United States v. Ledesma ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
USA v. Ledesma
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1563
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1563
UNITED STATES OF AMERICA
v.
TEODORO LEDESMA,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Crim. No. 00-cr-00096
District Judge: The Honorable Dickinson R. Debevoise
Submitted Under Third Circuit LAR 34.1(a)
November 17, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge
(Opinion Filed: December 20, 2005)
OPINION
*
The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Teodoro Ledesma appeals from his sentence of sixty-three months imprisonment
and five years supervised release for bank fraud. We will affirm.
Because the parties are familiar with the facts of the case, we mention only those
pertinent to our resolution of this appeal. Ledesma is a citizen of Mexico, and is not
legally resident in the United States. In 1997 and 1998, he stole approximately $244,000
from the Immaculada Federal Credit Union (“IFCU”) by selling IFCU money orders
without remitting the corresponding amounts to IFCU. At the same time, Alicia Bruno
stole approximately $256,000 from IFCU. Ledesma and Bruno acted independently but
used substantially identical schemes. The amount stolen by Ledesma and Bruno was
between half and three-quarters of IFCU’s total assets. In the spring of 1998, Ledesma
admitted to IFCU’s manager that he owed it over $200,000, which he promised to repay.
He did make some payments, but had stopped doing so by the spring of 1999.
IFCU was liquidated as insolvent by the National Credit Union Administration in
June of 1999. Ledesma and Bruno were charged with bank fraud under 18 U.S.C. § 1344,
an offense punishable by imprisonment of up to thirty years. Both pleaded guilty.
Ledesma’s plea agreement stipulated to many components of his Sentencing Guidelines
calculation but specifically indicated that Ledesma and the government had not agreed as
to the applicability to him of Specific Offense Characteristic § 2F1.1.(b)(7)(A) (1998) for
“substantially jeopardiz[ing] the safety and soundness of a financial institution.” When it
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applies, the base offense level is increased by four, to a minimum of twenty-four.
Ledesma’s sentencing was scheduled for August 21, 2000. He did not appear.
Instead, he fled, first to Nevada and then to Tennessee, assuming a number of false
identities along the way. On May 24, 2004, he was arrested in Harriman, Tennessee, for
driving while under the influence of alcohol. In the intervening four years, Bruno had
been sentenced to thirty-seven months imprisonment. The government introduced
evidence of IFCU’s collapse at Bruno’s sentencing hearing, and the District Court found
in its statement of reasons that both Ledesma and Bruno had caused a substantial portion
of the total loss that forced IFCU into insolvency.
Ledesma was sentenced on February 14, 2005 by the same District Judge who had
sentenced Bruno. His presentence investigation report (PSR) largely mirrored his plea
agreement in its recommended sentence, albeit with adjustments related to his flight. The
PSR recommended that the District Court find that § 2F.1.1(b)(7)(A) applied. Ledesma
objected to this recommendation by letter to the probation office and at his sentencing
hearing. He also argued that he deserved a shorter sentence because he had made efforts
to repay IFCU, because he had no criminal record, and because he was willing to subject
himself to deportation proceedings. The District Court rejected Ledesma’s arguments. It
found that § 2F1.1(b)(7)(A) applied because Ledesma’s and Bruno’s thefts caused
IFCU’s liquidation; with respect to Ledesma’s other arguments, it stated, “In the exercise
of my discretion I am taking these circumstances into account when determining the
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appropriate sentence.” The total offense level was twenty-six, which, when combined
with Ledesma’s lack of a criminal history, resulted in a sentencing range of sixty-three to
seventy-eight months imprisonment. Finding that this range was “appropriate,” the
District Court sentenced Ledesma to sixty-three months imprisonment, five years
supervised release, and payment of restitution. Ledesma appealed.1
Ledesma first contends that the District Court erred by sentencing him without
considering the statutory requirements of 18 U.S.C. § 3553(a). That subsection requires
the sentencing judge to “consider” seven factors, of which the applicable Guidelines
range is only one. According to Ledesma, the District Court entirely disregarded the other
six factors. We disagree. The District Court’s statement of reasons repeatedly recognized
the discretion with which it was vested and the factors that were to inform that discretion.
Neither § 3553(a) nor United States v. Booker, 125 S. Ct. 738 (2005), requires that it do
more. “[The Federal Sentencing Act post-Booker] requires a sentencing court to consider
Guideline ranges, but it permits the court to tailor the sentence in light of other statutory
concerns, as well.” Booker, 125 S. Ct. at 757 (citations omitted) (emphasis added). The
District Court considered those other concerns but chose not to tailor the sentence further.
1
We have jurisdiction under 18 U.S.C. § 3742(a). We apply plenary review to
questions of law, including the District Court’s interpretation of the Sentencing
Guidelines. See, e.g., United States v. Moorer, 383 F.3d 164, 167 (3d Cir. 2004). We
review the District Court’s determinations of fact for clear error, with due deference to its
application of the Guidelines to the facts. See, e.g., United States v. Thomas, 327 F.3d
253, 255 (3d Cir. 2003).
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Ledesma next argues that there was insufficient evidence to establish that he
jeopardized the soundness of a financial institution. We disagree. Ledesma stole an
amount equivalent to more than a quarter of IFCU’s total assets; the National Credit
Union Administration indicated that his and Bruno’s thefts led directly to IFCU’s
collapse. Ledesma never offered any evidence to the contrary. The District Court had
more than sufficient evidence from which to find that § 2F1.1(b)(7) applied.2
Finally, Ledesma argues that Booker forbade the District Court from increasing his
sentence based on its own fact-finding. He misapprehends Booker, which applies only to
facts “necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty.” Booker, 125 S. Ct. at 756. Ledesma’s sentence was well
within the thirty-year statutory maximum for bank fraud. See 18 U.S.C. § 1344. As
jeopardizing the soundness of a financial institution was not an element of the crime of
bank fraud, the District Court was permitted to make that factual determination by a
preponderance of the evidence. See United States v. Miller, 417 F.3d 358, 362-63 (3d Cir.
2005).
We will affirm the judgments of conviction and sentence of the District Court.
2
Ledesma had ample opportunity to present evidence in rebuttal. See Fed. R. Crim. P.
32(i)(2). He also was on “fair notice” of the evidence upon which the District Court
relied. See United States v. Reynoso, 254 F.3d 467 (3d Cir. 2001).
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