United States Court of Appeals

For the First Circuit

No. 10-2236

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN COLÓN-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Selya and Lipez, Circuit Judges.

Victor J. González-Bothwell, with whom Héctor E. Guzman-Silva,

Federal Public Defender, and Patricia A. Garrity, Assistant Federal

Public Defender, were on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, were on brief, for appellee.

October 2, 2012
LIPEZ, Circuit Judge. Hurricane Georges struck Puerto

Rico on September 21, 1998. In the storm's wake, the island was

declared a "major disaster" area eligible for various federal aid

programs. See United States v. Alfonzo-Reyes, 592 F.3d 280, 284

(1st Cir. 2010). One such program, administered by the Farm

Service Agency ("FSA"), offered low-interest emergency loans to

qualified farmers to help restore farming operations or rebuild

structures damaged by the hurricane. See id.

Because of the complexity of the loan application

process, the FSA trained a number of independent contractors to

assist farmers in preparing and filing the necessary documentation. 

Among these contractors was appellant Juan Colón-Rodríguez

("Colón"), an agronomist with a degree in agricultural sciences. 

In all, Colón submitted successful loan applications on behalf of

at least eight farmers, earning approximately $45,000 in

commissions. During a 2002 audit, however, the FSA discovered a

series of irregularities in these applications. Colón was indicted

in late 2007 and convicted in 2009 in the United States District

Court for the District of Puerto Rico on twelve counts of making

false statements on FSA loan applications in violation of 18 U.S.C.

§ 1014 and one count of defrauding a financial institution in

violation of 18 U.S.C. § 1344. He was found not guilty on five

other counts.

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After the verdict, Colón moved for a judgment of

acquittal, contesting the sufficiency of the evidence against him. 

The district court summarily denied the motion. The court then

sentenced Colón to thirty-seven months' imprisonment on each count,

to be served concurrently. On appeal, Colón challenges the

sufficiency of the evidence for three of his convictions and his

sentence as substantively unreasonable. For the reasons described

below, we affirm two of the challenged convictions, vacate the

third, and affirm the sentence.

I.

We begin with Colón's motion for a judgment of acquittal,

the denial of which we review de novo. See United States v.

Rodríguez-Vélez, 597 F.3d 32, 38 (1st Cir. 2010). Colón argued to

the district court that there was insufficient evidence to support

his conviction on any count. His focus on appeal is narrower. He

takes aim only at Counts Three, Ten, and Eighteen. We scrutinize

the relevant evidence in the light most favorable to the verdict,

which "must stand unless the evidence is so scant that a rational

factfinder could not conclude that the government proved all the

essential elements of the charged crime beyond a reasonable doubt." 

Id. at 39 (emphasis omitted).

A. Counts Three and Ten

Count Three charged Colón with violating 18 U.S.C. § 1014

by making a false statement on an FSA loan application he filed on

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behalf of José Aponte-Díaz ("Aponte"), a poultry farmer. Count 1

Ten charged the same conduct with respect to another farmer,

Adalberto Flores-Zayas ("Flores"). "To establish a violation of

§ 1014, the government must prove that (1) the defendant made a

false statement; (2) the defendant acted knowingly; and (3) the

false statement was made for the purpose of influencing action on

the loan." Alfonzo-Reyes, 592 F.3d at 291. It is undisputed that

the government introduced sufficient evidence as to the third of

these elements. In our view, there also was sufficient evidence of

the other two elements on both counts.

1. Count Three

The evidence showed that Colón helped Aponte apply for

and obtain a $305,015 emergency loan from the FSA shortly after

Hurricane Georges, charging a two-percent commission for his

services. However, some of the statements made by Colón in filling

out Aponte's loan application were false. Contrary to Colón's 2

18 U.S.C. § 1014 criminalizes, inter alia, the making of a

1

false statement to the "Secretary of Agriculture acting through the

Farmers Home Administration or successor agency." The FSA is a

successor agency to the Farmers Home Administration and, hence,

within the statute's ambit. See Alfonzo-Reyes, 592 F.3d at 288-89;

United States v. Barreto-Barreto, 551 F.3d 95, 97 (1st Cir. 2008);

see also 7 U.S.C. § 6932(b)(3).

