                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4055
JAMES H. MASON,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Rock Hill.
           Joseph F. Anderson, Jr., Chief District Judge.
                             (CR-99-231)

                      Argued: January 25, 2002

                       Decided: June 3, 2002

Before WILKINSON, Chief Judge, and WILKINS and MICHAEL,
                     Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Katherine Elaine Evatt, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. Eric William
Ruschky, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee. ON BRIEF: Scott N. Schools, United States Attor-
ney, Columbia, South Carolina, for Appellee.
2                      UNITED STATES v. MASON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   James H. Mason was tried and convicted by a jury on one count
of wire fraud in violation of 18 U.S.C. § 1343. The jury found that
Mason and his co-defendant, William Carlton Lawson, had devised
a scheme to defraud Gibbs Special Assets (GSA) by inducing GSA
to wire them $768,150 in payment for 2,430 bales of cotton that
Mason’s company (Performance Cotton Co.) had supposedly pur-
chased from Lawson’s company (Cochran Bonded Warehouse).
Mason appeals his conviction primarily on the grounds that there was
insufficient evidence to support the jury’s verdict and that the govern-
ment’s evidence at trial constructively amended the indictment,
thereby violating his Fifth Amendment rights. Mason also argues that
the district court abused its discretion in denying his motion for a new
trial and in ordering him to pay $30,000 in restitution. Finding no
error in the district court’s handling of the case, we affirm.

                                   I.

   The facts relevant to Mason’s wire fraud conviction (Count One of
the indictment) are as follows. Mason was a cotton broker in Fort
Mill, South Carolina, who did business as Performance Cotton Co.
(Performance). In the summer of 1994 Mason’s friend, Glen Reid,
negotiated a business agreement between Performance and Jimmy I.
Gibbs, a wealthy businessman from Spartanburg, South Carolina,
who was the sole owner of Gibbs Special Assets, Inc. (GSA). Though
the details of this agreement changed over time and were the subject
of some dispute at trial, the essential thrust was that Performance
arranged transactions between cotton suppliers and textile mills and
GSA financed these transactions. Reid earned commissions paid by
Performance for each transaction financed by GSA. Reid never told
Gibbs that Mason was the owner of Performance. Instead, Reid spoke
of Performance as being run by Mike Campbell, Mason’s brother-in-
law and Performance’s sole employee.
                        UNITED STATES v. MASON                           3
   Initially, Gibbs financed only 90-bale truckloads of cotton and
received $500 profit per truckload in return for his investment. Reid
and Gibbs testified that Performance would arrange contracts to sell
cotton to textile mills at specified prices and would then locate cotton
that it could buy at specified prices to fulfill these contracts. Reid then
presented Gibbs with the terms of the proposed transactions, and
Gibbs decided on a case-by-case basis whether to finance the transac-
tions. If Gibbs chose to go forward with a proposed transaction, he
would pay the cotton suppliers directly, and the textile mills would
send payment to Gibbs after receiving delivery of their cotton from
Performance. Gibbs would then deduct his cost of purchasing the cot-
ton plus $500 and would forward the remaining money to Perfor-
mance. Gibbs testified that the cotton shipped to mills by
Performance belonged to him because he was the person who had
paid for it.

