                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                               NOT PRECEDENTIAL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



                                             2
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



                                             3
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).

                                              4
         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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