                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).




                                              2
               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).



                                            3
            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

                                              4
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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