   In a September 1994 meeting, Reid, Gibbs, and Bob Ollis (an exec-
utive who was in charge of monitoring the cotton deals for Gibbs) dis-
cussed the idea of expanding the relationship between GSA and
Performance to include the financing of larger cotton transactions (by
the pound rather than by the truckload). The discussions of this meet-
ing were memorialized in a working agreement dated September 16,
1994. The working agreement provided that GSA would establish a
$1 million line of credit in favor of Performance "for the purpose of
purchasing and hedging cotton." Nine hundred thousand dollars of
this money was to be used for purchasing cotton on the open market,
and $100,000 was to be used for hedging cotton positions taken by
Performance. Performance was to market cotton to buyers (textile
mills) with a targeted profit margin of at least $0.04 per pound of cot-
ton sold. The profits on cotton transactions completed under the terms
of the working agreement were to be split equally between Perfor-
mance and GSA. Although all the trial testimony indicated that Per-
formance and GSA began doing business on a larger scale after the
September meeting and that profits were to be split equally between
them, the working agreement was never signed, and Mason and the
government disagree about the extent to which other aspects of the
agreement were put into practice. Mason contends that the working
agreement gave Performance substantial autonomy in arranging cot-
ton transactions and that the $1 million line of credit referred to in the
working agreement was essentially a loan from GSA to Performance.
4                      UNITED STATES v. MASON
In support of his contention, Mason points out that GSA deposited
$100,000 into a commodities trading account on September 21, 1994,
and that Reid was given authority to trade on that account. Mason
argues that the commodities trading account was intended to be used
for hedging cotton positions taken by Performance, though it is undis-
puted that Reid used his trading authority to speculate in cotton
futures unrelated to his work with Performance and that Reid lost
most of the money that Gibbs had put into the trading account. In
addition, Bob Ollis testified that the portion of the working agreement
regarding the $1 million line of credit in favor of Performance was
put into practice. The government, in contrast, points to testimony
from Gibbs that those portions of the working agreement regarding a
line of credit and the hedging of cotton positions were never put into
practice. Gibbs claimed that although the scale of the transactions was
to be larger after September 1994, the basic terms of the working rela-
tionship between Performance and GSA remained unchanged.
According to Gibbs, Performance still had to arrange to buy and sell
cotton at specified prices and was required to present the terms of pro-
posed transactions to Gibbs so that he could determine his profit mar-
gin before agreeing to finance a particular transaction. Gibbs also
testified that after the September 1994 meeting, he continued to pay
the cotton suppliers directly and that he still considered himself the
owner of the cotton that Performance sold and delivered to textile
mills.

   The transaction that ultimately led to Mason’s conviction is
referred to as Deal 104 in GSA’s records. It took place in November
1994. Mason’s friend and co-defendant, William Lawson, was a
Georgia cotton dealer who ran a company called Southern Cotton Co.
in Cochran, Georgia. Lawson helped to negotiate a series of contracts
calling for the sale and delivery of 9,000 bales of cotton from Perfor-
mance to Avondale Mills in Sylacauga, Alabama, over a period of 10
months beginning in early 1995. Mike Campbell signed the contracts
as the agent for Performance on November 21, 1994. According to
Lawson, on that same day Mason called him and said that he had
$768,000 available to buy cotton from Lawson for use in fulfilling the
Avondale Mills contracts. Mason told Lawson that the person financ-
ing the deal (Gibbs) wanted to buy his cotton from a bonded ware-
house rather than from Southern Cotton Co. Lawson and Mason then
agreed that the cotton sale would be processed through a business
                        UNITED STATES v. MASON                           5
Lawson had once operated under the name "Cochran Bonded Ware-
house." It is undisputed that Cochran Bonded Warehouse was not an
active business in November 1994 and that there was in fact no cotton
available for sale in the Cochran Bonded Warehouse. Lawson agreed
to draw up an invoice billing Performance for the purchase of 2,340
bales of cotton from Cochran Bonded Warehouse for $768,150.00.
Mike Campbell signed the invoice as "accepted" on behalf of Perfor-
mance on November 22, 1994. On November 25, 1994, Lawson faxed
this invoice to GSA along with a cover letter from Mike Campbell
that said: "Vendor invoices for 2,430 bales purchased provisionally to
begin deliveries against these [Avondale Mills] contracts. Please wire
transfer $768,150 to cover cost of cotton." (As we explain below, the
November 25 fax became the critical piece of evidence in the govern-
ment’s case against Mason.) Gibbs approved the deal and wired the
money to Lawson as requested. Lawson testified that although there
was no cotton available for sale in the Cochran Bonded Warehouse
when he sent the fax to GSA, he had "cotton on [his] desk to buy,"
and he intended to buy cotton as needed for Performance to fulfill the
Avondale Mills contracts. Lawson admitted, however, that not all of
the $768,150 he received from GSA was used to buy cotton for sale
to Avondale Mills. On November 10 Lawson and Mason had reached
an agreement on a side venture involving the cleaning of cotton motes.1
Under the terms of this agreement Lawson was to reopen a cotton
cleaning business called AmeriCott that he had previously operated
in Spartanburg. Mason was to pay AmeriCott eight cents per pound
for cleaning cotton motes and was to share profits from the sale of the
cleaned motes with Lawson. According to Lawson, Mason authorized
Lawson to use some of the $768,150 he had received from Gibbs to
get the AmeriCott venture started. Apparently Lawson and Mason
planned to use their profits from the AmeriCott venture to buy cotton
to fulfill the Avondale Mills contracts as deliveries became due.

