                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4711


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

LLOYD MALLORY,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:09-cr-00228-TSE-2)


Argued:   October 25, 2011                 Decided:   January 19, 2012


Before MOTZ, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Barry Coburn, COBURN & COFFMAN, PLLC, Washington, D.C.,
for Appellant. Michael John Frank, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A grand jury charged Lloyd Mallory and two co-conspirators,

Michael Milan and Chris Evans, in a twelve-count superseding

indictment.       It charged Mallory specifically with the following

three counts: wire fraud, in violation of 18 U.S.C. § 1343; mail

fraud,    in    violation     of    18   U.S.C.       §    1341;    and    conspiracy      to

commit wire and mail fraud, in violation of 18 U.S.C. § 1349.

Mallory     exercised      his     right   to     a       trial    by   jury.        At   its

conclusion,      the   jury      found   Mallory          guilty   of     mail    fraud   and

conspiracy to commit wire and mail fraud, but acquitted him of

wire fraud.        The district court made a downward variance and

sentenced Mallory to 60 months’ imprisonment for each count of

his conviction, with the sentences to run concurrently.                                   The

court also entered a restitution order for the amount of loss.

Mallory filed a timely appeal, raising six alleged errors.                                For

the reasons explained below, we affirm.



                                           I.

       The jury convicted Mallory, a certified public accountant

(CPA), of participating in a conspiracy between the fall of 2006

and June 2008 to defraud various money lenders by causing them

to issue mortgage loans to unqualified home buyers.                              Mallory did

this   by      producing    fraudulent     documents          that      supported      false

claims about the borrowers’ employment and income.                           The evidence

                                           2
educed at trial established that Mallory drafted fraudulent tax

returns, W-2 forms, and CPA letters to convince the lenders to

issue the bad loans.

        Melanie    Eckstrom,   a   mortgage      processor    and    one   of   the

government’s witnesses at trial, testified that she was part of

the scheme.        Eckstrom was a mortgage processor at two mortgage

brokerages, Congressional Funding and Preferred Choice Mortgage.

As a part of her duties, Eckstrom prepared mortgage applications

and collected the documents lenders require to determine whether

to issue a loan, including such items as tax returns and W-2

statements.        According to the testimony at trial, every loan

that Eckstrom processed was fraudulent in some manner.

        During    the   relevant   time       period,   Milan,     Mallory’s    co-

conspirator,      was   a   mortgage   broker     for    Congressional     Funding

and, starting in October 2007, Preferred Choice Mortgage.                   Among

other    things,    mortgage    brokers       assist    would-be    borrowers   in

completing the lender’s mortgage application.                A mortgage broker

is paid in two ways: by the lender, when the loan is approved,

and by the borrower, when points are charged.

     Eckstrom and Milan had an arrangement with Mallory whereby

Mallory would create fraudulent documents.                 During the relevant

time period, Eckstrom, Milan, and a phantom company created by

Milan, cleverly named “Phantom Financial, LLC,” received over

$100,000 in commissions.

                                          3
      Initially,    Mallory          was    charged       alongside    co-conspirators

Milan and Evans.          Milan and Evans, however, pled guilty before

trial.

      At trial, Mallory testified in his own defense.                            Although

he   acknowledged       that    he    drafted       the    documents     at   issue,    he

asserted   that    he     did   not        know    they   were   being    used    for   an

unlawful purpose.         Moreover, Mallory maintained that the false

tax returns that he compiled were for the purpose of exploring

potential tax strategies.

      Following a five-day trial, the court convicted Mallory of

mail fraud and conspiracy to commit wire and mail fraud, but

acquitted him of wire fraud.                  The district court sentenced him

to 60 months’ imprisonment for each count of his conviction, to

run concurrently.          The court also entered a restitution order

for the amount of loss.          Mallory filed a timely appeal.



                                             II.

