United States v. Bribiesca ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-50405
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RICARDO BRIBIESCA, MANUEL PACHECO, ALSO KNOWN AS
MANUEL OCTAVIO PACHECO ALVAREZ, FELIPE ZARAGOZA,
RMI SERVICES INTERNATIONAL,
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-95-CR-171-2)
___________________________________________________
June 29, 199
Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Defendants-Appellants Manuel Pacheco, Felipe Zaragoza, and
Ricardo Bribiesca appeal their respective convictions and sentences
for violations of the Travel Act, 18 U.S.C. § 2314, money
laundering, and conspiracy. For reasons that follow, we affirm the
defendants' convictions, vacate their sentences, and remand for
resentencing.
I.
This case arises out of the operations of Defendant RMI
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Services International, Inc. ("RMI"), which from 1991 to 1995
carried out a scheme to defraud cash-strapped businesses in Mexico
of millions of dollars. Pacheco opened RMI in April 1991 in San
Antonio, Texas. Zaragoza and Bribiesca were brought in as employees
of RMI, and remained so until the FBI shut the operation down in
June 1995. The defendants falsely held themselves out as
sophisticated middlemen in the arena of international finance. They
falsely claimed to have good contacts with legitimate financial
institutions and lenders worldwide from whom they could obtain
loans for their customers. Under this guise, the defendants induced
their victims to travel from Mexico to the United States and to pay
millions of dollars' worth of fees to RMI.
Though the particulars of the scheme changed and became more
sophisticated over time, RMI's activities followed a characteristic
pattern.1 Its customers came primarily from Mexico, where business
financing was difficult to obtain. In nearly every instance, the
customer was at a point of desperation, and was hoping to obtain
multi-million dollar loans in the international lending community
to consolidate his debts and to keep his business alive. Upon
arriving at RMI, the customer was treated like royalty. Pacheco
made a presentation on the international services he could provide,
and regardless of how bleak the financial situation was, he
invariably informed the customer that RMI could secure for him the
1
The record below encompasses a trial transcript in excess of
10,000 pages and thousands of pages of documentary exhibits
detailing the particulars of the defendants' scheme. Lacking both
the inclination and the resources to recount the entire record
here, we necessarily confine our description of the defendants'
actions to a general summary.
2
loans he needed. First, however, the customer was required to pay
RMI significant advance fees for a "feasibility study." These
studies consisted of translating the customers' business and
financial documents into English and appraising their properties.
RMI misrepresented the qualifications of the people preparing the
studies and overcharged for their services. The studies were then
assembled into leather binders that supposedly were to be presented
to financial institutions in support of the customers' loan
requests. More often, however, the binders were merely kept in
Zaragoza's office.
Once the preliminary work was completed, Pacheco usually
informed the customer that he could expect his loan within thirty
days. Contrary to this assurance, however, the customer soon met
with excuses and delays. As time passed and the customer became
increasingly anxious, Pacheco would propose an alternate plan for
quick funding, typically a letter of credit. In order to obtain the
letter of credit, the customer was required to pay additional fees
based on the face value of the instrument. When the customer
received the letter of credit, however, he quickly discovered that
it was worthless. Moreover, the customer then found that Pacheco
had disappeared and could not be contacted. It was undisputed at
trial that no RMI customer ever received a loan or a valid letter
of credit through the efforts of RMI.
In August 1996, a grand jury issued a 44-count superseding
indictment against RMI, Pacheco, Zaragoza, and Bribiesca. Counts 1-
42 alleged individual violations of 18 U.S.C. § 2314, and aiding
and abetting such violations. Count 43 alleged money laundering in
3
violation of 18 U.S.C. § 1956(a)(2)(a), and aiding and abetting
such money laundering. Count 44 alleged conspiracy to carry out the
scheme in violation of 18 U.S.C. § 371. The government also
included a demand for civil forfeiture of various properties,
including real estate, motor vehicles, and bank accounts, pursuant
to 18 U.S.C. §§ 1956(a)(2)(A), 2314, and 982(a)(1).
Trial commenced in October 1996, and concluded in December
1996. The jury returned 22 guilty verdicts against Pacheco--20
Travel Act counts2 plus the money laundering and conspiracy counts.