  Ultimately, Performance supplied Avondale Mills with some but
not all of the cotton Performance had contracted to deliver in the first
  1
    Cotton motes are byproducts of the cotton ginning process that con-
tain significant amounts of cotton fiber mixed in with "trash" (non-
useable material). The motes can be recleaned in order to isolate the cot-
ton fibers, and the cleaned motes can then be used in a variety of applica-
tions.
6                       UNITED STATES v. MASON
months of 1995. By March 1995 Gibbs had received about $641,000
from Avondale Mills rather than the $768,150 plus profits that he had
been expecting. Gibbs suspected that there were problems at Perfor-
mance; upon reviewing his accounts receivable, he determined that
Performance owed him in excess of $1 million from various cotton
deals.2 Gibbs met with Reid on March 23, 1995. He learned for the
first time at this meeting that Mason was the owner of Performance.
Gibbs testified that he would never have done business with Perfor-
mance if he had known that Mason was involved because he had
known Mason "for a lot of years and knew of his past reputation."
GSA filed a civil lawsuit against Performance, Mason, Reid, Camp-
bell, and Lawson the next day. Ultimately, the parties reached a settle-
ment agreement under which Mason transferred to Gibbs a total of
$370,690.14 in cash, assigned claims, and cotton inventory. In addi-
tion, Lawson agreed to pay Gibbs $150,000.

   On March 3, 1999, the United States indicted Mason and Lawson
for wire fraud in connection with Deal 104 in the District of South
Carolina. Mason was also indicted on two counts of mail fraud. Law-
son pled guilty, but Mason elected to stand trial. The jury found
Mason guilty of wire fraud, but acquitted him on the two counts of
mail fraud. Mason was sentenced to 18 months in prison, three years
of supervised release, and 200 hours of community service. He was
also ordered to pay $30,000 in restitution. Mason now appeals.

                                   II.

                                   A.

   Mason first argues that the district court erred by refusing to grant
his motion for judgment of acquittal under Fed. R. Crim. P. 29
because the evidence did not adequately support his wire fraud con-
viction. In evaluating the sufficiency of the evidence, we do not
assess the credibility of the witnesses, and we assume that the jury has
    2
   It appears that Mason was undone by a rapid rise in the price of cotton
in early 1995. Because Performance had not hedged its contracts with
Avondale Mills, it soon found itself having to pay more for each bale of
cotton it delivered than Avondale was required to pay. Losses mounted,
and eventually Performance stopped delivering cotton altogether.
                       UNITED STATES v. MASON                         7
resolved all contradictions in favor of the government. United States
v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).

   Wire fraud under 18 U.S.C. § 1343 requires proof of "(1) a scheme
to defraud and (2) the use of a wire communication in furtherance of
that scheme." United States v. ReBrook, 58 F.3d 961, 966 (4th Cir.
1995) (internal quotation marks and citation omitted).3 The scheme to
defraud must involve material misrepresentations, Neder v. United
States, 527 U.S. 1, 25 (1999), and the defendant must have acted with
fraudulent intent, United States v. Ham, 998 F.2d 1247, 1254 (4th Cir.
1993). The wire fraud indictment against Mason and Lawson listed
two fraudulent misrepresentations made by them in furtherance of
their scheme to defraud. The government concedes that it failed to
prove the misrepresentation alleged in paragraph 2 of Count One of
the indictment.4 The government’s case therefore stands or falls on
the allegation in paragraph 3 of Count One that Mason and Lawson
"did falsely represent to Gibbs Special Assets, Inc., that Performance
Cotton Company had purchased 2,430 bales of cotton from Cochran
Bonded Warehouse for $768,150.00." In other words, the govern-
ment’s case depends on whether the invoice faxed to GSA on Novem-
ber 25, 1994, contained at least one fraudulent, material
misrepresentation.

