                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4318


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OLIVER W. JOHNSON, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00173-FDW-3)


Submitted:   March 31, 2011                 Decided:   April 11, 2011


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven T. Meier, MEIER LAW, 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Unpublished opinions are not binding precedent in this circuit.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:

            Oliver Johnson pled guilty, pursuant to a written plea

agreement, to conspiracy to defraud the United States, 18 U.S.C.

§ 371 (2006), and mail fraud and aiding and abetting same, 18

U.S.C. §§ 2, 1341 (2006), and was sentenced to a total term of

100   months     of   imprisonment.               He     noted        a    timely   appeal.

Johnson’s      attorney    has    filed       a        brief     in       accordance      with

Anders v. California, 386 U.S. 738 (1967), in which he asserts

that there are no meritorious issues for appeal but questions

the reasonableness of Johnson’s sentence.                      Specifically, counsel

argues that: (1) the government failed to prove the amount of

loss attributable to Johnson; (2) the government failed to prove

that the loss was foreseeable to Johnson; and (3) the district

court erred in assigning a two-level enhancement for abuse of a

position of public trust.          Although advised of his right to file

a supplemental pro se brief, Johnson has not done so.                               Finding

no error, we affirm.

            The guidelines provide that the amount of loss for

purposes of sentencing enhancements is the greater of the actual

loss or the intended loss.              U.S. Sentencing Guidelines Manual

(USSG) § 2B1.1 cmt. n.3(A) (2008).                       The amount of loss is a

factual     determination        reviewed         for     clear           error.       United

States v.    Loayza,      107    F.3d   257,       265     (4th           Cir.   1997).     A

sentencing court makes a “reasonable estimate of the loss, given

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the available information.”             United States v. Miller, 316 F.3d

495, 503 (4th Cir. 2003) (internal quotation marks omitted); see

USSG 2B1.1, cmt. n.3(C).         A sentencing enhancement need only be

supported by a preponderance of the evidence.                 Miller, 316 F.3d

at 503.    “Intended loss” is defined as “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,   cmt.    n.3(A)(ii).         The

intended loss amount may be used to determine a sentence, “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.

              Here, the district court determined that the amount of

loss (both intended and actual) was $2,565,580.31.                    This finding

was   based    on   the   evidence   and     testimony   of     FBI    Agent   Mike

McNeely, who testified at Johnson’s sentencing hearing that the

loss was calculated by totaling the loan amounts on inflated

properties and their actual fair market value—i.e., the “profit”

realized by the members of the conspiracy.                 According to Agent

McNeely, the estimate of loss was a conservative one because it

included only those transactions in which Johnson was directly

involved between October 2002 and June 2003, even though the

conspiracy continued through March 2005.             Also, the loss amount



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did not include two additional transactions in which Johnson

later admitted his involvement.

            We     find     no    clear      error       in   the   district        court’s

determination of the loss amount attributable to Johnson nor in

the     court’s    conclusion       that         these    losses     were       reasonably

foreseeable to him.

            With        respect    to   the       enhancement       for     abuse    of   a

position of trust, we review de novo a district court’s legal

interpretation of whether a defendant abused a position of trust

under USSG § 3B1.3 and review its factual findings for clear

error.     United States v. Ebersole, 411 F.3d 517, 535-36 (4th

Cir. 2005).       Section 3B1.3 provides that a defendant’s offense

level    should    be    increased      by   two     levels    “[i]f      the    defendant

abused a position of public or private trust, or used a special

skill, in a manner that significantly facilitated the commission

or concealment of the offense.”                    Accordingly, the enhancement

applies if “the defendant abused a position of trust and that

abuse     significantly           contributed            to   the      commission         or

concealment”       of    the     underlying       offense.          United      States    v.

Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999).

            The enhancement was applied here because Johnson, a

former attorney, acted pursuant to a power of attorney in the

closing of two fraudulent mortgage loans.                       We find no error in



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the   district   court’s      conclusion    that   Johnson’s    position    and

conduct warranted the enhancement.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Johnson’s conviction and sentence.                     This

court requires that counsel inform Johnson, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Johnson requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.    Counsel’s motion must state that a copy thereof

was served on Johnson.

            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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