Pacheco was sentenced to concurrent terms of 60 months', 132
months', and 180 months' imprisonment on the conspiracy, Travel
Act, and money laundering offenses, respectively. Additionally, he
received concurrent 3-year supervised release terms, a $1,150
mandatory special assessment, and was ordered to pay $8,115,562 in
restitution. The jury found Zaragoza guilty on 10 Travel Act counts
plus the money laundering and conspiracy counts. He was sentenced
to concurrent terms of 60 months' imprisonment on the conspiracy
offense and 90 months on the Travel Act and money laundering
offenses. He further received concurrent 3-year supervised release
terms, a $600 mandatory special assessment, and was ordered to pay
$8,115,562 in restitution. The jury found Bribiesca guilty on 9
Travel Act counts plus the money laundering and conspiracy counts.
2
Before trial, the government and the defense reached a
Stipulation and Agreement whereby the government agreed to present
only half of the 42 Travel Act counts to the jury and to dismiss
the remaining counts prior to deliberations, and the defense
agreed, inter alia, to stipulate that the clients named in the 21
dismissed counts had paid the amounts listed in the indictment and
had not received any loans. During trial, the government dropped
another Travel Act count and went forward only on the 20 remaining
Travel Act counts plus the money laundering and conspiracy counts.
4
Bribiesca was sentenced to concurrent terms of 97 months'
imprisonment on the conspiracy offense and 60 months on the Travel
Act and money laundering offenses. He also received concurrent 3-
year supervised release terms, a $550 mandatory special assessment,
and was ordered to pay $6,600,692 in restitution. This appeal
followed.
II.
Pacheco objects to the government's pursuit of multiple civil
forfeiture lawsuits in the months leading up to his criminal trial,
arguing that the government's actions exhausted his resources,
chilled his ability to defend himself, and violated due process and
fundamental fairness. This argument is without merit. There is no
constitutional, statutory, or common law rule barring the
simultaneous prosecution of separate civil and criminal proceedings
against the same defendant. The Supreme Court has expressly held
that the government may pursue civil and criminal actions either
simultaneously or successively. Standard Sanitary Manufacturing Co.
v. United States, 226 U.S. 20, 52 (1912); United States v. Kordel,
397 U.S. 1, 11 (1970). Apart from his groundless assertion that the
government's very pursuit of civil forfeiture in this case
evidences bad faith, Pacheco fails to present any evidence that the
government was motivated by anything other than its legitimate
interest in recovering stolen property. Indeed, the government
moved to stay the civil forfeiture proceedings pending the
resolution of the criminal proceeding. These are hardly the actions
of a body intent on using its "awesome and coercive power" to
deprive a defendant of due process and fundamental fairness. We
5
conclude that no right of Pacheco's was violated, and that no
prejudice resulted from the government's simultaneous pursuit of
civil forfeiture and criminal prosecution.
III.
Pacheco and Zaragoza both challenge the trial court's ruling
admitting in evidence, without limitation, a threatening letter.
This letter was sent by Maruicio Aguirre Orcutt, an employee of
RMI, to Eugenio Albo Moreno, a former client of RMI who had
attempted to expose RMI's fraudulent practices. Pacheco argues that
the letter should have been excluded under Fed. R. Evid. 404(b),
because it is extrinsic evidence not relevant to the issue of
intent. Zaragoza and Pacheco further argue that the letter should
have been excluded under Fed. R. Evid. 403, because its probative
value is outweighed by the danger of unfair prejudice. We find
these arguments unpersuasive.
The admissibility of evidence is a matter within the sound
discretion of the trial court. United States v. Dixon, 132 F.3d
192, 196-97 (5th Cir. 1997). This court reviews the district
court's evidentiary rulings for an abuse of discretion. United
States v. Garcia Abrego, 141 F.3d 142, 174 (5th Cir. 1998). We find
no abuse of discretion here. First, we agree with the government
that Rule 404(b) is inapplicable. The evidence of the threatening
letter was not extrinsic within the meaning of Rule 404(b), because
it involved conduct within the conspiracy. Paragraph 8 of the
superseding indictment charged that "it was a further part of the
aforementioned scheme and artifice to defraud that the defendants
threatened employees and victims who tried to expose said scheme."