  Mason argues that the fax represented only that Performance had
entered into a contract to purchase cotton from Cochran Bonded
  3
   18 U.S.C. § 1343 provides in relevant part:
      Whoever, having devised or intending to devise any scheme or
      artifice to defraud, or for obtaining money or property by means
      of false or fraudulent pretenses, representations, or promises,
      transmits or causes to be transmitted by means of wire, radio, or
      television communication in interstate or foreign commerce, any
      writings, signs, signals, pictures, or sounds for the purpose of
      executing such scheme or artifice, shall be fined under this title
      or imprisoned not more than five years, or both.
   4
     Paragraph 2 alleged that Mason had concealed from Gibbs that Mason
was a partner in PCC Cotton Purchasing LP, another company run by
Mason. Because PCC Cotton Purchasing LP had nothing to do with Deal
104, the government concedes that "there was insufficient evidence of
this aspect of the scheme to defraud." Brief of United States at 18.
8                      UNITED STATES v. MASON
Warehouse for sale to Avondale Mills. According to Mason, all the
evidence at trial indicated that this representation was true. Lawson
testified that when he sent the fax, he and Mason had every intention
of fulfilling the contract by shipping cotton to Avondale Mills.5
Because there was a genuine agreement for Performance to buy cot-
ton from Cochran Bonded Warehouse and sell it to Avondale Mills,
Mason argues that there are no misrepresentations in the November
25 fax and that his conviction must be reversed because the evidence
was not sufficient to support the jury’s verdict. Assuming for the sake
of argument that no reasonable jury could doubt Lawson’s claim that
he and Mason intended to fulfill the contract faxed to GSA, Mason’s
Rule 29 challenge still fails because a reasonable jury could find that
the fax contains other material misrepresentations that were made
with fraudulent intent. First, and most obviously, the fax represented
that Performance would purchase cotton from Cochran Bonded Ware-
house, a defunct company that Lawson and Mason used to deceive
Gibbs about the ultimate source of the cotton. A reasonable jury could
find that this misrepresentation was material because the jury heard
testimony that Gibbs wished to deal only with bonded warehouses.
Second, the fax surely made an implied representation that any money
wired by GSA would be used by Performance exclusively to buy cot-
ton for delivery to Avondale Mills. Cf. Linden v. United States, 254
F.2d 560, 568 (4th Cir. 1958) ("Deception [in a mail fraud case] is not
necessarily confined to a direct statement of fact. Not words alone,
but their arrangement, the manner of their display, and the circum-
stances in which they are used, may create an appearance which is
false and deceptive, even though the words themselves fall short of
this."). Yet Lawson testified that he and Mason intended to divert, and
did divert, a substantial portion of that money into their AmeriCott
mote cleaning venture. A reasonable jury could also find this misrep-
    5
   Lawson had signed an affidavit in the course of the civil suit brought
by GSA stating that at the time the fax was sent, he "did not intend to
purchase the cotton." In other words, Lawson appeared to claim that the
entire contract between Performance and Cochran Bonded Warehouse
was a sham and that Mason and Lawson never intended for any of the
money to be used to buy cotton in fulfillment of the contracts with Avon-
dale Mills. During trial, however, Lawson testified that he and Mason
had always intended to perform the Avondale Mills contracts and to
repay Gibbs.
                       UNITED STATES v. MASON                          9
resentation to be material, for it seems highly doubtful that Gibbs
would have approved the wire transfer had he known that Mason and
Lawson would treat the funds as an interest-free loan for their Ameri-
Cott venture. Finally, a reasonable jury that interpreted the fax in the
light of Gibbs’s testimony about the business relationship between
GSA and Performance could read the fax as a fraudulent representa-
tion that there were 2,430 bales of cotton sitting in Cochran Bonded
Warehouse and that these bales would belong to GSA as soon as
Lawson received the wire transfer. A jury could also reasonably find
that this representation was material because Gibbs testified that he
wanted to take immediate possession of all the cotton he bought for
future sale so that he might be protected from price fluctuations in the
cotton market. Accordingly, we conclude that the government pres-
ented sufficient evidence to support the jury’s verdict that Mason
engaged in a scheme to defraud GSA.

                                   B.

