UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4616
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RALPH MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-000823-DCN)
Submitted: January 26, 2007 Decided: March 6, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Michael Rhett DeHart, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Miller appeals his sentence of eighteen months’
imprisonment after pleading guilty, pursuant to a plea agreement,
to one count of conspiracy to commit fraud, in violation of 18
U.S.C. § 371. Miller’s attorney filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), alleging that there are
no meritorious issues for appeal, but raising the issues of whether
the district court erred in calculating the amount of loss, and
whether the Government breached the plea agreement by failing to
move for a downward departure.
This court reviews a district court’s factual findings at
sentencing for clear error, and its related legal conclusions,
including the application of the Sentencing Guidelines, de novo.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Here, the district court’s calculation of loss is a factual
determination reviewed for clear error. See United States v.
Brooks, 111 F.3d 365, 373 (4th Cir. 1997).
At sentencing, the district court makes a “reasonable
estimate of the loss, given the available information.” United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003); USSG § 2B1.1,
comment. (n.2(C)). Enhancements under § 2B1.1(b) are determined by
the amount of loss suffered as a result of the fraud. The amount
of loss is the greater of the actual loss or the intended loss.
USSG § 2B1.1, comment. (n.2(A)). “Intended loss” is defined as
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“the pecuniary harm that was intended to result from the offense
. . . and . . . includes intended pecuniary harm that would have
been impossible or unlikely to occur.” USSG § 2B1.1, comment.
(n.2(A)(ii)). Consequently, the intended loss amount may be used,
“even if this exceeds the amount of loss actually possible, or
likely to occur, as a result of the defendant’s conduct.” Miller,
316 F.3d at 502.
The district court made a reasonable determination
regarding the amount of loss resulting from the conspiracy’s scheme
to fraudulently obtain artificially high mortgages for three pieces
of real estate. These findings are well documented in the
presentence report and Miller did not object to the amounts.
Miller has not made an affirmative showing that the findings in the
presentence report are unreliable or inaccurate. See United
States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999); United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). Accordingly,
the district court was entitled to adopt the presentence report as
its own findings. United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). Therefore, the district court did not err in
calculating the amount of loss attributable to Miller, and thus did
not commit clear error.
Miller suggests that the Government breached the plea
agreement by failing to move at sentencing for a downward
departure, based upon Miller’s cooperation. We review this claim
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for clear error. United States v. Conner, 930 F.2d 1073, 1076-77
(4th Cir. 1991).
Absent an express provision in a plea agreement, which is
not present here, a criminal defendant does not have a
constitutional right to a motion for downward departure pursuant to
USSG § 5K1.1. United States v. Francois, 889 F.2d 1341, 1344 (4th
Cir. 1989); see United States v. Wallace, 22 F.3d 84, 87 (4th Cir.
1994). Additionally, there was no evidence that the Government’s
refusal to make the motion was based upon an unconstitutional
motive. United States v. LeRose, 219 F.3d 335, 341-42 (4th Cir.
2000) (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)).
Therefore, no error resulted from the Government’s failure to move
for a reduction in Miller’s sentence based upon substantial
assistance.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Miller’s conviction and sentence. The
court requires that counsel inform Miller, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Miller requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may move
in this court for leave to withdraw from further representation.
Any such motion filed by counsel must state that a copy thereof was
served on Miller. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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