Although the forms bore Aponte's signature, evidence in the 2

record indicates that Colón filled them out. Colón does not

dispute that writing misinformation on the forms is sufficient to

establish that he made a false statement within the meaning of 18

U.S.C. § 1014. Cf. United States v. Tremont, 429 F.2d 1166, 1168-

69 (1st Cir. 1970) (sustaining conviction under 18 U.S.C. § 1010

for making false statement to Department of Housing and Urban

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assertions, the record discloses more than sufficient evidence to

support his conviction. For example, the application stated that

the storm had caused $115,950 of damage to four poultry barns

belonging to Aponte. During trial, Aponte testified that he had

only owned two barns at the time of the storm. The other two barns

were purchased later, long after the storm, with proceeds from the

FSA loan. What is more, Aponte testified that he had informed

Colón that he planned to spend some of the loan proceeds on the new

barns. While the government may have lacked other forms of direct

evidence that demonstrated the falsity of Aponte's statements, a

rational jury easily could have relied on the trial testimony, as

well as reasonable inferences drawn from that testimony, to

conclude that Colón knew the amount of damages claimed on the

application to be false. See Alfonzo-Reyes, 592 F.3d at 291

("Direct evidence is not required to find [a defendant] guilty, and

juries are entitled to draw reasonable inferences at trial based on

circumstantial evidence.").

Colón attempts to explain Aponte's testimony by

characterizing it as a mere failure to recall the specific number

of barns he owned, and points to evidence corroborating the amount

Development where defendant wrote fraudulent information on

application that was ultimately signed by another); United States

v. Sackett, 598 F.2d 739, 741-42 (2d Cir. 1979) (upholding

conviction where defendant made oral misrepresentations regarding

financial condition that were transferred by another person to loan

application that defendant did not fill out or sign).

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of loss documented in the application. “[T]he possibility of

innocuous explanations for [a defendant's] behavior does not

foreclose the jury's contrary inferences," however. United States

v. Ortiz, 447 F.3d 28, 33 (1st Cir. 2006). While Colón was

certainly entitled to make these arguments to the trier of fact,

the jury had a more than sufficient basis for rejecting his

explanations and returning a verdict against him. Consequently,

Colón's motion as to Count Three was correctly denied. 

2. Count Ten

The same is true of Count Ten. The government proved

that, hoping to restore his farm to working order, Flores hired

Colón to prepare his FSA loan application. Lillian Mateo, Flores's

wife and business partner, testified that she and her husband had

signed blank paperwork for Colón to complete. According to Mateo, 3

however, when the application was approved, she and Flores were

"surprised" to receive a loan of $250,000, since they had only been

expecting $150,000. When showed a copy of the loan application

during trial, Mateo said that several of the claimed items of

damage had been exaggerated. For example, the application listed

$45,000 in losses to the farm's warehouses and $73,500 in losses to

the greenhouses, but these amounts were more than was required to

repair the damaged structures.

Flores was unavailable to testify at trial due to a medical 3

condition.

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Seeking to rebut the force of this evidence, Colón

testified in his own defense that he had occasionally spoken with

Flores outside of Mateo's presence and that all of the figures

listed on the loan application had, in fact, come from Flores. If

accepted as true, Colón's testimony might have undercut the

government's case against him, as it could have created reasonable

doubt regarding whether he had known the statements on Flores's

loan application to be false. However, "witness credibility is

. . . a call for the jury," United States v. Jones, No. 10-1894,

2012 WL 954755, at *2 (1st Cir. Mar. 22, 2012), and it was the

jury's prerogative to disbelieve Colón's story, see United States

v. Manor, 633 F.3d 11, 14 (1st Cir. 2011); United States v.

Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008). Crediting Mateo's

testimony -- particularly her recollection that both she and her

husband had been "surprised" by the amount of their FSA loan -- a

rational jury could have found that Colón knowingly inflated the

amount of damages claimed on Flores's application. Therefore, the

district court did not err in denying Colón's motion for a judgment

of acquittal as to Count Ten.

