                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4190


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JESSE J. HAMILTON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Mary G. Lewis, District Judge.
(8:12-cr-00703-MGL-4)


Submitted:   July 19, 2013                    Decided:    August 2, 2013


Before MOTZ and      DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Jesse J. Hamilton appeals his conviction and sentence

of twelve months and one day of imprisonment, imposed following

his guilty plea to conspiracy to commit mail fraud, in violation

of 18 U.S.C. § 1349 (2006).                   Hamilton’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating    that    there   are    no    meritorious           issues    for     review   but

questioning whether the district court (1) fully complied with

Fed. R. Crim. P. 11 in conducting Hamilton’s plea colloquy, and

(2) clearly erred in attributing to Hamilton a loss amount of

more     than    $5000   but     less    than        or   equal      to   $10,000        when

calculating his offense level under the Guidelines.                               Hamilton

was advised of his right to file a pro se supplemental brief but

has not done so.         The Government has declined to file a response

brief.    Finding no reversible error, we affirm.

               Counsel first questions the sufficiency of the plea

hearing conducted by the district court.                          Before accepting a

plea,    the    trial    court   must     conduct         a   colloquy     in    which    it

informs    the    defendant      of,    and       determines     that     the    defendant

comprehends, the nature of the charge to which he is pleading

guilty,    any    mandatory      minimum          penalty,     the     maximum    possible

penalty he faces, and the rights he is relinquishing by pleading

guilty.     Fed. R. Crim. P. 11(b); United States v. DeFusco, 949

F.2d 114, 116 (4th Cir. 1991).                    The court also must ensure that

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the    plea   is    voluntary,     supported       by     an     independent      factual

basis, and not the result of force, threats, or promises not

contained in the plea agreement.                       Fed. R. Crim. P. 11(b)(2),

(3).

              Because Hamilton did not seek to withdraw his plea in

the    district     court    or   timely    object       to    any    alleged    Rule    11

error, we review the plea colloquy for plain error.                                United

States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009).                                 To

establish plain error, Hamilton must show that (1) the district

court erred, (2) the error was plain, and (3) the error affects

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

732 (1993).         In the guilty plea context, an error affects a

defendant’s substantial rights if he demonstrates a reasonable

probability     that    he    would   not       have    pled    guilty    but    for    the

error.    Massenburg, 564 F.3d at 343.                  Even if these requirements

are met, we will exercise our discretion to correct such error

only if “the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”                       Olano, 507 U.S. at

732 (internal quotation marks and alteration omitted).

              Our   review    of    the     plea       hearing       reveals    that    the

district court substantially complied with Rule 11 in conducting

the plea colloquy and that any minor omissions by the court did

not affect Hamilton’s substantial rights.                      The available record

does not support Hamilton’s assertion that he did not comprehend

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the charge to which he pled.                     Thus, we conclude the district

court did not plainly err in finding Hamilton’s plea knowing and

voluntary.

            Counsel      next      questions          whether       the       district    court

erred in calculating the amount of loss attributed to Hamilton

to   establish        his     Guidelines          range.             Typically,          factual

determinations        made    during      sentencing          are    reviewed      for     clear

error.    United States v. Strieper, 666 F.3d 288, 292 (4th Cir.

2012).     However, because Hamilton did not object to the loss

calculation in the district court, we review the issue for plain

error.    Id.; see Olano, 507 U.S. at 732 (standard).

            When calculating a Guidelines range applicable to a

fraud    offense,      the    government         is    required          to    establish    the

amount of loss by a preponderance of the evidence.                                 See United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).                                     “[T]he

court need only make a reasonable estimate of the loss.”                                 United

States    v.    Cloud,       680    F.3d     396,       409    (4th       Cir.)     (internal

quotation marks omitted), cert. denied, 133 S. Ct. 218 (2012);

USSG § 2B1.1 cmt. n.3(C).                 Generally, “loss is the greater of

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

            A    defendant         seeking       to     challenge         the     presentence

report   “has    an    affirmative         duty    to    make       a    showing    that    the

information      in    the     presentence            report        is    unreliable,       and

articulate      the    reasons      why    the     facts       contained         therein    are

                                             4
untrue or inaccurate.”               United States v. Terry, 916 F.2d 157,

162 (4th Cir. 1990).               In the absence of objections “showing the

information        is   inaccurate,        the     court   is     free    to     adopt    the

findings      of    the   [presentence           report]    without       more    specific

inquiry     or     explanation.”             Id.      (internal         quotation      marks

omitted); see Fed. R. Crim. P. 32(i)(3)(A) (recognizing that, at

sentencing, district court “may accept any undisputed portion of

the presentence report as a finding of fact”).

            Here,       the    court’s      loss    calculation         was    based     on   a

stipulation between the parties proffered during the sentencing

hearing.      Because Hamilton concurred in the Government’s request

for    an   amendment          to    the    Guidelines       range        adopting       this

stipulation, any sentencing error based on the application of

this   loss      amount       is    not    properly      before    us.         See     United

States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) (“[A] court

cannot be asked by counsel to take a step in a case and later be

convicted of error, because it has complied with such request.”

(internal     quotation        marks      omitted)).       In     any    event,      because

Hamilton did not object to the loss calculations provided in the

presentence        report,         the    court    was     free    to      accept      these

calculations in imposing Hamilton’s sentence.                        Given that these

original loss calculations established a much higher Guidelines

range than that derived from the parties’ agreement, any error



                                              5
in accepting the lower, agreed-upon calculation did not affect

Hamilton’s substantial rights.          See Cloud, 680 F.3d at 411.

            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.                        This court

requires that counsel inform Hamilton, in writing, of the right

to petition the Supreme Court of the United States for further

review.     If Hamilton 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 Hamilton.

            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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