6
In this circuit, acts committed in furtherance of a charged
conspiracy are themselves part of the conspiracy. Garcia Abrego,
141 F.3d at 175. The letter from Orcutt to Moreno is evidence of an
act committed in furtherance of the charged conspiracy;
specifically, it is evidence of a threat designed to intimidate a
victim attempting to expose the conspiracy. Such evidence
constitutes intrinsic evidence, and is not subject to exclusion
under Rule 404(b). See id.; United States v. Krout, 66 F.3d 1420,
1431 (5th Cir. 1995).3
Likewise, Rule 403 is inapposite. Most evidence presented by
the government will be prejudicial to a criminal defendant. But
Rule 403 "only excludes evidence that would be unfairly prejudicial
to the defendant." United States v. Townsend, 31 F.3d 262, 270 (5th
Cir. 1994) (emphasis added). The threatening letter was admitted as
direct evidence of the existence of the conspiracy charged, a
conspiracy in which both Pacheco and Zaragoza participated. Though
undoubtedly prejudicial in the sense that it was indicative of the
defendants' guilt, the letter was not unfairly prejudicial. As
such, the district court did not abuse its discretion in admitting
the letter without limitation.
IV.
Pacheco asserts that the trial court erred in denying his
3
Pacheco notes that the letter was not received by Moreno
until July 10, 1995, several weeks after the life of the conspiracy
alleged in the indictment. That fact does not change our analysis.
This court has held that evidence of acts committed pursuant to a
conspiracy remains intrinsic evidence, even though it was adduced
before or after the dates alleged in the indictment, so long as it
is "inextricably intertwined" with the crime charged. United States
v. Clements, 73 F.3d 1330, 1337 (5th Cir. 1996); United States v.
Hass, 150 F.3d 443, 449 (5th Cir. 1998).
7
motion to compel the government to elect counts on which to go to
trial, or to sever the trial into separate units. He argues that
joinder of all the offenses into one trial was prejudicial to him
due to the volume and complexity of the documentary and testimonial
evidence. Similarly, Zaragoza and Bribiesca contend that the
district court erred in denying their respective motions to sever.
Each argues that he was prejudiced by the spillover effect of the
voluminous evidence against Pacheco and by the evidence of
Pacheco's unsavory and potentially violent personal conduct. We
disagree.
Denial of a motion to sever is reviewed for abuse of
discretion. United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir.
1994). The district court did not abuse its discretion in denying
the defendants' motions. With respect to Pacheco's motion, prior to
trial the government agreed to present to the jury only 21 of the
42 Travel Act counts contained in the indictment. The trial
involved only three defendants and one conspiracy, and lasted only
two and a half months. This court has declined to find an abuse of
discretion in cases of much greater magnitude and complexity. See,
e.g., United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.
1981) (6-month trial; 36-count, 100-page indictment; 12
defendants); United States v. Martino, 648 F.2d 367, 385-86 (5th
Cir. 1981) (3-month trial; 35-count indictment; 20 defendants; more
than 200 witnesses). The case on which Pacheco relies, United
States v. Stratton, 649 F.2d 1066 (5th Cir. 1981), is not
applicable here, as the decision in that case was based on the
absence of a key defendant at trial and the resulting prejudice to
8
the other co-defendants. Accordingly, the district court did not
abuse its discretion in denying Pacheco's motion.
With respect to Zaragoza's and Bribiesca's motions, it is the
general rule of this circuit that persons indicted together should
be tried together, especially in conspiracy cases. United States v.
Tencer, 107 F.3d 1120, 1132 (5th Cir. 1997). Under the abuse of
discretion standard, a defendant challenging a district court's
denial of severance must show that he suffered specific and
compelling prejudice against which the trial court was unable to
afford protection, and that this prejudice resulted in an unfair
trial. United States v. Cortinas, 142 F.3d 242, 248 (5th Cir.
1998). Zaragoza and Bribiesca argue that they suffered compelling
prejudice because of evidence that was offered only against
Pacheco. This court has held, however, that when one conspiracy
exists, severance is not required, even when the quantum and nature
of the proof is different as to each defendant, so long as the
trial court repeatedly gives cautionary instructions. United States
v. Rocha, 916 F.2d 219, 228 (5th Cir. 1990). Here, the district
court expressly instructed the jury on numerous occasions to
evaluate separately the evidence against each defendant. These
repeated cautionary instructions were sufficient to protect against
the threat of prejudice. See Zafiro v. United States, 506 U.S. 534,
539 (1993). Consequently, the district court did not abuse its
discretion in denying Zaragoza's and Bribiesca's motions.