      Mallory     first    argues      that        the    district    court   committed

reversible error by asking impermissible questions of Eckstrom

during the trial regarding Mallory’s state of mind.                               Because

Mallory failed to object to the questioning at trial, we review

only for plain error.           See United States v. Lynn, 592 F.3d 572,

577 (4th Cir. 2010).            To demonstrate plain error, a defendant

must establish (1) that the trial court erred, (2) that the

                                              4
error is clear and obvious, and (3) that the error affected his

substantial rights.         United States v. Olano, 507 U.S. 725, 732-

34 (1993).       Nevertheless, even if this burden is met, we have

discretion whether to recognize the error, and we will not do so

unless “the error seriously affect[s] the fairness, integrity or

public      reputation    of   judicial     proceedings.”        Id.     at   736

(alteration in original) (quoting United States v. Atkinson, 297

U.S. 157, 160 (1936)) (internal quotation marks omitted).

      The     questioning      at   issue    occurred     during       Eckstrom’s

testimony regarding Mallory’s role in the mortgage fraud scheme.

Specifically,      the    district     court      inquired    into      Mallory’s

knowledge regarding the false tax returns.               Mallory argues that

the   district    court   improperly      asked   Eckstrom    about     Mallory’s

state of mind.      The testimony Mallory finds objectionable is as

follows:

      Eckstrom: [Mallory]   was         preparing       fraudulent      tax
                returns for us.
      Court:    Did he know they       were false?
      Eckstrom: Yes.
      Court:    How? How do you        know that?
      Eckstrom: I guess I really       can’t say how.        I mean—

      Questioning by the district court is plainly permissible.

See Fed. R. Evid. 614.              The court must not, however, “give

. . . the appearance of bias or partiality in any way or become

. . . so pervasive in his interruptions and interrogations that

he may appear to usurp the role of either the prosecutor or the


                                       5
defendant’s counsel.”         United States v. Wilson, 135 F.3d 291,

307 (4th    Cir.    1998)   (omissions       in     original)    (quoting      United

States v. Parodi, 703 F.2d 768, 776 (4th Cir. 1983)) (internal

quotation marks omitted).

     Assuming,      without     deciding,         that    the    district      court

improperly questioned Eckstrom as to Mallory’s state of mind, we

are unable to say that the questioning prejudiced Mallory.                         To

the extent that the district court improperly caused Eckstrom to

testify that Mallory knew that the tax returns were false, it

mitigated the error by following up with a question about how

she knew.    She replied, “I guess I really can’t say how.”

     Moreover, the district court ameliorated any error in its

questioning by giving the following instruction to the jury:

     Now, during the course of the trial I occasionally
     asked questions of a witness.   Do not assume that I
     hold any opinion on the matters to which my questions
     may have related. The Court asked questions simply to
     clarify matters, not to help one side of the case or
     hurt the other.

     As     such,   neither     the    fairness,         integrity,      or   public

reputation of the proceedings nor Mallory’s substantial rights

were affected.      Hence, we find no reversible error.



                                       III.

     Mallory    next   contends       that    the    district    court     erred   in

admitting    into    evidence   a     certification       of    business      record,


                                        6
which      the    government      relied     upon       in   introducing        a    Federal

Express (FedEx) tracking record into evidence.                             The tracking

record helped establish the mail fraud charge against Mallory.

According        to    Mallory,     this    admission        violated     his       right   to

confront the witnesses against him as guaranteed by the Sixth

Amendment.            We review this issue de novo.                United States v.

Williams, 632 F.3d 129, 132 (4th Cir. 2011).

      The certification of business record was offered pursuant

to Federal Rule of Evidence 902(11) and signed under penalty of

perjury by a FedEx records custodian.                    In the certification, the

records custodian declared the following:

      [T]he documents are original records or true copies of
      records that were:

      1.     made at or near the time of the occurrence of the
             matters described in the documents, by (or from
             information   transmitted   by)  a  person   with
             knowledge of those matters;

      2.     kept   in  the   course               of    regularly      conducted
             business activity; and

      3.     made by the said business activity as a regular
             practice.