   Next, Mason argues that his conviction must be reversed because
of a fatal variance between the allegations of the wire fraud count
(Count One) and the government’s evidence at trial. "When the gov-
ernment, through its presentation of evidence and/or its argument . . .
broadens the bases of conviction beyond those charged in the indict-
ment, a constructive amendment — sometimes referred to as a fatal
variance — occurs." United States v. Randall, 171 F.3d 195, 203 (4th
Cir. 1999). A constructive amendment or fatal variance violates the
Fifth Amendment right to be indicted by a grand jury and is per se
error. Id. Not every difference between the indictment and the trial
evidence results in a fatal variance, however. The test is whether the
evidence presented at trial "change[s] the elements of the offense
charged, such that the defendant is actually convicted of a crime other
than that charged in the indictment." Id. (internal quotation marks and
citations omitted). When the trial evidence does not alter the crime
charged in the indictment, a mere variance occurs, and the defen-
dant’s constitutional rights are not violated unless the variance "preju-
dices the defendant either by surprising him at trial and hindering the
preparation of his defense, or by exposing him to the danger of a sec-
ond prosecution for the same offense." Id.

   Here, Mason claims that the government constructively amended
the wire fraud count by arguing to the jury that the November 25 fax
10                      UNITED STATES v. MASON
falsely represented to GSA that there was cotton in Cochran Bonded
Warehouse. According to Mason, this "no cotton in the warehouse"
theory offered the jury a possible basis on which to convict Mason
that was never authorized by the grand jury. Mason points out that
paragraph 3 of the wire fraud count said only that Mason falsely rep-
resented that Performance "had purchased 2,340 bales of cotton from
Cochran Bonded Warehouse," and he argues that this theory of fraud
cannot encompass the government’s "no cotton in the warehouse" the-
ory. Mason’s argument turns, then, on whether paragraph 3 of Count
One commits the government to a specific theory of the fraudulent
scheme that excludes the "no cotton in the warehouse" theory. We
hold that it does not. While Mason plausibly contends that the indict-
ment is most naturally read to claim that the November 25 fax falsely
represented the existence of a contract between Performance and
Cochran Bonded Warehouse, the language of the indictment is gen-
eral enough to encompass the government’s "no cotton in the ware-
house" theory. We cannot say that the difference between a false
representation of an agreement to buy cotton and a false representa-
tion that the seller had cotton on hand for purchase is great enough
"to change the elements of the crime charged." Randall, 171 F.3d at
203. Cf. 3 Charles Alan Wright, Federal Practice and Procedure:
Criminal § 516 at 27 (2d ed. 1982) (stating that courts have found a
constructive amendment where "the prosecution presents a complex
of facts distinctly different from that set forth in the charging instru-
ment and not . . . where there is a single set of facts"). If there is any
variance here at all, it is a mere variance that would violate Mason’s
constitutional rights only if it unfairly surprised Mason and hindered
his ability to prepare for trial or exposed him to the danger of a sec-
ond prosecution for the same offense. Randall, 171 F.3d at 203. Here,
the indictment adequately informed Mason that the November 25 fax
would be at the center of the government’s case, and Mason had
ample opportunity to prepare a defense against the government’s "no
cotton in the warehouse" theory. Nor is there any risk of a second
prosecution arising out of the misrepresentations contained in the
November 25 fax. As a result, we hold that any mere variance
between paragraph 3 of the wire fraud count and the government’s
evidence at trial does not require reversal.

                                   C.

  Mason also argues that the district court abused its discretion in
denying his motion for a new trial under Fed. R. Crim. P. 33. In
                       UNITED STATES v. MASON                         11
essence, Mason contends that a new trial is warranted in the interests
of justice because Gibbs’s testimony was so lacking in credibility that
the jury’s verdict was against the great weight of the evidence.
Although we agree that some of Gibbs’s testimony was open to chal-
lenge, the district court’s refusal to grant a new trial was well within
the scope of its discretion.

                                   D.

   Finally, Mason appeals two aspects of the district court’s sentenc-
ing determination. He argues that the district court erred in determin-
ing the actual loss suffered by GSA for purposes of determining
Mason’s offense level and by ordering Mason to pay $30,000 in resti-
tution. We review the district court’s legal interpretations of the Sen-
tencing Guidelines de novo and its factual findings for clear error.
United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).