V.
All three defendants challenge the sufficiency of the evidence
as to the Travel Act counts and the conspiracy count. In reviewing
9
sufficiency of the evidence, this court must determine whether a
rational trier of fact could have found that the government proved
all essential elements of the crime beyond a reasonable doubt.
United States v. Mackay, 33 F.3d 489, 493 (5th Cir. 1994). For
purposes of this determination, we view the evidence in the light
most favorable to the jury verdict. Id. Following a careful review
of the testimony and exhibits in the record, we are satisfied that
the evidence was sufficient to sustain the defendants' convictions.
To prove a violation of 18 U.S.C. § 2314, the government must
show (1) a scheme devised to defraud any person of money by false
representations; (2) which causes or induces that person to travel
in interstate or foreign commerce in furtherance of that scheme.
United States v. Kelly, 569 F.2d 928, 933 (5th Cir. 1978). To prove
aiding and abetting, the government must show that the defendant
associated himself in some way with the crime and participated in
it as if it were something that he wished to bring about. United
States v. Parekh, 926 F.2d 402, 407 (5th Cir. 1991). To prove
criminal conspiracy, the government must show: (1) an agreement
between two or more persons; (2) to commit a crime against the
United States; and (3) an overt act committed by one of the
conspirators in furtherance of the agreement. Mackay, 33 F.3d at
493.
The evidence against Pacheco on the Travel Act and conspiracy
counts was not just sufficient; it was overwhelming. The government
presented a "caravan of misery" at trial--witness after witness who
testified about their experiences with Pacheco and RMI, and
described in detail how Pacheco had manipulated them and defrauded
10
them out of millions of dollars. The witnesses recounted one by one
how Pacheco induced them to travel to the United States, won their
confidence, persuaded them to pay his exorbitant fees, and then
abandoned them with no loans and worthless letters of credit. The
government also unveiled evidence of incriminating statements made
by Pacheco, and evidence that Pacheco made threats against former
employees who might have exposed his scheme. This evidence was more
than sufficient for a rational trier of fact to find Pacheco guilty
beyond a reasonable doubt as to each Travel Act count and the
conspiracy count.
Though the evidence against Zaragoza and Bribiesca was not
quite so overwhelming, it was still sufficiently damning to sustain
their convictions. With regard to Zaragoza, the government
presented undisputed evidence that Zaragoza was an officer of RMI
and was Pacheco's right hand man. Several witnesses testified that
Zaragoza threatened former employees of RMI who might "bring down"
their scheme. One witness testified that he saw Zaragoza signing
fraudulent letters of credit from Universal Funding and Investment
("UFI"), and the government presented evidence that Zaragoza forged
a signature on a UFI letter of credit. A computer disk found in
Zaragoza's office contained further samples of UFI letters of
credit. Moreover, the government showed that Zaragoza was
instrumental in establishing the identity of two shell corporations
used by RMI to carry out the scheme. With respect to Bribiesca, the
government established that Bribiesca attended and was an integral
part of numerous meetings between Pacheco and his clients, that
Bribiesca fraudulently misrepresented to a client that a letter of
11
credit was completed when it was not, and that Bribiesca used
bugging devices to listen to and monitor RMI's clients. Several
witnesses further testified as to various misrepresentations made
by Bribiesca in the course of his dealings with them. Finally,
blank copies of various letterheads used by RMI in furtherance of
its scheme were found in Bribiesca's office. This evidence was
sufficient for a rational trier of fact to find that Zaragoza and
Bribiesca aided and abetted Pacheco in his scheme, and that they
conspired with Pacheco to further that scheme. As such, their
convictions must be affirmed.
VI.
All three defendants further challenge the sufficiency of the
evidence as to the money laundering count. To prove money
laundering under 18 U.S.C. § 1956(a)(2)(A), the government must
demonstrate that there was a transportation or transfer or attempt
to transfer monetary instruments or funds from a place outside the
United States to a place inside the United States with the intent
to promote the carrying on of a specified unlawful activity. United
States v. $9,041,598.68, 163 F.3d 238, 254 (5th Cir. 1998). To
prove aiding and abetting, the government must show that the
defendant associated himself with the unlawful financial
manipulations, participated in them as something he wished to bring
about, and sought by his actions to make the effort succeed. United
States v. Willey, 57 F.3d 1374, 1383 (5th Cir. 1995). Following a
careful review of the testimony and exhibits in the record, we
conclude that there was sufficient evidence for a rational trier of
fact to find each defendant guilty beyond a reasonable doubt of
12
money laundering.
