                                                             NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                  ________________

                                         No. 12-3998
                                      ________________

                              UNITED STATES OF AMERICA

                                                v.

                                      BENJAMIN PENA,
                                                    Appellant
                                      ________________

                        On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.C. Crim. No. 3-09-00858-001)
                           Honorable Joel A. Pisano, District Judge
                                     ________________

                          Submitted under Third Circuit LAR 34.1(a)
                                      October 8, 2013

              BEFORE: FUENTES, GREENBERG, and BARRY, Circuit Judges

                                  (Filed: November 19, 2013)
                                       ______________

                                 OPINION OF THE COURT
                                     ______________


GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from a judgment of

conviction and sentence entered on October 16, 2012. A jury convicted defendant-

appellant, Benjamin Pena, of conspiracy to defraud the United States and to submit false


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claims, in violation of 18 U.S.C. § 371 (Count One); of two counts of submitting false

claims, in violation of 18 U.S.C. § 287 (Counts Two and Three); and of two counts of

mail fraud, in violation of 18 U.S.C. § 1341 (Counts Five and Six). The District Court

sentenced Pena to concurrent 55-month custodial terms on all five counts to be followed

by concurrent three-year terms of supervised release on all five counts. In addition, the

Court ordered him to make restitution of $1,280,000 to the United States and to forfeit

$1,000,000 to the United States.

       The case arose out of Pena’s conduct in running a system to make bogus Video

Relay Service calls, a type of telecommunication relay services, in order to obtain

reimbursement from the Federal Communications Commission. Pena working with other

individuals provided these services for which the FCC was billed to deaf and hearing-

impaired individuals which allowed such individuals to make telephone calls to

individuals with hearing. The services were provided through the use of individual video

interpreters. This procedure obviously is cumbersome and, at the times germane to this

case, a provider of the services was reimbursed at the rate of more than $6.00 per minute.

Evidence showed that the loss to the government from the scheme was between

$1,000,000 and $2,500,000, a critical number because it led to a 16-level increase in

Pena’s sentencing level. U.S.S.G. § 2B1.1(b)(1)(I). In fact, the presentence report

calculated that about $1,280,000 of the loss should be attributed to Pena, a figure that the

District Court adopted when sentencing Pena without holding an evidentiary hearing.

The District Court calculated Pena’s total offense level at 28 which when combined with



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a criminal history category of I, yielded a sentencing range of 78 to 97 months. Thus,

Pena’s 55-month custodial sentence was significantly below the guidelines range.

       Pena, represented by counsel, filed a timely pro se notice of appeal from all

aspects of the conviction and sentence, but his brief asks, beyond giving him sentencing

relief, only that we reverse his conspiracy conviction.1 Pena lists the issues on this appeal

and the standards of review as follows:

       1. Did the district court commit plain error in entering a judgment of
       conviction on the conspiracy count (Count 1) against Pena where the
       evidence supported a conclusion that the alleged conspiratorial parties were
       involved in legitimate businesses?

       Standard of Review: Plain error. An appellate court reviews for plain error
       a challenge to the sufficiency of the evidence where a Rule 29 motion was
       not made in the trial court. United States v. Anderson, 108 F.3d 478, 480
       (3d Cir. 1997).

       2. Did the district court err in fixing the loss amount attributable to Pena in
       calculating his sentencing guideline offense level?

       Standard of Review: Abuse of discretion in part and clear error in part. An
       appellate court reviews for abuse of discretion a district court’s decision not
       to hold an evidentiary hearing on a sentencing issue. See United States v.
       Styer, 573 F.3d 151, 153-54 (3d Cir. 2009). An appellate court reviews for
       clear error the district court’s factual findings concerning the amount of
       loss. United States v. Napier, 273 F.3d 276, 278 (3d Cir. 2001).

       3. Was the district court’s fifty-five month sentence unreasonable in that it
       is both procedurally and substantively flawed and, as a result, is greater
       than necessary to meet the purposes of sentencing in light of Pena’s
       particular circumstances?

       Standard of Review: A sentence’s overall reasonableness is reviewed
       under the ‘familiar abuse-of-discretion standard of review.’ Gall v. United


1
 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                              3
       States, 552 U.S. 38, 46 (2007); United States v. Tomko, 562 F.3d 558, 564-
       68 (3d Cir. 2009) (en banc).

Appellant’s br. at 1-2.

       We note that a court of appeals “view[s] the evidence in the light most favorable

to the government, and will sustain the verdict if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United States v.

Shavers, 693 F.3d 363, 373 (3d Cir. 2012) (quoting United States v. McGuire, 178 F.3d

203, 206 n.2 (3d Cir. 1999)) (internal quotation marks omitted), vacated on other

grounds, 133 S.Ct. 2877 (2013). Thus, a court of appeals “will overturn the verdict ‘only

when the record contains no evidence, regardless of how it is weighted,2 from which the

jury could find guilt beyond a reasonable doubt.’” Id. (quoting United States v. Moyer,

674 F.3d 192, 206 (3d Cir. 2012)).

       We find no error in any of the District Court proceedings and conclude that we

would not be justified in overturning either the conviction or the sentence. We, however,

do make one observation. Although Pena acknowledges that the standard of review gives

deference to the verdict, as the government sets forth in its brief, and also acknowledges

that he is appealing on a plain error basis to the extent that he advances a sufficiency of

the evidence argument, he nevertheless confuses the parties’ burden with respect to the

weighing of the evidence as he contends that “the evidence supported a conclusion that

the alleged conspiratorial parties were involved in legitimate businesses.” Appellant’s br.

at 1. Yet it is surely true that, in many cases in which a defendant is convicted, the

2
 Although we used the word “weighted” in Shavers, we may have intended to use the
word “weighed.”
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evidence could have justified the jury in returning a not guilty verdict. But this reality is

irrelevant because our inquiry is whether the evidence could have supported a guilty

verdict not whether it could have supported a not guilty verdict.

       The judgment of conviction and sentence entered on October 16, 2012, will be

affirmed.




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