B. Count Eighteen

There was an error in the court's denial of Colón's

motion for a judgment of acquittal with respect to Count Eighteen,

which charged him with defrauding a financial institution in

violation of 18 U.S.C. § 1344. The elements of this crime are well

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established: "(1) the defendant must engage in a scheme or artifice

to defraud, or must make false statements or misrepresentations to

obtain money from (2) a financial institution and (3) must do so

knowingly." United States v. Blasini-Lluberas, 169 F.3d 57, 64

(1st Cir. 1999).

No rational jury could have concluded that the government

proved the second of these elements beyond a reasonable doubt. As

the government has conceded, it offered no evidence that the FSA

qualified as a "financial institution" at the time of the offense

conduct in this case, as that term was then defined by 18 U.S.C.

§ 20. Accordingly, Colón's conviction on Count Eighteen must be 4

reversed. 

II.

Based on the date of the offense conduct in this case,

Colón's sentence was determined by reference to the 1998 edition of

the United States Sentencing Guidelines ("Guidelines"). See USSG

§ 1B1.11(b)(1) (1998). Starting from a base offense level of six,

see id. § 2F1.1(a), the district court added a two-level increase

Subsequent to the events in this case, Congress amended the 4

definition of "financial institution" in 18 U.S.C. § 20 to include

a "mortgage lending business." See Fraud Enforcement and Recovery

Act of 2009, Pub. L. No. 111–21, § 2(a)(3); see also United States

v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010). A mortgage

lending business is "an organization which finances or refinances

any debt secured by an interest in real estate, including private

mortgage companies and any subsidiaries of such organizations, and

whose activities affect interstate or foreign commerce." 18 U.S.C.

§ 27. This case does not require us to decide whether the FSA is

included within the expanded definition of "financial institution."

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for obstruction of justice, see id. § 3C1.1, and another two-level

increase because Colón's crimes had involved "more than minimal

planning," id. § 2F1.1(b)(2)(A). The court also added an elevenlevel increase because the loss associated with the falsified loan

applications totaled more than $800,000. See id. §

5

2F1.1(b)(1)(L). These increases brought the total offense level to

twenty-one and, paired with a criminal history category of I,

produced an advisory Guidelines sentencing range ("GSR") of thirtyseven to forty-six months' imprisonment. After taking into account

the sentencing factors enumerated in 18 U.S.C. § 3553(a), the

district court imposed an incarcerative term at the bottom of the

GSR: thirty-seven months on each count, to be served concurrently.

The presentence report ("PSR") noted that the loans that 5

were part of the indictment totaled about $2.27 million. Some of

the disbursed money was justified by the borrowers' needs; once

that amount was subtracted, the PSR concluded that the total amount

Colón fraudulently obtained was about $1.65 million. Only $360,000

of this amount had been repaid, meaning that the defendant's

conduct had therefore resulted in more than $800,000 but less than

$1.5 million of loss. See USSG § 2F1.1(b)(L)-(M). The PSR

observed, however, that since collection efforts were ongoing and

because many borrowers stopped their farming operations for reasons

other than Colón's fraudulent activities, the government lacked

reliable information concerning the "specific" loss amount

attributable to the defendant's conduct. The district court

appeared to adopt this reasoning at sentencing, when it found that

"an exact amount of loss could not reasonably be determined" but

that Colón's conduct had resulted in at least $800,000 of loss. At

oral argument, Colón characterized this reasoning as an intended

loss calculation. We make no judgment on that point. What matters

for this appeal is that Colón does not challenge the $800,000

figure.

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Colón challenges this sentence as substantively

unreasonable. He concedes the correctness of the district court's

GSR calculation but claims he was entitled to a downward variance

due to the existence of mitigating circumstances. He says the

$800,000 loss figure, while accurate, significantly overstated the

seriousness of his conduct, particularly since he only earned

approximately $45,000 in commissions. See United States v. Pol- 6

Flores, 644 F.3d 1, 5 (1st Cir. 2011) ("[O]ne ground supporting a

below-guideline sentence could be that the intended loss attributed

to [the defendant] overvalued the seriousness of the offense."

(internal quotation marks omitted)). He also points out that none

of the farmers whose loan applications he falsified were charged

with any crimes, and he insists that he and his family suffered

immensely during the long (and unexplained) interim between when

his crimes were first investigated in 2002 and when he was finally

brought to trial in 2009.

