                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4923


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RANDALL A. MONEYMAKER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:07-cr-00029-jct-1)


Submitted:    October 5, 2009                 Decided:   October 15, 2009


Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Fay F. Spence,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant.   Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Randall A. Moneymaker was found guilty of two counts

of knowingly making or using a false document, in violation of

18 U.S.C. § 1001(a)(3) (2006) (Counts 1, 3); three counts of

making a false statement or representation, in violation of 18

U.S.C. § 1001(a)(2) (2006) (Counts 3, 5, and 6); and theft of

government funds, in violation of 18 U.S.C.A. § 641 (West Supp.

2009) (Count 7).         The district court sentenced Moneymaker to

thirty-six     months    of     imprisonment      for   each    count      to   run

concurrent to each other.

            On appeal, Moneymaker only contests his conviction and

sentence for Count 1.            Counsel raises two issues on appeal.

First, whether Moneymaker was improperly convicted of submitting

a   false   document    in    support   of   a   fraudulent    application      for

military     pension    benefits,       as   alleged    in    Count    1   of   the

superseding indictment, when the evidence established that no

application for pension benefits was ever submitted.                       Second,

whether the amount of intended loss and amount of restitution

improperly included all disability benefits rather than just the

benefits to which Moneymaker was not entitled.                 For the reasons

that follow, we affirm.

            To the extent Moneymaker alleges insufficient evidence

to support Count 1, we find this claim fails.                         Viewing the

evidence in the light most favorable to the prosecution, any

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rational trier of fact could have found the essential elements

of    the   crime    beyond       a       reasonable            doubt.      Glasser       v.    United

States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d

849, 862-63 (4th Cir. 1996).                              Moreover, we find there was a

variance--rather        than          a     constructive             amendment--between              the

superseding indictment and the trial evidence revealing that the

admittedly     false        document           was        not    submitted     as    part       of    an

official application for retirement.                              United States v. Randall,

171    F.3d   195,     203       (4th          Cir.       1999);     see    United     States         v.

Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (recognizing that a

constructive         amendment            to     an        indictment       occurs        when       the

government      or     the       court          broadens          the    possible     bases          for

conviction beyond those presented by the grand jury).

              Second,       we    will         affirm        a    sentence     imposed         by    the

district court if it is within the statutorily prescribed range

and it is reasonable.                 United States v. Hughes, 401 F.3d 540,

546-47 (4th Cir. 2005).                   We find no abuse of discretion in the

district court’s sentence.                     See Gall v. United States, 552 U.S.

38, __, 128 S. Ct. 586, 590 (2007) (providing review standard).

More    specifically,        we       find       no        clear    error     in    the    district

court’s     factual     determination                 that       Moneymaker    was    responsible

for all losses related to his receipt of disability payments

(actual     loss)     and    future            payments          (intended     loss).           United

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

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the sentencing court made a reasonable estimate of the loss,

given the available information.           United States v. Miller, 316

F.3d 495, 503 (4th Cir. 2003); see U.S. Sentencing Guidelines

Manual    § 2B1.1(b),    comment.   (n.3(C))     (2007).      A    sentencing

enhancement need only be supported by a preponderance of the

evidence.      Miller, 316 F.3d at 503.      The same reasoning applies

to the district court’s order of restitution in the amount of

the disability payments actually paid to Moneymaker.

            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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