llamas,
599 F.3d 381, 388 (4th Cir. 2010). The court must also find the
defendant knew or should have known of the victim’s unusual
vulnerability. Id. Because the court’s determination is
factual, it is reviewed for clear error. Id. Under USSG
§ 1B1.3(a)(1)(B), in a jointly undertaken criminal activity, the
*
The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability. Before the 1995 amendment to § 3A1.1,
Application Note 2 stated that the adjustment “applies to
offenses where an unusually vulnerable victim is made a target
of criminal activity by the defendant.” See app. C, amend. 521.
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defendant is responsible for “all reasonably foreseeable acts
. . . of others in furtherance of the jointly undertaken
criminal activity.”
Ballesteros argues that there was no evidence that he
knew or should have known of the victims’ unusual vulnerability.
However, there was evidence before the court that he had a
comprehensive knowledge of the scheme, the purpose of which was
to defraud financially vulnerable people. Ballesteros also
maintains that there was no connection between the victims’
vulnerability and the success of the crime. Here also, the
evidence that the point of the scheme was to defraud financially
vulnerable victims of their equity and that he was an essential
contributor to the scheme refutes his claim. We conclude that
the district court did not clearly err in making the adjustment
under § 3A1.1(b)(1).
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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