      In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme

Court    made     clear    that     the    right    of   confrontation          covers      all

testimonial “statements that declarants would reasonably expect

to be used prosecutorily.”                Id. at 51. (internal quotation marks

omitted).        To be considered testimonial, the primary purpose of

the     statement       must   be    “to    establish        or   prove    past       events

                                             7
potentially relevant to later criminal prosecution.”                                     Davis v.

Washington,        547    U.S.    813,     822       (2006).        Business       records      are

generally admissible, even without confrontation.                                Bullcoming v.

New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011).                                   “[H]aving been

created for the administration of an entity’s affairs and not

for the purpose of establishing or proving some fact at trial—

they   are       not    testimonial.”            Id.        (quoting       Melendez–Diaz         v.

Massachusetts,           129   S.    Ct.    2527,          2539-40       (2009))        (internal

quotation marks omitted).

       It is beyond dispute that the FedEx tracking record was not

created “for the purpose of establishing or proving some fact at

trial.”          Id.       Thus,     as    was       uncontested         below,    it    was    not

testimonial and was not subject to confrontation.

       The certification of business record was, however, created

for the sole purpose of use at trial.                          Thus, we must consider

whether      its      admission     violated         Mallory’s      Confrontation            Clause

rights.          In    Melendez-Diaz,       the          Supreme    Court       described       the

difference between an affidavit that is created for the purpose

of   providing         evidence     against          a   defendant        and     an    affidavit

created for the purpose of authenticating an admissible record.

It stated, “A clerk could by affidavit authenticate or provide a

copy    of       an     otherwise     admissible             record,       but         could    not

. . . create a record for the sole purpose of providing evidence

against      a     defendant.”        Melendez-Diaz,               129    S.    Ct.     at     2539.

                                                 8
Moreover, the majority dismissed the dissent’s fear that its

holding      would       disrupt       the        long-accepted           practice       of

authenticating documents pursuant to Rule 902(11): “Contrary to

the dissent’s suggestion, we do not hold, and it is not the

case,     that     anyone      whose     testimony         may      be     relevant     in

establishing the . . . authenticity of the sample . . . must

appear in person as part of the prosecution’s case.”                                Id. at

2532 n.1 (citation omitted).

      Consequently,          Melendez-Diaz        makes    clear     that     the     Sixth

Amendment right to confront witnesses does not include the right

to   confront      a   records    custodian        who    submits    a     Rule     902(11)

certification of a record that was created in the course of a

regularly         conducted      business          activity.              Because      the

certification does not trigger the Confrontation Clause, we are

unable to find a constitutional violation here.



                                         IV.

      Mallory next avers that there is insufficient evidence to

support     his    convictions.          A       defendant    who        challenges    the

sufficiency       of   the   evidence    faces      a    “heavy    burden.”         United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quoting

United States v. Hoyle, 51 F.3d 1239, 1245 (4th Cir. 1995))

(internal    quotation        marks    omitted).          “[A]n    appellate        court’s

reversal of a conviction on grounds of insufficient evidence

                                             9
should be ‘confined to cases where the prosecution’s failure is

clear.’”        United States v. Jones, 735 F.2d 785, 791 (4th Cir.

1984) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)).

The    jury’s     verdict   must      be    upheld      on   appeal      if       there   is

substantial evidence in the record to support it.                             Glasser v.

United States, 315 U.S. 60, 80 (1942).                   We review the record in

the    light     most   favorable      to    the    government       in    determining

whether there is substantial evidence to support the conviction.

United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

Circumstantial as well as direct evidence is considered, and the

government is allowed “the benefit of all reasonable inferences

from    the     facts   proven   to    those       sought    to    be     established.”

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

In evaluating the sufficiency of the evidence, we do not review

the credibility of the witnesses and we “assume that the jury

resolved all contradictions [in the testimony] in favor of the

government.”        United States v. Romer, 148 F.3d 359, 364 (4th

Cir.    1998)    (quoting   United     States      v.    United    Med.       &    Surgical

Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993)) (internal

quotation marks omitted).



