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,
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.
After the verdict, Colón movéd 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 Colon’s motion for a judgment of acquittal, the denial of which we review de novo. See United States v. Rodriguez-Velez,
A. Counts Three and Ten
Count Three charged Colón with violating 18 U.S.C. § 1014 by making a
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.
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 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,
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.
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, Colon’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,
B. Count Eighteen
There was an error in the court’s denial of Colon’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 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,
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.
Based on the date of the offense conduct in this case, Colon’s sentence was determined by reference to the 1998 edition of the United States Sentencing Guidelines (“Guidelines”). See USSG § lBl.ll(b)(l) (1998). Starting from a base offense level of six, see id. § 2Fl.l(a), the district court added a two-level increase for obstruction of justice, see id. § 3C1.1, and another two-level increase because Colon’s crimes had involved “more than minimal planning,” id. § 2Fl.l(b)(2)(A). The court also added an eleven-level increase because the loss associated with the falsified loan applications totaled more than $800,000.
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.
“[W]e review sentencing decisions for abuse of discretion.” United States v. Madera-Ortiz,
Colón has not carried his burden. The district court adequately, if succinctly, explained the rationale behind its sentencing decision. See Madera-Ortiz,
The district court also noted that, in fashioning Colon’s sentence, it had considered the various sentencing factors set forth in 18 U.S.C. § 3553(a), including Colon’s lack of criminal history and familial responsibilities. See Madera-Ortiz,
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-Jesús,
Colon’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.
Notes
. 18 U.S.C. § 1014 criminalizes, inter alia, the making of a 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; Barreto-Barreto v. United States,
. Although the forms bore Aponte’s signature, evidence in the 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 state-merit within the meaning of 18 U.S.C. § 1014. Cf. United States v. Tremont,
. Flores was unavailable to testify at trial due to a medical condition.
. Subsequent to the events in this case, Congress amended the 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,
. The presentence report ("PSR”) noted that the loans that 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 § 2Fl.l(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 Colon'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 Colon'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.
. As we recently explained in United States v. Appolon,
. Colón stated at oral argument that he does not seek a resentencing in light of the vacatur of his conviction on Count Eighteen. Since he received identical concurrent sentences on