### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 c o nviction a nd s entence for bank fraud (Count One) and making a false statement to a b ank (Count Two). He argues tha t t h e e vidence produced at trial was i n sufficient to s upport 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 f

a lse entry in his loan application as to C o u n t T w o . B ecause he preserved these challenges b y m o v i n g for a judgment of acquittal after the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40758 Document: 00512320669 Page: 1 Date Filed: 07/25/2013No. 12-40758

Government rested and at the close of all e vidence, w e review these challenges de novo. See United States v. Grant , 683 F.3d 639, 642 (5th Cir. 2012). Viewing the evidence i n the ligh t m o s t f avorable to the Government, a rational jury could have f o und beyond a reasonable doubt that Beene had the requisite intent t o commit bank fraud in C ount O ne and caused the false entry in his loan application in Count T wo. See United St a t e s v . L o p ez-Moreno , 420 F.3d 420, 437-438 (5th Cir. 2 005). The judgment of the district court i s therefore affirmed on this basis. Beene c ontends that t h e district court clearly erred by including the $150,000 loan at issue in C ount Two and v arious other loans a s r e l e v ant conduct. He also asserts that the district court should have calculated the total loss based u p o n a c tual loss and should not have applied the two-level a djustment
pu r s u ant to U.S.S.G. § 2B1.1(b)(15)(A). We review the sentence for reasonableness, applying the abuse-of-discretion stand a r d

. Gall v. United States , 552 U.S. 38, 4 6, 51 (2007). We review the district court’s interpretation

or application of the Sentencing Guidelines de novo a nd its factual findings for clear error. United S tates v. Cisneros-Gutierrez , 5 1 7 F.3d 751, 764 (5th Cir. 2008). The district c ourt did not comm i t c l e a r error by i n cluding a s relevant conduct the intended loss from Beene’s home equity l oan from Cypress Bank, as well as th e losses f

rom his loans from Q uicken Loans, 1st Bank and Trust, and Bowie County Equipment. The district court w as entitled to rely upon the presentence report’s f indings regarding those loans because they were based
upon sufficiently reliable information, a nd Beene di d not rebut those findings or show the information was unreliable. See United States v. Rose , 449 F.3d 627, 633 (5t h C i r . 2006). M oreover, the district court properly c a lculated the total loss b ased upon the intended loss. See U.S.S. G

. § 2B1.1, comment. (n.3(A)). However, as conceded by the Gove r n m e n t, the district court committed clear

error b y including the entire $5 9 8 , 6 1 3

. 9 1 c o n s o li d at e d l o a n a m o u nt from Cypress
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Bank as relevant conduct. Of that consolidated loan amount, $150, 0 0 0 w as derived from the loan at issue in C ount One and w as therefore properly included in the loss total. However, the remaining $448,613.91 was derived from four oth e r l o ans, and the p resentence report did not specify the basis for including those loans o r the entire consolidate d l o a n a s relevant conduct. If that $ 4 4 8 , 6 1 3

. 91 had been excluded from the loss total a ttributable to B eene, the applicable guideline range w o u l d h ave b een 33 to 41 m onths of imprisonment due to the lower t otal loss a mount for purposes of U.S.S.G. § 2B1.1(b)(1)(H) and the lack of an a djustment u nder § 2B1.1(b)(15 ) (A). Because the G overnment concedes that the district court would not have imposed the 54-month s entence of imprisonment notwit h s t a nding 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.

3 Case: 12-40758 Document: 00512320669 Page: 3 Date Filed: 07/25/2013