                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2973
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Northern District of Iowa.
                                        *
Randy Lee McClean,                      *      [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 11, 2001

                                  Filed: October 10, 2001
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

      Randy McClean, a manufactured-home dealer, was charged with three counts
of wire fraud. See 18 U.S.C. § 1343 (1994). A jury convicted McClean of two of the
counts and the District Court1 sentenced McClean to serve concurrent twenty-seven
month sentences, to make restitution, and to pay a special assessment. On appeal,
McClean raises issues regarding the sufficiency of the evidence, the determination of


      1
      The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa.
loss, and his sentence. Having reviewed the record and the arguments of both parties,
we reject McClean's arguments and affirm the District Court.

       McClean argues that the government did not introduce sufficient evidence of
his intent to commit wire fraud. When addressing a sufficiency-of-the-evidence
claim, we review the evidence in the light most favorable to the verdict and reverse
only if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt. United States v. Rounsavall, 115 F.3d 561, 565 (8th Cir.), cert. denied, 522
U.S. 903 (1997). The government's evidence showed that McClean admitted that he
deceived interested business associates with false statements made by telephone and
facsimile and that McClean knew that he put these associates at financial risk.
Although McClean stated that he intended to repay the parties in his business
transactions who suffered losses and that he intended no harm, the jury was free to
disbelieve him. See United States v. Ervasti, 201 F.3d 1029, 1037 (8th Cir. 2000).
We hold the evidence was sufficient for a reasonable jury to find guilt.

       With regard to his sentence, McClean argues that the District Court erred in
determining the amount of the monetary loss he caused. We review the District
Court's interpretation and application of the sentencing guidelines de novo and the
District Court's factual findings for clear error. United States v. Oligmueller, 198
F.3d 669, 671 (8th Cir. 1999). The District Court calculated the loss caused by
McClean by examining the losses incurred by two victims of his fraud—a building
supply company (Wick Building Systems) and a bank (Green Tree Financial
Corporation). These losses included unpaid loan guaranties and unpaid
reimbursement for home sales. Sentencing McClean in accordance with U.S.S.G.
§ 2F1.1, the District Court found—relying on the presentence investigation report and
evidence at the sentencing hearing—that the amount of loss was in the range of
$500,000 to $800,000. The District Court's finding is supported by the record and is
not clearly erroneous.



                                        -2-
      Finally, McClean argues that his twenty-seven month sentence violates the
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). We note
that Apprendi dealt with a non-jury factual determination that was used as a basis for
a sentence in excess of the statutory maximum sentence. Id. at 491-95. Because
McClean's sentence was less than the statutory maximum for wire fraud (five years),
Apprendi does not apply. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-
34 (8th Cir.), cert. denied, 531 U.S. 1026 (2000).2

      Accordingly, we affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        We note that the Appellee cited an unpublished opinion in its brief. The
citation was appropriate when it was offered, because at that time Anastasoff, which
proved to be short-lived, was the law of the Circuit. See Anastasoff v. United States,
223 F.3d 898 (8th Cir.), vacated as moot, Anastasoff v. United States, 235 F.3d 1054
(8th Cir. 2000) (en banc). We note the Rules of the Eighth Circuit currently bar the
citation of unpublished opinions. See 8th Cir. R. 28A(i).

                                         -3-