                                             A.

       As to his sufficiency of the evidence claim, Mallory first

avers    that    the    government    failed       to   prove     that    he      used    the

                                            10
United    Postal       Service    or    another       interstate    carrier        for    the

purpose    of     executing      his   fraudulent        scheme.        Pursuant     to   18

U.S.C. § 1341, to prove mail fraud the government is required to

establish that the defendant (1) knowingly participated in a

scheme to defraud and (2) used the mail or another interstate

carrier for the purpose of executing such scheme.                         United States

v. Delfino, 510 F.3d 468, 471 (4th Cir. 2007).

      Mallory      contends      that    the       government     failed      to   present

substantial evidence as to whether FedEx is such an interstate

carrier.        For the reasons set forth in the district court’s

comprehensive and well-reasoned order on this issue, we affirm.

See Order, United States v. Mallory, No. 1:09cr228 (E.D. Va. May

13, 2010), ECF No. 225.



                                              B.

      Mallory’s second sufficiency of the evidence claim is that

the government failed to put forth any evidence proving that he

had the requisite knowledge that the documents he created were

false,     that    he    harbored       any    specific      fraudulent       intent      in

crafting them, or that he knew that the documents were being

used for an unlawful purpose.                  Moreover, according to Mallory,

the   government         neglected       to        present   expert      testimony        to

establish       that    the   information           he   relied    on    to   draft       the



                                              11
documents        he     produced          was        inadequate     from     an       accounting

perspective.

        Quite simply, the evidence of Mallory’s knowledge of the

falsity    of    the        documents      that       he    produced,     his    knowledge     of

their    unlawful           use,    and    his       fraudulent     intent       is    not   only

substantial, it is overwhelming.                          The documentary evidence alone

establishes his knowledge and fraudulent intent.                                 At trial, the

government presented false tax returns, fraudulent CPA letters,

and   fake      W-2    forms       that    Mallory          prepared,     which    showed      his

intent     and        knowledge.                It        also   presented       emails      that

demonstrated          the    same.        In    addition,        there     was   testimony     at

trial that Mallory knowingly created the false documents.

      Moreover, Mallory testified at trial that he was unaware

that the documents he prepared were being used for an unlawful

purpose.        The jury, however, disbelieved his testimony.                                That

the     jury     found        his     testimony             implausible     may       constitute

additional evidence in support of Mallory’s conviction.                                       See

United    States       v.     Burgos,      94        F.3d    849,   868    (4th    Cir.      1996)

(“[T]he        jury     evidently          believed          [the   defendant]          perjured

himself. . . . [H]is perjured testimony could have been viewed

as affirmative evidence of his guilt.                            Thus, [the defendant’s]

lying on the stand may have aided in establishing the fact that

he was guilty.”); United States v. Bennett, 848 F.2d 1134, 1139

(11th     Cir.    1988)        (“By       choosing          to   present     a    defense     the

                                                     12
[defendants]      incurred   the     risk    that     they    might     bolster       the

government’s      case.      Indeed,        this     court    has     held     that    a

defendant’s     implausible     explanation          may     constitute       positive

evidence in support of a jury verdict.”).

      We disagree with Mallory’s contention that the government

was required to present expert testimony to establish that the

information he relied on to draft the documents he created was

insufficient from an accounting perspective.                  It suffices to say

that there is no requirement that the government present expert

testimony on this matter.



                                       V.

      According     to    Mallory,    the     district       court    violated        his

rights pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

in that the record fails to establish that the court conducted

the   requisite    balancing    test    when       deciding    whether        to    grant

three requests for a continuance.                  In considering Speedy Trial

Act arguments, we review the district court’s legal conclusions

de novo and its factual findings for clear error.                     United States

v. Kellam, 568 F.3d 125, 132 (4th Cir. 2009).

