US v. Wilbur Ballesteros

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:08-cr-00288-RWT-8 Copies to all parties and the district court/agency. [998517003] [09-5195]

Case: 09-5195

Document: 35

Date Filed: 02/03/2011

Page: 1

UNPUBLISHED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. (8:08cr-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Case: 09-5195

Document: 35

Date Filed: 02/03/2011

Page: 2

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.
sentence,
finding

arguing

that

he

that
knew

the
or

district

should

He appeals his

court
known

have

clearly
that

erred

the

in

offense

involved vulnerable victims, U.S. Sentencing Guidelines Manual
§ 3A1.1(b)(1) (2009).
The
Money

Store

conspiracy

was

(MMS)

other

conspirators.
homeowners

We affirm.

and

carried

out

using

corporations

the

Maryland

created

by

the

Its object was to target financially distressed

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

conspirators

credit.

applied

for

But

once

new,

title

was

obtained,

fraudulently-inflated

the

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

licensed real estate agent for Cap Title.

worked

as

a

He conducted real

estate settlements for MMS, served as the closing agent, and
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Case: 09-5195

submitted

Document: 35

fraudulent

Date Filed: 02/03/2011

documentation

to

the

Page: 3

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

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

conduct.”

defendant

knew

vulnerability.
factual,

it

is

or

should

Id.

have

known

Because

reviewed

for

the

clear

of

the

court’s
error.

victim’s

unusual

determination
Id.

Under

is
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.

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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

maintains

financially

that

there

vulnerable

was

no

people.

connection

Ballesteros

between

vulnerability and the success of the crime.

the

also

victims’

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
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

the
with

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

4