                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 14, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-21213
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DUDLEY EARL MYERS,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. H-03-CR-123-ALL
                       --------------------

Before JOLLY, HIGGINBOTHAM and PICKERING, Circuit Judges.

PER CURIAM:*

     Dudley Earl Myers appeals following his guilty-plea

conviction for bank fraud in violation of 18 U.S.C. §§ 1344 and

2.   Myers argues that the district court erroneously calculated

his criminal history score, improperly applied a sentence

enhancement for more than one victim, and improperly advised him

about his right to appeal.   In his plea agreement Myers waived

his right to appeal with the exception of appealing an upward

departure from the Sentencing Guidelines and the calculation of


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 03-21213
                                 -2-

"intended loss" under the Guidelines.      We conclude from the

record that Myers's waiver was knowingly and intelligently made,

and we do not address his waived guidelines arguments.      See

United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994); FED.

R. CRIM. P. 11(b)(1)(N).

     Myers also argues that his plea was induced by a

representation from the Government that the amount of loss for

relevant conduct would be limited to $58,547.79.      Because Myers

did not object on this ground in the district court, review is

for plain error.    United States v. Brown, 328 F.3d 787, 790 (5th

Cir. 2003).    Myers has not met his burden of showing that the

Government made such a promise or breached the plea agreement.

United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).

Myers's statement at the rearraignment that no promises other

than those in the plea agreement were made to him is presumed to

be truthful.    Blackledge v. Allison, 431 U.S. 63, 74 (1977).

     Myers next argues that the calculation of the intended loss

under relevant conduct was erroneous because he should not have

been responsible for the entire amount of the checks deposited by

others and the actual loss was less than the total amount of the

checks.   The face value of stolen and forged checks is properly

used as the intended loss because that is the amount at risk,

even if the bank did not lose the full value.      United States v.

Wimbish, 980 F.2d 312, 316 (5th Cir. 1992), abrogated on other

grounds, Stinson v. United States, 508 U.S. 36, 40 (1993).
                            No. 03-21213
                                 -3-

     Although Myers claimed he was not involved in transactions

of checks that did not come from Oregon, the court found that the

evidence was overwhelming that Myers was the leader of the scheme

and as involved in the activities of all the conspirators.    The

evidence in the PSR showed that Myers recruited the other

participants in the scheme.    Myers presented no evidence to rebut

the PSR’s information, other than his own denial of involvement

with all the fraudulent checks.    The district court found Myers’

denial to be incredible.    We conclude that the district court did

not clearly err in its determination of the intended loss or

Myers's relevant conduct.     United States v. Morrow, 177 F.3d 272,

301-02 (5th Cir. 1999); U.S.S.G. § 1B1.3.

     Myers argues in his reply brief that his relevant conduct

should be limited to the amount of the single check at issue in

the count to which he pleaded guilty, that the federal sentencing

guidelines are unconstitutional, that his indictment failed to

charge that he was a leader/organizer, and that due process was

violated because facts used to increase his offense level were

not submitted to a jury and proven beyond a reasonable doubt.

Myers relies on the Supreme Court's recent decision in Blakely v.

Washington, 124 S. Ct. 2531 (2004).    Myers is not entitled to

relief under Blakely.   See United States v. Pineiro, __ F.3d __

(5th Cir. Jul 12, 2004, No. 03-30437), 2004 WL 1543170 at *1.

     Finally, Myers argues that the factual basis for his plea

was insufficient because there was no proof of any actual loss
                          No. 03-21213
                               -4-

with respect to the count to which he pleaded guilty nor proof

that the deposits of Bank of America, into which the check was

deposited, were FDIC insured.   We conclude that the court's

acceptance of the factual basis was not plain error.   See United

States v. Vonn, 535 U.S. 55, 59 (2002); United States v.

McCauley, 253 F.3d 815, 819 (5th Cir. 2001).

     AFFIRMED.