      The Act requires that a criminal trial begin within seventy

days of the filing of an information or indictment, or of the

defendant’s       initial     appearance,          whichever         occurs        later.

§ 3161(c)(1).      To afford courts some flexibility in scheduling

                                       13
trials, however, the Act provides that certain periods of delay

may    be       excluded       from     the       seventy-day       computation.               As    is

applicable in Mallory’s case, § 3161(h)(7)(A) excludes from the

seventy-day computation those delays in which the district court

finds       “that       the     ends     of        justice     served       by    granting          [a]

continuance outweigh the public’s and defendant’s interests in a

speedy trial.”                Zedner v. United States, 547 U.S. 489, 498–99

(2006).

       The Act lists several factors that the district court must

consider when making the “ends of justice” assessment required

by     §    3161(h)(7)(A),            including          whether     the     defendant             needs

reasonable          time       to     obtain        counsel,       whether       counsel       needs

additional         time       for   effective           preparation     of       the       case,    and

whether         delay    is    necessary          to     ensure    continuity          of    counsel.

§ 3161(h)(7)(B)(iv).                The Act also makes clear that the district

court      is    not     to    grant    a        continuance       because       of    a    “lack     of

diligent preparation or failure to obtain available witnesses on

the        part         of      the         attorney         for      the         [g]overnment.”

§ 3161(h)(7)(C).

       Before       a     delay       can     be       considered    excludable             from    the

seventy-day          computation,            the        district     court       must        explain,

“either orally or in writing, its reasons for finding that the

ends       of   justice        served       by    the    granting     of     such      continuance

outweigh the best interests of the public and the defendant in a

                                                    14
speedy trial.”         § 3161(h)(7)(A).             The district court is required

to state its findings on the record by the time it rules on the

defendant’s motion to dismiss.                Zedner, 547 U.S. at 506–07.                       It

also must be “clear from the record that the court conducted the

mandatory balancing contemporaneously with the granting of the

continuance.”         United States v. Henry, 538 F.3d 300, 304 (4th

Cir. 2008) (quoting United States v. Keith, 42 F.3d 234, 237

(4th   Cir.     1994))     (internal      quotation        marks       omitted).           If   a

district court fails to state its findings on the record, then

the delay is not excludable under the Act.                         Zedner, 547 U.S. at

507.

       The district court granted three continuances before the

case finally went to trial.                  Regarding the first continuance,

Mallory,      along       with     his    co-defendants,           Milan       and       Evans,

requested       a   six-month      continuance        on   the    basis      of    the   large

amount     of       discovery      associated         with       the     case.           After

consideration        of   the    request,       the    district        court       found    the

request    excessive       and     granted      a    continuance        of    four       months

instead.

       A little over two months later, counsel for Milan requested

a   second      continuance.         In   argument         to    the    district         court,

Milan’s      counsel      sought     an   additional         four-month           continuance

because of the size and complexity of the case.                              He indicated

that   Mallory’s       counsel      did   not       oppose       the   request.           In    a

                                           15
subsequent         hearing,    all    defendants        indicated        their    agreement

with    the     motion.         Thus,       the   district           court    granted     the

continuance.         Milan and Evans subsequently pled guilty.

       Just days before the trial began, after being surprised to

discover       that    the     government         was        going     to    offer    expert

testimony, Mallory requested a third continuance for the purpose

of procuring his own expert.                The district court granted him an

additional two weeks to obtain an expert.

