     Case: 12-40758       Document: 00512320669         Page: 1     Date Filed: 07/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 25, 2013
                                     No. 12-40758
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LESLEY CAROLL BEENE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:11-CR-3-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Lesley Caroll Beene appeals from his jury verdict conviction and sentence
for bank fraud (Count One) and making a false statement to a bank (Count Two).
He argues that the evidence produced at trial was insufficient to support his
convictions because the Government failed to prove beyond a reasonable doubt
that he had the requisite intent to commit bank fraud as to Count One or that
he caused the false entry in his loan application as to Count Two. Because he
preserved these challenges by moving for a judgment of acquittal after the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40758

Government rested and at the close of all evidence, we review these challenges
de novo. See United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
      Viewing the evidence in the light most favorable to the Government, a
rational jury could have found beyond a reasonable doubt that Beene had the
requisite intent to commit bank fraud in Count One and caused the false entry
in his loan application in Count Two. See United States v. Lopez-Moreno, 420
F.3d 420, 437-438 (5th Cir. 2005). The judgment of the district court is therefore
affirmed on this basis.
      Beene contends that the district court clearly erred by including the
$150,000 loan at issue in Count Two and various other loans as relevant
conduct. He also asserts that the district court should have calculated the total
loss based upon actual loss and should not have applied the two-level adjustment
pursuant to U.S.S.G. § 2B1.1(b)(15)(A).          We review the sentence for
reasonableness, applying the abuse-of-discretion standard.        Gall v. United
States, 552 U.S. 38, 46, 51 (2007). We review the district court’s interpretation
or application of the Sentencing Guidelines de novo and its factual findings for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      The district court did not commit clear error by including as relevant
conduct the intended loss from Beene’s home equity loan from Cypress Bank, as
well as the losses from his loans from Quicken Loans, 1st Bank and Trust, and
Bowie County Equipment. The district court was entitled to rely upon the
presentence report’s findings regarding those loans because they were based
upon sufficiently reliable information, and Beene did not rebut those findings or
show the information was unreliable. See United States v. Rose, 449 F.3d 627,
633 (5th Cir. 2006). Moreover, the district court properly calculated the total
loss based upon the intended loss. See U.S.S.G. § 2B1.1, comment. (n.3(A)).
However, as conceded by the Government, the district court committed clear
error by including the entire $598,613.91 consolidated loan amount from Cypress

                                        2
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                                 No. 12-40758

Bank as relevant conduct. Of that consolidated loan amount, $150,000 was
derived from the loan at issue in Count One and was therefore properly included
in the loss total. However, the remaining $448,613.91 was derived from four
other loans, and the presentence report did not specify the basis for including
those loans or the entire consolidated loan as relevant conduct.         If that
$448,613.91 had been excluded from the loss total attributable to Beene, the
applicable guideline range would have been 33 to 41 months of imprisonment
due to the lower total loss amount for purposes of U.S.S.G. § 2B1.1(b)(1)(H) and
the lack of an adjustment under § 2B1.1(b)(15)(A). Because the Government
concedes that the district court would not have imposed the 54-month sentence
of imprisonment notwithstanding the error, the error was not harmless. See
United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
      Accordingly, we vacate Beene’s sentence and remand this case for
resentencing consistent with this opinion.
      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.




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