IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40758

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 25, 2013

Lyle W. Cayce

Clerk

* 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

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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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