       From    our    review    of    the    record,         it   is   evident     that   the

district court granted the three requested continuances based

upon    a     contemporaneous         balancing         of    the      required      factors,

including      a    finding    that    Mallory’s         counsel       needed     additional

time to prepare Mallory’s defense, and in utmost consideration

of the extent to which the continuances were needed to serve the

interests of justice.           Furthermore, the district court abided by

the requirement that it state its findings on the record by the

time it ruled on the defendant’s motion to dismiss.                              In denying

the motion to dismiss, the district court stated the following:

             [T]o be clear, the continuances granted were, in
       fact, reasonably necessary . . . to serve the ends of
       justice, and these ends outweighed the interest of the
       public and Mr. Mallory in a speedy trial.       This was
       particularly true in light of the complex nature of
       this fraud conspiracy case, the fact that there were
       three     defendants   with    potentially   conflicting
       defenses,    the   significant   amount   of  electronic
       evidence in issue, and the fact that Mr. Milan had
       only a single court-appointed lawyer.         Thus, the
       factors required for a continuance under § 3161(h)(7)

                                             16
      were clearly satisfied              and    the    continuances      were
      granted for this reason.

United States v. Mallory, No. 1:09cr228, 2010 WL 1039831, at *3

(E.D. Va. Mar. 19, 2010).           Accordingly, we find no error.



                                          VI.

      Next, Mallory avows that venue was improper in the Eastern

District of Virginia because his office was in Maryland and all

of the acts that he allegedly committed in furtherance of the

conspiracy occurred in Maryland.                He also argues that the issue

is not waived.

      The prosecution must establish venue by a preponderance of

the   evidence,     and    we    review    de    novo    the    district    court’s

decision as to venue.           United States v. Newsom, 9 F.3d 337, 338

(4th Cir. 1993).          Venue is proper “in [any] district where the

offense was committed.”          Fed. R. Crim. P. 18.            “If an objection

to venue is not raised in the district court, the issue is

waived on appeal.           A defendant, however, does not waive his

venue objection by failing to file a written pleading.”                       United

States v. Stewart, 256 F.3d 231, 238 (4th Cir. 2001) (citations

omitted).     As    the     Stewart    court      recognized,     there    are    two

purposes of the contemporaneous objection rule: (1) to preserve

judicial resources by making sure that the district court has

the   opportunity    to     avoid    errors     that,   if     uncorrected,      might


                                          17
require      a    retrial,      and     (2)        “to     prevent     counsel      from

‘“sandbagging” the courts by withholding a valid objection from

the trial court . . . to obtain a new trial when the error is

recognized on appeal.’”            Id. at 239 (quoting United States v.

David, 83 F.3d 638, 645 (4th Cir. 1996)).

       If Mallory’s venue claim is waived, we need not reach the

merits      of   the   issue.      Thus       we   first    consider    whether      the

argument is waived.          In contending that his venue argument is

not waived, Mallory cites to language in Stewart where we made

clear that “[b]ecause proper venue is a constitutional right,

waivers of venue rights through failure to object should not

readily be inferred.”           Id. at 238.          Thus, “ambiguity as to the

defendant’s intent to waive venue should be interpreted in favor

of the defendant, in light of the constitutional underpinning of

the defendant’s right to proper venue.”                   Id. at 239.

       In   Stewart,    we   found      the     defendant     had    raised   a    venue

objection even though he did not file a written motion.                           Id. at

238.     During oral argument of Stewart’s co-defendant’s written

motion challenging venue, Stewart indicated “that he was in a

similar     position.”       Id.   at     239.       On    appeal,   the   government

acknowledged that it had understood he was challenging venue

and, accordingly, had argued venue was proper as to both Stewart

and the co-defendant.           Id.      This, we found, was sufficient to

permit the district court to rule on Stewart’s venue challenge

                                           18
and to preserve the issue for appeal.                    Id.        Based on this case,

Mallory argues he preserved the issue despite failing to move

formally to challenge venue.

