                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-1559
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                FERNANDO BELTRAN
                             also known as Victor Espinoza

                               FERNANDO BELTRAN,
                                           Appellant
                                  _____________

                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-06-cr-00199-011)
                    District Judge: Honorable Christopher C. Conner
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 14, 2011

                Before: RENDELL SMITH and ROTH, Circuit Judges.

                             (Opinion Filed: July 29, 2011)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

       Fernando Beltran was convicted of various drug charges, criminal forfeitures, and

offenses relating to attempted escape from custody. Beltran only challenges his
convictions which relate to his attempt to escape custody, urging the insufficiency of the

evidence. He also claims that the government offered insufficient evidence to overcome

the defense of entrapment and that the two-level increase in offense level for being an

organizer, leader, manager, or supervisor of a criminal activity was inappropriate. Our

standard of review for sufficiency of the evidence challenges is plenary, but we will only

reverse a jury verdict when the record contains no evidence from which a reasonable jury

could find guilt beyond a reasonable doubt. See United States v. Mussare, 405 F.3d 161,

166 (3d Cir. 2005). We exercise plenary review over legal questions regarding a

challenge to sentencing enhancements and review the related factual findings for clear

error. United States v. Inigo, 925 F.2d 641, 658 (3d Cir. 1991). We will affirm.

       Beltran, along with Antonio Avila, was convicted of attempted escape from

custody and related offenses. The offense conduct originated when Beltran was moved to

a cell with Amauris Sanchez. Shortly thereafter, Beltran approached Sanchez about

taking part in an escape. Following a number of conversations, Sanchez approached

authorities with the intent to cooperate. Sanchez and Karen Brown, a prison counselor,

took on the role of confidential informant for the authorities. After a number of

discussions between Beltran, Avila, Sanchez, and Brown, an escape plan was crafted

based on a medical transport. The plan resulted in bribes to fictitious guards for a

smuggled cell phone and their cooperation in the escape. Following the seizure of the

second bribe – $40,000 to be used as the bribe to effectuate the actual escape – Avila and

Beltran were charged.



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       Beltran’s first challenge is that the government failed to offer sufficient evidence

to sustain a conviction for attempted escape from custody. To prove attempted escape,

the government must show intent, as well as corroborating evidence which amounts to a

substantial step toward commission of the crime. See United States v. Cicco, 10 F.3d

980, 984 (3d Cir. 1993). The substantial step may be shown through the conduct of a co-

conspirator. See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). Beltran

challenges the government’s evidence by claiming that his initial thoughts at escape

amounted to “daydreams” and the rest of the planning was done by the CIs. Therefore,

he urges, the evidence does not support intent on his part. In actuality, the government

showed that his intent originated when he approached Sanchez. It was his idea to break

through the cinder blocks; while far-fetched, nonetheless, it showed that the idea of

escape clearly started with Beltran. The government also proved his intent through

numerous recorded phone calls with his sister, directing her involvement in the attempted

escape, which resulted in the sister’s supplying the guards with payments of $3,000 and

$40,000. Additionally, as the substantial step prong may be shown through the conduct

of a co-conspirator, her delivery of the funds satisfies the substantial step element.

Accordingly, his challenge must fail.

       For his second challenge, Beltran claims that insufficient evidence was offered to

overcome the defense of entrapment. To prove the defense of entrapment, the defendant

must show (1) that the government induced the defendant to commit the crime and (2)

that the defendant lacked the predisposition. United States v. El-Gawli, 837 F.2d 142,

145 (3d Cir. 1988). Beltran’s argument assumes that he sustained his burden as to the

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elements, but he failed to show a lack of predisposition. Beltran attempts to characterize

his initial thoughts of escape, which he approached Sanchez with, as daydreams due to

the implausibility of cutting through the prison’s cinder block walls. Beltran reasons that

the implausible nature of his initial plan shows that he was not predisposed and that it

was only the inducement by the CIs which resulted in his participating. The government

argues that Beltran’s intent was evinced by the fact that Beltran first approached Sanchez

about the escape, and persisted with the effort despite Sanchez’s discouragement of the

initial plan. The government further points to the numerous phone calls placed by

Beltran to his sister, most of which were to arrange the details about the payments needed

to effectuate the escape, but also to convince his sister that the CIs could be trusted. The

fact that Beltran engaged Sanchez in the initial discussion and he continually participated

in the attempt, including involving his sister, is enough to prove that he was predisposed

to the crime. It is clear that there was enough evidence for a reasonable jury to conclude

that the defense of entrapment was unavailable to Beltran.

       Beltran’s final challenge is to the two-level enhancement for being an organizer,

leader, manager, or supervisor of a criminal activity. Section 3B1.1 of the Sentencing

Guidelines requires a two-level increase in offense level when “the defendant was an

organizer, leader, manager, or supervisor in any criminal activity.” Application note 2 of

Section 3B1.1 states that one can qualify if they are the supervisor of one or more

individuals or if they “exercised management responsibility over the property, assets, or

activities of a criminal organization.” Beltran argues that the escape plan was the

brainchild of the CIs and, although he recruited and directed his sister, it was at the

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direction of the CIs. The government urges that the enhancement was appropriate

because he recruited his sister, Avila, and Sanchez into the attempted escape, he was a

planner of the escape, and he directed his sister to send the money to bribe the fictitious

guards for the cell phone and the eventual escape. The District Court found that the

enhancement was warranted because Beltran was the one to initially approach all parties

and he directed his sister to send the key to the plan, the money. We find no error in the

District Court’s reasoning.

       Accordingly, we will affirm.




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