The record is replete with evidence supporting the money
laundering convictions. Numerous financial records, including wire
transfers and checks, show that approximately $4.2 million was
transferred from victims' accounts in Mexico to RMI's accounts in
San Antonio. The testimony of RMI's own accountant establishes that
much of this money went directly into RMI's overhead. Moreover,
numerous witnesses testified that they were impressed by the lavish
decor and opulent furnishings of RMI, by the swank luxury cars
driven by Pacheco, and by Pacheco's extravagant personal
appearance. The witnesses testified that these trappings of success
were part of what induced them to entrust their money to RMI. Based
on this evidence, the jury was certainly entitled to infer that the
money transferred from Mexico was used to promote the defendants'
fraudulent scheme. This and other circuits have found such evidence
sufficient to sustain a conviction for money laundering. See, e.g.,
United States v. Alford, 999 F.2d 818, 824 (5th Cir. 1993); United
States v. Johnson, 971 F.2d 562, 565-66 (10th Cir. 1992).
Zaragoza concedes that the evidence was sufficient to convict
Pacheco of money laundering, but argues that the evidence was
nonetheless insufficient as to him. He contends that there was no
evidence indicating that he had any control over RMI's funds or
financial transactions, nor that he received anything from RMI
other than regular paychecks and two loans. In the absence of any
evidence showing that he was directly involved in RMI's financial
dealings, Zaragoza asserts that his conviction for money laundering
must be vacated. We disagree. A defendant is not shielded from
13
conviction for money laundering merely by virtue of the fact that
he is not directly involved in the formal receipt and disbursement
of funds. Here, the government presented substantial evidence that
Zaragoza was directly and intimately involved in a fraudulent
scheme to induce Mexican companies to transfer their funds to RMI's
accounts in the United States. The jury could readily infer that
Zaragoza was aware that these funds were being used to carry on the
operation, that he wished to bring this result about, and that he
directed his actions to that end. Whether Zaragoza was immediately
involved in the actual financial transactions is irrelevant, so
long as he associated himself with those transactions and sought to
make them succeed. That being the case, we affirm his conviction.
VII.
All three defendants argue that the district court applied the
Sentencing Guidelines incorrectly in determining their sentences.
This court reviews the district court's interpretation of the
guidelines de novo, and its application of the guidelines to the
facts for clear error. United States v. Cho, 136 F.3d 982, 983 (5th
Cir. 1998). A sentence imposed under the guidelines will be upheld
on appeal unless the defendant demonstrates that the sentence was
imposed in violation of the law, was imposed because of an
incorrect application of the guidelines, or was outside the range
of applicable guidelines and was unreasonable. United States v.
Leahy, 82 F.3d 624, 637 (5th Cir. 1996).
The relevant guideline provision for a money laundering
offense is U.S.S.G. § 2S1.1. The relevant fraud provision is
U.S.S.G. § 2F1.1. Pursuant to U.S.S.G. § 3D1.2(d), offenses covered
14
by these provisions are grouped together for sentencing. Because
the counts involve offenses of the same general type to which
different guidelines apply, the offense guideline that produces the
highest offense level will be applied. U.S.S.G. § 3D1.3(b). In this
case, for each defendant the guideline producing the highest
offense level was Section 2S1.1, the money laundering provision.
Each defendant argues that the district court miscalculated the
"value of the funds" in determining the appropriate offense level
under Section 2S1.1. We agree.
Unlike the fraud guideline (Section 2F1.1), the money
laundering guideline is not premised upon the amount of "loss" a
scheme produced, but rather on the "value of the funds" that were
laundered. United States v. Allen, 76 F.3d 1348, 1369 (5th Cir.
1996). This court has explained that these are distinct standards
of measurement:
Section 2S1.1 measures the harm to society that money
laundering causes to law enforcement's efforts to detect the
use and production of ill-gotten gains. Section 2F1.1 measures
the harm to society and the individual suffered when an
innocent person is deprived of her money. In applying Section
2S1.1, courts should follow the guideline's plain language and
focus on the value of the funds laundered.
Id. at 1369.