     But, the facts in Stewart are easily distinguishable from

those     presented    by    Mallory.             First,    there          was    no    motion

regarding    venue     filed    by    any   defendant          in    the    case       at   bar,

whereas in Stewart there was.               But this, as noted above, is not

dispositive.         There     is    also   no     indication         that       either      the

government or the district court knew that Mallory was making a

venue challenge.         Thus, the district court was not presented

with an opportunity to rule upon any venue issue.                            Nevertheless,

Mallory invites us to infer from his Crawford arguments, and

questioning    concerning       the    FedEx       tracking         bill    and    the      Rule

902(11)    certificate,        that   he    raised       the    issue       of    where       the

charged     criminal     acts       occurred       and     thereby         made    a        venue

challenge.     We must decline the invitation.                         Simply put, the

inference is too tenuous.              Hence, we hold that this issue was

waived.     Accordingly, we need not reach the merits of Mallory’s

venue claim.



                                           VII.

     Finally, Mallory contends that the district court erred in

finding that the loss of the entire unpaid principal of mortgage

loans was reasonably foreseeable to him in light of the collapse

                                            19
of the housing market.                Mallory is unable to prevail on this

issue.

       In     a    fraud    case    such     as    this     one,   the     government        is

required to establish the amount of loss for sentencing purposes

by a preponderance of the evidence.                       United States v. Pierce,

409 F.3d 228, 234 (4th Cir. 2005).                         We review the amount of

loss, to the extent that it is a factual matter, for clear

error.        United States v. West, 2 F.3d 66, 71 (4th Cir. 1993).

This deferential standard of review allows reversal only if we

are “left with the definite and firm conviction that a mistake

has been committed.”               United States v. Stevenson, 396 F.3d 538,

542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S.

564, 573 (1985)) (internal quotation marks omitted).

       In sentencing for conspiracy to commit wire fraud and mail

fraud, the district court looks to U.S.S.G. § 2B1.1 and its

application         notes      to    calculate       the      loss    caused         by     the

defendant’s         criminal       conduct    and    then    increases         the   offense

level accordingly.             U.S.S.G. § 2B1.1.              This calculation is a

two-step process.            First, pursuant to Application Note 3(A)(i)

of     this       Guideline,       “‘[a]ctual       loss’     means      the    reasonably

foreseeable pecuniary harm that resulted from the offense.”                                 Id.

cmt. n.3(A)(i).            Second, the district court credits against the

loss    “the       amount    the    victim    has     recovered       at    the      time    of

sentencing         from     disposition      of     the     collateral,        or    if     the

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collateral    has      not    been    disposed     of    by    that   time,       the   fair

market value of the collateral at the time of sentencing.”                               Id.

cmt. n.3(E)(ii).

      Mallory takes issue with the second step of the district

court’s calculation because the court reduced the loss only by

the actual      amount       recovered    from     the    foreclosure        sales.      He

maintains that the district court should have, instead, applied

a larger set off amount because it was not foreseeable that the

housing   collapse        would      occur.       This,       according      to   Mallory,

caused the amount that the victims were able to recover to be

smaller than it otherwise would have been.

      In support of this argument, prior to sentencing, Mallory

submitted    to     the      district     court    affidavits         from    appraisers

stating what they thought the loss would have been but for the

housing     collapse      and       asserting     that    the     collapse        was   not

reasonably foreseeable.

      Although the district court noted at sentencing that the

sentence of 60 months’ imprisonment would be the same even if it

adopted     Mallory’s        loss     amount,     the     court    rightly        rejected

Mallory’s position.           Simply put, the first step in calculating

the loss has a foreseeability prong to it, but the second step

does not.     Accordingly, it is of no consequence that the housing

collapse was not reasonably foreseeable to Mallory.                          He receives

the   benefit     of    what      the    victims    recovered,         not    what      they

                                           21
foreseeably   might   have     recovered.      “To    accept    [Mallory’s]

argument would be to encourage would-be fraudsters to roll the

dice on the chips of others, assuming all of the upside benefit

and little of the downside risk.”           United States v. Turk, 626

F.3d 743, 750 (2d Cir. 2010).            Because we decline to provide

such encouragement, we reject Mallory’s argument.



                                  VIII.

     Wherefore,   for    the     reasons     stated    above,    Mallory’s

conviction and sentence are affirmed.

                                                                  AFFIRMED




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