"[W]e review sentencing decisions for abuse of

discretion." United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st

As we recently explained in United States v. Appolon, ___

6

F.3d ____, 2012 WL 4120401, at *15 (1st Cir. Sept. 19, 2012), the

defendant's gain should only be used to measure loss "as a last

resort," in the event that "neither actual loss nor intended loss

can be gauged . . . ." Colón does not challenge the district

court's decision to use an intended loss measure to establish the

applicable GSR, but he remains entitled to argue that the sentence

was substantively unreasonable because the intended loss

"overvalued the seriousness of the offense." United States v.

Thurston, 456 F.3d 211, 219 (1st Cir. 2006), rev'd on other

grounds, 552 U.S. 1092 (2008).

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Cir. 2011); see also United States v. Fernández-Hernández, 652 F.3d

56, 71 (1st Cir. 2011). "In assessing the substantive

reasonableness of a sentence, it is significant that the sentence

falls within the GSR." Madera-Ortiz, 637 F.3d at 30. "[A]

defendant who attempts to brand a within-the-range sentence as

unreasonable must carry a heavy burden." United States v.

Pelletier, 469 F.3d 194, 204 (1st Cir. 2006); see also United

States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011)

("Challenging a sentence as substantively unreasonable is a

burdensome task in any case, and one that is even more burdensome

where, as here, the challenged sentence is within a properly

calculated GSR."). Such a defendant "must adduce fairly powerful

mitigating reasons and persuade us that the district court was

unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be reasonable." MaderaOrtiz, 637 F.3d at 30 (internal quotation marks omitted).

Colón has not carried his burden. The district court

adequately, if succinctly, explained the rationale behind its

sentencing decision. See Madera-Ortiz, 637 F.3d at 31 ("To be

sure, the sentencing court's explanation for the sentence is terse.

But brevity is not to be confused with inattention." (internal

quotation marks omitted)); United States v. Turbides-Leonardo, 468

F.3d 34, 41 (1st Cir. 2006) ("[S]entences that fall inside a

properly calculated [GSR] require a lesser degree of explanation

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than those that fall outside the [GSR]."). In particular, the

court observed that Colón had engaged in a "serious scheme to

defraud" the FSA and that his crimes contributed to an

unprecedented shortfall in the FSA's emergency loan funding,

jeopardizing the agency's ability to provide aid. See AlfonzoReyes, 592 F.3d at 287 ("[T]he fraudulent loans made as a result of

Hurricane Georges' disaster depleted the FSA emergency funds in a

single fiscal year for the first time in the program's history.").

The district court also noted that, in fashioning Colón's

sentence, it had considered the various sentencing factors set

forth in 18 U.S.C. § 3553(a), including Colón's lack of criminal

history and familial responsibilities. See Madera-Ortiz, 637 F.3d

at 31 ("[O]n appeal, the fact that the court stated that it had

considered all the section 3553(a) factors is entitled to some

weight." (internal quotation marks omitted)). That the court chose

to attach less significance to certain mitigating circumstances

than Colón thinks they deserved does not make his sentence

substantively unreasonable. See Clogston, 662 F.3d at 593. As we

have said, the weighing of different sentencing factors "is largely

within the court's informed discretion." Id.; see also MaderaOrtiz, 637 F.3d at 31.

In sum, after considering the relevant sentencing

factors, the district court "articulate[d] a plausible rationale

and arrive[d] at a sensible result." United States v. Carrasco-de-

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Jesús, 589 F.3d 22, 30 (1st Cir. 2009). Hence, there was no abuse

of discretion in the court's imposition of a sentence at the bottom

of Colón's GSR.7

III.

Colón's conviction on Count Eighteen is reversed and his

sentence on that count is vacated. In all other respects, the

judgment of the district court is affirmed.

So ordered.

Colón stated at oral argument that he does not seek a

7

resentencing in light of the vacatur of his conviction on Count

Eighteen. Since he received identical concurrent sentences on each

count of conviction, he took the position that his acquittal on

this count will not shorten the time he must spend in prison.

Accordingly, we will not order a resentencing that Colón has

expressly declined.

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