Here, both the probation officer and the district court
applied the wrong standard of measurement; they applied the loss
standard to the money laundering guideline. In the original
presentencing report ("PSR") for each defendant, the probation
officer identified the value of the funds transferred as
$8,115,562. The government objected, arguing that the total should
be $4,200,000, as that figure reflects the value of the funds
15
actually transported from Mexico and the Dominican Republic to the
United States. The probation officer subsequently revised each
defendant's PSR. In the revised PSR for each defendant, the
probation officer identified the "value of the funds" as
$6,993,275. Commenting on this revision, the probation officer
stated:
According to our calculations based on information provided by
the FBI, the total amount transported is $6,993,275.00. This
amount is based on all, or part of, the amounts specified for
victims named in the indictment and 4 additional victims
unnamed in the indictment. The total includes $2,280,000.00
involved in the Enrique Posadas transaction.
Based on this revision, the probation officer used the figure of
$6,993,275 to determine the appropriate offense level under Section
2S1.1, rather than the government's figure of $4,200,000. In short,
the probation officer used the aggregate of the fraud loss rather
than the value of the funds actually transferred in determining the
offense level under the money laundering guideline. The district
court adopted the probation officer's calculations. The result was
an incorrect application of the guidelines in calculating the
defendants' sentences.
The government contends that the phrase "value of the funds"
as used in Section 2S1.1 should be broadly interpreted. The
additional $2.7 million, argues the government, could properly be
considered for sentencing purposes as relevant conduct under
U.S.S.G. § 1B1.3. We disagree. Though the relevant conduct
guideline is broad, it cannot erase the distinction, recognized by
this court in Allen, between losses suffered and the value of funds
transferred. We therefore vacate the defendants' sentences and
remand for resentencing on the money laundering counts. In
16
calculating the value of the funds under Section 2S1.1(b)(2) on
remand, the district court is instructed to consider only those
funds shown to be transported into the United States with the
intent to carry on an unlawful activity. The district court may
consider relevant conduct not charged in the indictment in making
this determination, but is limited to relevant money laundering
conduct. That is, the district court may consider relevant conduct
that involves the actual transportation of funds into the United
States with the intent to carry on an unlawful activity, but it may
not consider total losses produced by the underlying fraudulent
scheme.4
The defendants' remaining sentencing challenges are without
merit. Pacheco argues that the probation officer incorrectly
determined the total "value of the funds" under Section 2S1.1 by
including travel expenses and interest paid on the money borrowed.
He is mistaken. Although the computation contained in the original
PSR included travel expenses and interest, the PSR was subsequently
revised. The revised PSR eliminated travel expenses and interest
from its calculations, and reduced the total from $8,940,029 to
$6,993,275. Though that figure was incorrect for the reasons given
above, it did not include travel expenses and interest.
Bribiesca contends that he was improperly held accountable for
4
This instruction also relates to Pacheco's argument that the
probation officer incorrectly added to the loss calculation losses
from nine individuals who were never mentioned in the indictment.
The district court is not prohibited from considering those losses
just because the nine victims were never mentioned in the
indictment. It must, however, confine its consideration to those
funds transported to the United States with the intent to carry on
an unlawful activity. Proof of loss, standing alone, may not be
used to calculate the value of the funds under Section 2S1.1.
17
acts of the other defendants that occurred prior to November 1993,
when he joined RMI. He too is mistaken. Although the original PSR
held Bribiesca accountable for the total value of the funds
fraudulently obtained, the PSR was revised to reflect Bribiesca's
more limited participation in the conspiracy. The parole officer
reduced Bribiesca's total accountability from $8,940,029 to
$5,834,000. His total restitution was similarly decreased to
$6,600,692. These reduced figures reflect Bribiesca's shared
responsibility following his entry into the conspiracy; they do not
hold him accountable for conduct that occurred before he joined the
conspiracy.
VIII.
For the foregoing reasons, the defendants' convictions are
AFFIRMED, their sentences are VACATED, and this case is REMANDED to
the district court for resentencing.5
5
In his reply brief, Zaragoza requests permission to reurge
his request for a downward departure on resentencing in light of
this court's decision in United States v. Hemmingson, 157 F.3d 347
(5th Cir. 1998). That issue is not properly before this court, and
therefore we do not decide it. Nothing in this decision, however,
should be read to prohibit the district court from considering such
a request.
18