UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4660
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KIMBERLY SPENCER MILES,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:09-cr-00020-RLV-DSC-2)
Submitted: February 28, 2011 Decided: March 18, 2011
Before SHEDD, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Assistant Federal Defender, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimberly Spencer Miles appeals her convictions and
forty-six-month sentence after pleading guilty pursuant to a
plea agreement to one count of conspiracy to defraud and obtain
under false pretenses money or property owned by or under the
control of Medicaid, in violation of 18 U.S.C.A. § 1349 (West
2000 & Supp. 2010), and two counts of willfully submitting false
and fraudulent claims for payment from Medicaid, and aiding and
abetting, in violation of 18 U.S.C. §§ 2, 1347 (2006). Miles’
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), arguing that the district court erred in
calculating the loss amount attributable to Miles, but
recognizing that because Miles’ plea agreement contained an
appellate waiver, this court may not entertain her appeal.
Miles was informed of her right to file a pro se supplemental
brief, but has not done so. The Government declined to file a
responsive brief. * We affirm the district court’s judgment.
*
Because the Government elected not to file a responsive
brief or a motion to dismiss the appeal based on the appellate
waiver contained in Miles’ plea agreement, this court has
conducted an Anders review. See United States v. Poindexter,
492 F.3d 263, 271 (4th Cir. 2007) (recognizing that the
Government may file a responsive brief raising the appellate
waiver issue or do nothing and allow this Court to perform the
Anders review).
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After United States v. Booker, 543 U.S. 220 (2005),
this court reviews a sentence for reasonableness, using an abuse
of discretion standard of review. Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). When
reviewing the district court’s Guidelines range calculation,
this court reviews the district court’s factual findings for
clear error and its legal interpretation of the Guidelines de
novo. See United States v. Dawkins, 202 F.3d 711, 714 (4th Cir.
2000).
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We discern no error in Miles’ sentence. Under U.S.
Sentencing Guidelines Manual (“USSG”) § 2B1.1 (2009), “loss” is
the greater of actual loss or intended loss. USSG § 2B1.1 cmt.
n.3(A) (2009). Actual loss is “the reasonably foreseeable
pecuniary harm that resulted from the offense,” and intended
loss is “the pecuniary harm that was intended to result from the
offense.” USSG § 2B1.1 cmt. n.3(A)(i)-(ii) (2009). In making
loss calculations, the sentencing court is instructed to hold
the defendant “responsible for the amount of loss which was
intended, not the actual loss ultimately sustained[.]” United
States v. Loayza, 107 F.3d 257, 266 (4th Cir. 1997). In fact,
this court has explicitly held in a mail fraud case involving
Medicare and Medicaid overbilling that the “Guidelines permit
courts to use intended loss in calculating a defendant's
sentence, even if this exceeds the amount of loss actually
possible, or likely to occur, as a result of the defendant's
conduct.” United States v. Miller, 316 F.3d 495, 502 (4th Cir.
2003).
A sentencing court must make only a “reasonable
estimate of the loss, given the available information.” Id. at
503 (internal quotation marks omitted); see USSG § 2B1.1, cmt.
n.3(C). Moreover, a sentencing enhancement need only be
supported by a preponderance of the evidence. Miller, 316 F.3d
at 503. We have reviewed the evidence regarding loss presented
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to the district court and have considered Miles’ arguments and
find no error with respect to the district court's loss
calculation.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Miles, in writing, of her right to petition the
Supreme Court of the United States for further review. If Miles
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 representation. Counsel’s
motion must state that a copy thereof was served on Miles. We
dispense with oral argument because the facts 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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