         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                               March 11, 2008
                               No. 07-30625
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

ROBERT EARL STAFFORD

                                         Defendant-Appellant


                Appeal from the United States District Court
                   for the Western District of Louisiana
                        USDC No. 5:06-CR-50135-13


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
     Robert Earl Stafford appeals the sentence imposed after he pleaded guilty
to two counts of a multi-count indictment alleging numerous instances of mail
fraud arising from a scheme to defraud insurance companies through false
claims. The district court imposed a 24-month sentence, which was above the
advisory guidelines maximum sentence of 10 months.
     Stafford contends that the amount of loss was miscalculated and should
not have included insurance payments for legitimate claims arising from the

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-30625

accident. The district court was entitled to rely on the loss amount calculated
in the presentence report because Stafford presented no evidence that any claim
was legitimate. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006);
see also United States v. Fisk, 233 F. App’x 371, 373 (5th Cir. 2007).
      Stafford contends that the restitution order was erroneous because the loss
amount was miscalculated. Because the loss was correctly calculated, the
restitution order was correct.
      Stafford contends that he was “improperly” sentenced above the guidelines
range. The sentence was reasonable as either an upward departure under
U.S.S.G. § 4A1.3(a) or as a non-guidelines sentence under 18 U.S.C. § 3553(a).
See Gall v. United States, 128 S. Ct. 586, 595-97 (2007). The district court based
the sentence on numerous repeat DWI offenses that were not counted in
Stafford’s criminal history score, and the court clearly explained that the
enhanced sentence was needed for deterrence and protection of the public under
§ 3553(a).
      The judgment of the district court is AFFIRMED.




                                        2