   The base offense level for a fraud conviction is six. U.S.S.G.
§ 2F1.1(a). The district court ruled that the actual loss caused by
Mason’s wire fraud was $126,817.39 — the difference between the
$768,150.00 Gibbs wired to Lawson and Mason and the $641,332.61
Gibbs received in payments from Avondale Mills. The court therefore
increased Mason’s offense level by seven pursuant to U.S.S.G.
§ 2F1.1(b)(1)(H), resulting in a total offense level of thirteen. Appli-
cation note 8(b) to U.S.S.G. § 2F1.1 states that in "fraudulent loan
application cases and contract procurement cases, the loss is the
actual loss to the victim." Relying on this application note, Mason
argues that because he had already paid Gibbs more than $370,000 to
settle the civil suit Gibbs had filed against him, the district court
should have ruled that Gibbs’s actual loss from Deal 104 was zero.
We are unpersuaded. The Guidelines provide offense level adjust-
ments for the amount of loss caused by criminal fraud so that the pun-
ishment might mirror the seriousness of the crime. According to
application note 8(b), the seriousness of the fraud in cases of fraudu-
lent loan application and fraudulent contract procurement cases is
normally a function of either the intended or the actual loss to the vic-
tim, whichever amount is greater. Thus, to the extent that note 8(b)
applies to this case, the district court acknowledged its force by using
Gibbs’s actual loss on Deal 104 (rather than the $768,150.00 Gibbs
wired to Lawson and Mason) to determine Mason’s offense level.
12                     UNITED STATES v. MASON
Mason would have us go further by reducing the loss amount to zero
based on settlement payments made by Mason to Gibbs after his fraud
had been discovered. This cannot be correct because these payments
simply have nothing to do with the seriousness of Mason’s fraudulent
conduct. As the district court observed during the sentencing hearing,
Mason’s argument would appear to suggest that "if somebody robs a
bank and pays all the money back before trial or before sentencing . . .
the guidelines [would set] the offense level for bank robbery [at] a
zero loss." Cf. United States v. Schneider, 930 F.2d 555, 559 (7th Cir.
1991) (observing that from a legal perspective, a victim’s loss would
not be reduced "if a pickpocket got cold feet and returned his victim’s
wallet before the victim discovered it had been missing"). We agree
with the district court that application note 8(b) does not support
Mason’s argument. We therefore affirm the district court’s determina-
tion that the actual loss to Gibbs for purposes of determining Mason’s
offense level was $126,817.39.

   Mason also challenges the district court’s order that he pay $30,000
in restitution to GSA. We review restitution orders for abuse of dis-
cretion. United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996).
Again, Mason argues that his settlement payments to Gibbs exceeded
the actual loss from Deal 104 ($126,817.39) and that any restitution
ordered by the district court was a windfall to Gibbs. The argument
finds apparent support in 18 U.S.C. § 3664(j)(2), which provides that
"[a]ny amount paid to a victim under an order of restitution shall be
reduced by any amount later recovered as compensatory damages for
the same loss by the victim" in any federal or state civil proceeding.
Although Mason’s settlement payments to Gibbs occurred before
rather than after the restitution order, the logic of the statute surely
implies that restitution is not warranted when the victim has already
been fully compensated for his loss. The critical question here, how-
ever, is whether Mason’s settlement payments to Gibbs covered the
"same loss" that Gibbs suffered from Deal 104. The government pres-
ented evidence that Gibbs lost close to $1 million on various transac-
tions with Performance, that the settlement agreement did not
compensate Gibbs for all of his actual losses on these transactions,
and that the settlement agreement did not assign losses to particular
transactions. Accepting this evidence, the district court reasoned that
Mason had already paid Gibbs roughly $370,000 — 37% of the $1
million Gibbs lost in his dealings with Performance. The court essen-
                       UNITED STATES v. MASON                        13
tially apportioned the payments already made by Mason among the
various transactions between Performance and GSA and credited
Mason with having compensated Gibbs for 37% of Gibbs’s losses
from Deal 104. The court therefore determined that the actual loss to
Gibbs for purposes of Mason’s restitution order was roughly $80,000
(approximately 63% of $126,817.39). Upon consideration of Mason’s
financial resources, financial needs, and earning ability, the district
court then reduced the amount of restitution to $30,000. The court
found that upon his release from prison, Mason would have the earn-
ing capacity to pay this amount in equal monthly installments over a
three year period without burdening himself or his dependents. The
district court did not abuse its discretion in reaching this conclusion,
and the court’s restitution order is therefore affirmed.

                                  III.

   For the foregoing reasons, we conclude that Mason’s conviction
and sentence are free from error. Accordingly, the judgment of the
district court is

                                                          AFFIRMED.
