                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5195


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WILBUR BALLESTEROS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00288-RWT-8)


Submitted:   December 29, 2010            Decided:   February 3, 2011


Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, James A. Crowell IV,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Wilbur Ballesteros pled guilty to conspiracy to commit

mail and wire fraud, 18 U.S.C. § 1349 (2006), and was sentenced

to a term of sixty-three months imprisonment.                                 He appeals his

sentence,     arguing          that    the       district       court    clearly       erred       in

finding    that     he    knew        or   should       have    known    that     the    offense

involved vulnerable victims, U.S. Sentencing Guidelines Manual

§ 3A1.1(b)(1) (2009).             We affirm.

              The    conspiracy            was    carried       out    using     the    Maryland

Money     Store     (MMS)        and       other       corporations          created     by       the

conspirators.        Its object was to target financially distressed

homeowners     who       had    substantial            equity    in     their    homes.           MMS

advertised that its “foreclosure reversal program” could help

homeowners keep their homes by allowing title to their homes to

be transferred to third parties, or straw buyers, for one year,

to   repair    their      credit.            But       once    title    was     obtained,         the

conspirators        applied       for       new,       fraudulently-inflated            mortgage

loans, extracted the equity from the property, transferred the

sale proceeds from the escrow accounts to their business and

personal    accounts,          and     converted        much    of     the    money     to    their

personal use.

              During      the         conspiracy,         Ballesteros           worked       as     a

licensed real estate agent for Cap Title.                                He conducted real

estate settlements for MMS, served as the closing agent, and

                                                   2
submitted        fraudulent         documentation             to   the     lenders.          At

Ballesteros’s sentencing, the government moved for a downward

departure under USSG § 5K1.1, p.s., based on his substantial

assistance, and informed the district court that he had provided

significant assistance because he understood the whole scheme as

well       as   its    mechanics         and   was      instrumental          in   making     it

successful.

                The    guideline      provides         that    a   two-level       adjustment

applies “[i]f the defendant knew or should have known that a

victim of the offense was a vulnerable victim.”                                Before making

the adjustment, the court must first determine that a victim was

“unusually vulnerable due to age, physical or mental condition,

or   . . .      otherwise         particularly         susceptible       to    the   criminal

conduct.”        USSG § 3A1.1 cmt. n.2. *               See United States v. Llamas,

599 F.3d 381, 388 (4th Cir. 2010).                      The court must also find the

defendant       knew       or   should    have       known    of   the   victim’s     unusual

vulnerability.              Id.      Because         the     court’s     determination       is

factual,        it    is   reviewed      for   clear         error.      Id.       Under    USSG

§ 1B1.3(a)(1)(B), in a jointly undertaken criminal activity, the


       *
        The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability.     Before   the  1995  amendment  to  §   3A1.1,
Application Note 2 stated that the adjustment “applies to
offenses where an unusually vulnerable victim is made a target
of criminal activity by the defendant.” See app. C, amend. 521.



                                                 3
defendant is responsible for “all reasonably foreseeable acts

. . .   of     others    in     furtherance           of   the   jointly      undertaken

criminal activity.”

              Ballesteros argues that there was no evidence that he

knew or should have known of the victims’ unusual vulnerability.

However,     there    was     evidence     before      the    court    that    he    had    a

comprehensive knowledge of the scheme, the purpose of which was

to   defraud       financially    vulnerable          people.      Ballesteros           also

maintains     that    there     was   no    connection        between    the    victims’

vulnerability and the success of the crime.                            Here also, the

evidence that the point of the scheme was to defraud financially

vulnerable victims of their equity and that he was an essential

contributor to the scheme refutes his claim.                          We conclude that

the district court did not clearly err in making the adjustment

under § 3A1.1(b)(1).

              We    therefore     affirm        the    sentence       imposed       by    the

district     court.      We    dispense     with       oral   argument     because        the

facts   and    legal    contentions        are    adequately       presented        in    the

materials      before    the    court      and    argument       would   not    aid       the

decisional process.

                                                                                AFFIRMED




                                            4
