                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4210



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMES THOMAS DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00226-H)


Submitted:   March 26, 2008                 Decided:   April 14, 2008


Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


R. Clarke Speaks, Edwin J. Tisdale, SPEAKS LAW FIRM PC, Wilmington,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury convicted James Thomas Davis of conspiracy to make

false statements and to commit mail and wire fraud, in violation of

18 U.S.C.A. § 371 (West 2000 & Supp. 2007); two counts of making

false statements on documents, in violation of 18 U.S.C.A. § 1001

(West 2000 & Supp. 2007); one count of wire fraud, in violation of

18 U.S.C.A. § 1343 (West Supp. 2007); and two counts of mail fraud,

in violation of 18 U.S.C.A. § 1341 (West 2000 & Supp. 2007).                  The

district   court   sentenced   him    to    a    total   of   200    months    of

imprisonment.      Davis   appeals    his       convictions   and    sentence,

asserting that counsel provided ineffective assistance and that the

district court erred in calculating his total offense level.                   We

affirm.

           Davis   asserts     that    counsel       provided       ineffective

assistance by failing to present a defense.              Specifically, Davis

contends that counsel failed to challenge on cross-examination

Yvonne Smith’s recollection of him, failed to object to Mary Sabo’s

lack of knowledge of the loan underwriting process and to an

exhibit admitted during her testimony, and failed to cross-examine

Anne Campbell. Next, Davis asserts that counsel should have called

realtors and appraisers to give the jury a different perspective on

his conduct and that counsel failed to introduce a videotape that

could have provided unspecified exculpatory evidence.               Davis also

asserts that his attorneys, assistant federal public defenders,


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provided ineffective assistance due to a conflict of interest--

specifically, that the sister of an investigator in the public

defender’s office was an alleged victim of Davis’ crimes.

            This court, however, “may address [claims of ineffective

assistance] on direct appeal only if the lawyer’s ineffectiveness

conclusively     appears   from    the   record.”     United     States   v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).         Our careful review

of the trial transcript leads us to conclude that Davis fails to

meet this high standard.          We therefore decline to review these

claims on direct appeal.

            With regard to his sentence, Davis contends that the

district court erred in applying a sixteen-level enhancement under

U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(I) (2006),

based upon the amount of loss because the court should not have

relied on fraudulent transactions that were not presented at trial.

He also contends that the district court wrongly applied an upward

adjustment under USSG § 3B1.3 for abuse of a position of trust

because he never held himself out to be a licensed real estate

professional.

            Appellate courts review sentences imposed by district

courts   for    reasonableness,     applying   an   abuse   of   discretion

standard.      Gall v. United States, 128 S. Ct. 586, 597-98 (2007);

United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).

When sentencing a defendant after United States v. Booker, 543 U.S.


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220 (2005), a district court must properly calculate the guideline

range, determine whether a sentence within that range serves the

factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007),

and determine an appropriate sentence. Gall, 128 S. Ct. at 596-97;

Pauley, 511 F.3d at 473.            In the Fourth Circuit, “[a] sentence

within the proper Sentencing Guidelines range is presumptively

reasonable.”       United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)

(upholding presumption of reasonableness for within-Guidelines

sentence).

            Although Davis asserts that the district court erred by

considering loss amounts not presented at trial, we find that the

district court properly applied the preponderance of the evidence

standard in determining the amount of loss.             See United States v.

Morris, 429 F.3d 65, 72 (4th Cir. 2005).               We also reject Davis’

challenge    to    the   district    court’s     application      of    an   upward

adjustment for abuse of a position of trust.                See United States v.

Ebersole,    411    F.3d   517,    535-36     (4th   Cir.    2005)     (discussing

standards for applying USSG § 3B1.3); United States v. Bollin, 264

F.3d 391, 416 (4th Cir. 2001) (upholding adjustment where defendant

led   investors     to   believe    “he   was   a    legitimate,       experienced

debentures trader” and “the investors provided [defendant] with the

discretion to invest on their behalf and expected [defendant] to

make trades in their best interest, which he did not do”); United


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States v. Hussey, 254 F.3d 428, 431-32 (2d Cir. 2001) (upholding

§   3B1.3   adjustment     where    victims    believed   defendants       were

legitimate stockbrokers and acted as fiduciaries in suggesting and

trading stocks); see also United States v. Sudeen, 434 F.3d 384,

391-92 (5th Cir. 2005) (citing Hussey and rejecting argument that,

for § 3B1.3 adjustment to apply, defendant must legitimately occupy

position of trust).      We therefore find no error in the district

court’s calculation of Davis’ total offense level.

            Accordingly, we affirm the district court’s judgment and

decline to review Davis’ claims of ineffective assistance of

counsel on direct appeal.      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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