                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4963


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ROBIN NEIL SNYDER; MORTGAGE BANKERS, LTD.,

                  Defendants - Appellants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:07-cr-00155-CCB-1)


Submitted:    January 22, 2010              Decided:   February 18, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan A. Gladstone, Annapolis, Maryland, for Appellant Robin
Neil Snyder. Rod J. Rosenstein, United States Attorney, Martin
J. Clarke, Michael J. Leotta, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Robin Neil Snyder and Mortgage Bankers, Ltd., appeal

the convictions on thirteen counts of wire fraud and aiding and

abetting   such   fraud,     in    violation    of   18   U.S.C.A.    §§ 1343,   2

(West 2000 & Supp. 2009), one count of money laundering and

aiding   and   abetting     such    conduct,    in   violation   of    18    U.S.C.

§§ 1956(a)(1), 2 (2006), and one count of obstruction of justice

and aiding and abetting such conduct, in violation of 18 U.S.C.

§§ 1512(c)(2), 2 (2006).           Snyder claims the district court erred

in joining Counts Eighteen and Nineteen with the other counts

and not granting his motion to sever.                 He further claims the

court abused its discretion in denying his motion for a new

trial and the court clearly erred in determining for sentencing

purposes the amount of actual and intended loss.                      Finding no

error, we affirm.

           Rule 8(a) of the Federal Rules of Criminal Procedure

provides that two or more offenses may be charged in the same

indictment     when   the    offenses    “are    of    the   same     or    similar

character or are based on the same act or transaction or on two

or more acts or transactions connected together or constituting

parts of a common scheme or plan.”              This court reviews de novo

the district court’s refusal to grant a misjoinder motion to

determine whether the initial joinder of the offenses was proper

under Rule 8(a).       United States v. Mackins, 315 F.3d 399, 412

                                        2
(4th Cir. 2003).          If joinder was proper, review of the denial of

a motion to sever is for abuse of discretion under Fed. R. Crim.

P. 14.     Id.     If joinder was improper, the court “review[s] this

nonconstitutional error for harmlessness, and reverse[s] unless

the   misjoinder      resulted          in      no    ‘actual        prejudice’      to    the

defendants ‘because it had [no] substantial and injurious effect

or influence in determining the jury’s verdict.’”                            Mackins, 315

F.3d at 412        (quoting United States v. Lane, 474 U.S. 438, 449

(1986) (first and second alteration added)).

            Because        of     the      prospect          of   duplicating        witness

testimony,       impaneling        additional          jurors      or    wasting     limited

judicial     resources,          joinder        is    the     rule      rather     than    the

exception.       United States v. Hawkins, 589 F.3d 694, __, 2009 WL

4906678,    *5     (4th    Cir.     2009).            Joinder     of    multiple     charges

involving    the    same     statute       is       “unremarkable”.         Id.,    2009    WL

4906678, *7 (citing United States v. Acker, 52 F.3d 509, 514

(4th Cir. 1995) (courts routinely allow joinder of bank robbery

charges    against    the        same   defendant)).              Joinder   on     unrelated

charges, however, raises the prospect that the Defendant may be

convicted based upon considerations other than the facts of the

charged offense.          Id., 2009 WL 4906678, *5.

            We     find     no    error      in      joining      Counts    Eighteen       and

Nineteen with the other counts.                     Count Eighteen was of a same or

similar    character       as     the   other         wire    fraud     charges.          Count

                                                3
Nineteen was part of the same transaction as Count Eighteen.

See United States v. Carmichael, 685 F.2d 903, 910 (4th Cir.

1982).        Snyder failed to show he was clearly prejudiced as a

result of joining the charges and not granting his motion to

sever.

               The district court may grant a motion for a new trial

based on newly discovered evidence if:

       (a) the evidence must be, in fact, newly discovered,
       i.e., discovered since the trial; (b) facts must be
       alleged from which the court may infer diligence on
       the part of the movant; (c) the evidence relied on
       must not be merely cumulative or impeaching; (d) it
       must be material to the issues involved; and (e) it
       must be such, and of such nature, as that, on a new
       trial, the newly discovered evidence would probably
       produce an acquittal.

United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989).

This court has never allowed a new trial unless all five factors

are established.           United States v. Fulcher, 250 F.3d 244, 249

(4th Cir. 2001).           We review the denial of a motion for a new

trial    based       on    newly   discovered       evidence      for     abuse   of

discretion.         United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006).        We find no clear error with respect to the district

court’s finding that the newly discovered evidence was primarily

for impeachment purposes, not typically a basis for a motion for

a new trial, and that the evidence did not support a finding

that    had    it   been   presented   at   trial    it   would    have    probably

produced an acquittal.

                                        4
            The Sentencing 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      § 2B1.1    cmt.          n.3(A)   (2008).     In    this   instance,

Snyder’s base offense level was increased by fourteen because it

was found that the amount of intended and actual loss was in

excess of $400,000.        See USSG § 2B1.1(b)(1)(H).

            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.             Actual loss is the

value of the property taken by the Defendant from the victims.

See Loayza, 107 F.3d at 265.                “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.

                                              5
           We find no error with respect to the district court’s

findings regarding actual or intended loss.              Both figures were

supported by a preponderance of the evidence.

           Accordingly, we affirm the convictions and sentence.

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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