                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4351


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM A. MCDOWELL,

                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-2)


Submitted:   July 1, 2010                 Decided:    July 16, 2010


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, 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Unpublished opinions are not binding precedent in this circuit.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:

           William McDowell was convicted by a jury of conspiracy

to defraud the United States, money laundering, and aiding and

abetting mail fraud, 18 U.S.C. §§ 371, 1341, 1956(h) (2006), and

was sentenced to a total term of 108 months imprisonment.                    He

noted a timely appeal.        McDowell’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 whether the district court erred in assigning a

sixteen-level increase to McDowell’s base offense level based on

the   amount    of    loss   involved.       McDowell   has    filed   pro   se

supplemental briefs in which he also challenges the district

court’s calculation of loss attributable to him at sentencing.

In addition, McDowell asserts that his rights under the Speedy

Trial Act were violated and he was denied effective assistance

of counsel.     Finding these claims without merit, we affirm.

           The evidence presented at McDowell’s trial established

that he and a number of other individuals participated in a

mortgage fraud scheme between February 2002 and March 2005 in

Charlotte, North Carolina.        McDowell, as one of the promoters of

the   scheme,        would   locate   individuals       with    good    credit

scores/history and convince them to “invest” in his real estate

plan as follows:        The buyer/investor would apply for a mortgage

loan using an inflated purchase price; the property would have

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already    been       acquired       by   McDowell          and    others     at       fair    market

value.    The difference between the actual price of the property

and the inflated loan value was divided among the participants,

including a payment to the buyer/investor.

              The      majority        of    the       properties            were       ultimately

foreclosed      upon.       The      total    loss      attributed           to    McDowell         was

between $1 million and $2.5 million.                          Based on a total offense

level    of    31     and   a   criminal      history             category       II,    McDowell’s

sentencing          range   was      121     to       151     months        of     imprisonment.

However, the district court reduced McDowell’s criminal history

category to I, based on its conclusion that his criminal history

score overstated the seriousness of his criminal history, and

found that his revised advisory guidelines range was 108 to 135

months of imprisonment.                   The court sentenced McDowell to 108

months    imprisonment          on   counts       four,       five,    and       seven,       and   60

months on count one, to be served concurrently.

              McDowell      first         challenges         the     calculation          of     loss

attributable to him at sentencing.                          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).

Here, McDowell’s base offense level was increased by sixteen

because       the    district        court    determined             that        the    amount      of



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intended       and   actual     loss       was       between    $1   million    and    $2.5

million.

            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 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 sentencing, “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.                 Accordingly,

the    district      court    did    not    clearly       err   in    finding   that    the

amount of loss for sentencing purposes was the aggregate face

amount of the fraudulent loans issued.                     McDowell’s argument that

he should be credited with any recovery received by the victim

banks through foreclosure sales should be addressed in a motion

to modify the restitution order.



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            McDowell also argues that, in light of the Supreme

Court’s decision in United States v. Santos, 128 S. Ct. 2020

(2008),    the     amount       of    loss    should        have   been      “net    loss,”

calculated by subtracting the reasonable market value of the

homes    from    the     loan    amounts.         We   decline     to   so    extend    the

holding in Santos.

            In     his    supplemental        pro      se    briefs,      McDowell     also

claims that his rights under the Speedy Trial Act (STA), 18

U.S.C. § 3161 (2006), were violated.                   McDowell did not, however,

move to dismiss the indictment based on the STA, and thus has

waived review of that issue.                 See 18 U.S.C. § 3162(a)(2) (2006)

(“Failure of the defendant to move for dismissal prior to trial

. . . shall constitute a waiver of the right to dismissal [of

the indictment].”).             In any event, we find this claim meritless

as the delays in the commencement of McDowell’s trial resulted

from his motions to continue, all of which were granted.

            Finally, McDowell argues that he was denied effective

assistance of counsel.               This claim is more appropriately raised

in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.

2009),    unless       counsel’s       alleged     ineffectiveness           conclusively

appears on the record.                See United States v. Richardson, 195

F.3d 192, 198 (4th Cir. 1999).                   We have reviewed the record and

we find no conclusive evidence that counsel rendered ineffective



                                             5
assistance.     Accordingly, we decline to consider the claim on

direct appeal.

            In accordance with Anders, we have reviewed the record

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

We therefore affirm the district court’s judgment.                       We deny all

motions for withdrawal/substitution of counsel, and McDowell’s

motions to strike the Anders brief, to expedite, and for bail

pending    appeal.          This   court       requires    that    counsel      inform

McDowell, in writing, of the right to petition the Supreme Court

of the United States for further review.                    If McDowell 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 McDowell.                                 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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