                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4449


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL A. MARSHALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:13-cr-00261-FDW-1)


Submitted:   September 30, 2016           Decided:   October 13, 2016


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric J. Foster, Asheville, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Michael A. Marshall was convicted after a jury trial of

conspiracy    to   commit    offenses   against   the     United   States,

including wire fraud, bank fraud, and making false statements to

financial institutions, in violation of 18 U.S.C. § 371 (2012)

(count 1), bank fraud and aiding and abetting, in violation of

18 U.S.C. §§ 2, 1344 (2012) (count 2), and conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h) (2012).

The district court sentenced Marshall to 60 months’ imprisonment

on count 1 and concurrent terms of 96 months’ imprisonment on

each of counts 2 and 3.        Marshall now appeals.       On appeal, he

challenges the district court’s denial of his Fed. R. Crim. P.

29 motion for judgment of acquittal on the basis of insufficient

evidence, the district court’s instructions to the jury on count

1, and the district court’s calculation of the loss amount under

U.S. Sentencing Guidelines Manual § 2B1.1 (2014).          We affirm.

     We review a challenge to the sufficiency of the evidence de

novo and must affirm the jury’s verdict if it is supported by

substantial evidence, viewed in the light most favorable to the

Government.    United States v. Palomino-Coronado, 805 F.3d 127,

130 (4th Cir. 2015).        “Substantial evidence is evidence that a

reasonable    finder   of    fact   could   accept   as    adequate     and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”    Id. (internal quotation marks omitted).

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       After    review    of    the     record      and       the     parties’       briefs,       we

reject    as    wholly    without       merit       Marshall’s          challenges            to   the

sufficiency of the evidence underlying his convictions on all

three counts.        Marshall’s arguments fail to establish reversible

error    in    the   district         court’s      conclusion          that       the     evidence

adduced    at    trial    was    sufficient             to    support    his        convictions.

See 18 U.S.C. §§ 2, 371, 1014, 1343, 1344, 1956(h), 1957 (2012);

United States v. McNeal, 818 F.3d 141, 149 (4th Cir. 2016),

petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 28, 2016)

(No. 16-5017); United States v. Adepoju, 756 F.3d 250, 254-55

(4th Cir. 2014); United States v. Jefferson, 674 F.3d 332, 366

(4th    Cir.    2012);    United       States      v.        Singh,    518       F.3d    236,      248

(4th Cir.      2008);     United      States       v.    Cherry,       330       F.3d    658,      668

(4th Cir.       2003);    United       States      v.        Smith,    29     F.3d       914,      916

(4th Cir. 1994).

       Turning to the district court’s instructions on count 1, we

review    for     plain       error    Marshall’s            argument        that       the    court

erroneously instructed the jury with respect to the wire-fraud

object    because        he     did    not      object         below        to     the        court’s

instructions on the ground he now advances.                             See Fed. R. Crim.

P. 52(b); Henderson v. United States, 133 S. Ct. 1121, 1126-27

(2013).




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      Regarding    the   wire-fraud        object,    the   district   court

instructed the jury, among other matters, that:

      A violation of this statute would require proof that,
      one, someone in the conspiracy, with the intent to
      defraud, knowingly devised a scheme or artifice to
      defraud or to obtain money or property by means of
      material     false     or     fraudulent    pretenses,
      representations or promised [sic] as detailed in the
      indictment; and two, that in furtherance of the
      scheme, someone transmitted or caused the transmission
      of any writing by a means of a wire communication in
      interstate or foreign commerce.

J.A. 647 (emphases added).            Marshall argues that, because the

second use in this instruction of “someone” was not followed by

the words “in the conspiracy,” the jury could have found him

guilty when neither he nor any other member of the conspiracy

transmitted information by wire.            We conclude after review of

the record that the court’s second use in the instruction of the

word “someone” without the modifier “in the conspiracy” was not

clear or obvious error under the settled law of the Supreme

Court or of this circuit.       See United States v. Olano, 507 U.S.

725, 733 (1993); United States v. Carthorne, 726 F.3d 503, 516

(4th Cir. 2013).    Further, as Marshall has not suggested that he

would have been acquitted or that his trial would have ended in

a hung jury had the district court modified its second use of

the   word   “someone”   with   the    phrase   “in   the   conspiracy,”   he

cannot establish that the challenged instruction affected the

outcome of the trial.       See United States v. Godwin, 272 F.3d


                                       4
659, 680 (4th Cir. 2001); United States v. Nicolaou, 180 F.3d

565, 570 (4th Cir. 1999); United States v. Hastings, 134 F.3d

235, 240 (4th Cir. 1998).                Marshall thus has not carried his

burden    to       demonstrate    plain      error      in   the    district       court’s

instructions on count 1.

     Finally,          Marshall       challenges         the       district        court’s

calculation of the loss amount attributable to him under the

Sentencing Guidelines, arguing that the court erroneously failed

to credit against that amount payments made to the victims and

capital recovered by them prior to sentencing.                      Marshall did not

present    this      argument    below,      and   we    therefore    review       it    for

plain error only.         United States v. Strieper, 666 F.3d 288, 292

(4th Cir. 2012).

     Only      a    preponderance       of   the     evidence      need   support        the

district       court’s    factual       determination        of    the    loss      amount

attributable to Marshall.               United States v. Miller, 316 F.3d

495, 503 (4th Cir. 2003).               The district court need only make a

“reasonable        estimate”     of   the    loss.       United    States     v.    Cloud,

680 F.3d 396, 409 (4th Cir. 2012); USSG § 2B1.1 cmt. n.3(C).

Generally, the loss amount under USSG § 2B1.1 “is the greater of

actual loss or intended loss.”               USSG § 2B1.1 cmt. n.3(A).

     Here, the presentence report recommended application of a

14-level    enhancement         under    USSG      § 2B1.1(b)(1)(H)       for      a    loss

exceeding $400,000 based on the determination in the description

                                             5
of the offense conduct that the loss to the victim lenders as

result of Marshall’s criminal conduct was over $425,000.                          The

district court adopted the portion of the PSR calculating the

loss amount and relied on the information therein in calculating

Marshall’s Guidelines range and imposing sentence.                      As Marshall

made no affirmative showing that the information in the PSR was

not correct, the district court was free to adopt and rely on it

in sentencing him.           See United States v. Revels, 455 F.3d 448,

451 n.2 (4th Cir. 2006); 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).        The     undisputed     relevant    conduct     easily

establishes      a   loss    amount      exceeding   $400,000.      The    district

court,    therefore,        did    not    plainly    err   in   holding    Marshall

accountable for a loss amount exceeding $400,000.

       Accordingly, we affirm the criminal judgment.                    We dispense

with oral argument because the facts and legal contentions are

adequately      presented     in    the    materials   before    this     court   and

argument would not aid the decisional process.

                                                                           AFFIRMED




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