                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5053


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL R. BENNETT,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00045-TDS-1)


Submitted:   June 13, 2011                 Decided:   June 23, 2011


Before NIEMEYER, KING, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas   N.   Cochran,   Assistant   Federal   Public   Defender,
Greensboro, North Carolina, for Appellant.    Ripley Rand, United
States Attorney, Robert M. Hamilton, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant    to    a   written    plea    agreement,       Michael    R.

Bennett pled guilty to three counts of wire fraud, in violation

of 18 U.S.C. § 1343 (2006) (Counts One, Fourteen, and Fifteen),

and one count of making a false statement, in violation of 18

U.S.C. § 1001(a)(3) (2006) (Count Twenty-One).                We affirm.

            The Government charged Bennett based on his scheme to

defraud employers and background screening companies of money

and property by misrepresenting to those victims that he and his

company,    Workplace       Compliance,     Inc.    (“WCI”),     provided      drug

testing     services    in     compliance     with     U.S.     Department       of

Transportation (“DOT”) regulations.                Specifically, Bennett and

WCI fraudulently purported to provide drug testing services to

employers covered by DOT regulations 49 C.F.R. § 40.1 — .413

(2010).     Those regulations require that covered workers submit

to drug screening reviewed by a licensed physician trained in

substance abuse and designated as the Medical Review Officer

(“MRO”).    49 C.F.R. §§ 40.3 and 40.121.             Under the regulations,

if   a   drug   screening    returns   a    non-negative      result,    the    MRO

receives    the   result,     interviews     the    worker,     and   determines

whether the result indicates illicit drug use.                 Here, the doctor

identified as the MRO for WCI neither held certification as an

MRO nor acted as MRO for WCI.              Rather, Bennett — who is not a



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physician — reviewed drug screenings and performed all duties

required of the MRO.

            Generally,    this    court     reviews      a     sentence     for

reasonableness, using an abuse of discretion standard of review.

Gall v. United States, 552 U.S. 38, 51 (2007).               However, because

Bennett did not raise this objection in the district court, this

court reviews for plain error. 1           See Fed. R. Crim. P. 52(b);

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                    To

prevail on a claim of unpreserved error, Bennett must show that

error occurred, was plain, and affected his substantial rights.

United   States   v.   Massenburg,   564   F.3d   337,   342-43    (4th     Cir.

2009).   Even if such error is found, it is within this court’s

discretion to notice the error, and we do so “only if the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.”        Id. at 343 (internal quotation marks

omitted).

            The   Guidelines      direct     courts      to     determine     a

defendant’s offense level for fraud commensurate with the amount


     1
       At sentencing, Bennett did not object to the loss amount
used to calculate his Guidelines range but only the amount used
to determine restitution.    Bennett asserts that his objection
below preserved his challenge to the loss calculation. However,
we have held that objection on one ground does not preserve
claims on different grounds.    United States v. Massenburg, 564
F.3d 337, 342-43 & n.2 (4th Cir. 2009) (reviewing unpreserved
Rule 11 error).



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of loss involved in the fraud.                   See U.S. Sentencing Guidelines

Manual       (“USSG”)    §     2B1.1(b)(1)       (2009).           In    the    presentence

investigation report (“PSR”), the probation officer added twelve

levels to Bennett’s offense level based on the total provable

loss to victims of $337,030. 2                   With a total offense level of

eighteen and a criminal history category of I, Bennett earned a

Guidelines       range    of    twenty-seven           to    thirty-three         months    of

imprisonment.           USSG    ch.   5,   pt.     A    (sentencing           table).      The

probation officer calculated restitution of $398,335 based on

the amount of loss attributable to fifteen specific victims.

Bennett noted an objection only to the amount of restitution.

At the sentencing hearing, the district court spent considerable

time       resolving    the    restitution       issue,      then       imposed    a    below-

Guidelines          sentence    of    twenty-two        months,         and    $209,030     in

restitution.

               On    appeal,    Bennett    asserts          that   the    district       court

committed procedural sentencing error in its calculation of loss

and therefore erred in establishing his recommended Guidelines

range.        He contends that because some of the drug testing he

       2
        The probation officer noted that although Bennett
defrauded a broad range of victims, the Government focused on
the fraud perpetrated against fifteen victims in the healthcare
and transportation industries in computing “total loss” for
purposes of USSG § 2B1.1(b)(1)(G).   The probation officer noted
that Bennett purported to provide these specified victims with
services mandated by federal regulation.



                                             4
contracted to perform did not require DOT compliance, victims

did not suffer a loss as to those tests.                      Bennett concedes that

under USSG § 2B1.1, loss may be actual, intended, or estimated

loss       to   victims,     or   gain   to    defendant.          USSG    § 2B1.1    cmt.

n.3(A), (B).          He asserts that in this instance, loss is only the

financial gain he received for DOT-regulated testing that he

failed      to    provide.        Bennett     further   argues      that    because    the

Government failed to submit evidence denoting what quantum of

testing         was   DOT-regulated      as       compared    to    unregulated,       the

district court had no factual basis on which to base its loss

calculation for purposes of determining his offense level. 3                           As

support for his argument, Bennett relies on this court’s opinion

in United States v. Dawkins, 202 F.3d 711 (4th Cir. 2000).

                 Dawkins, a former federal employee, was required to

provide         periodic   certification       to    retain   disability      benefits.

202 F.3d at 713.              Dawkins fraudulently certified that he was

unemployed, even though he received payment as a courier in a

drug conspiracy.           The trial court calculated loss for sentencing


       3
       Because Bennett did not raise this objection below, but in
fact agreed to the amount of loss for USSG § 2B1.1 purposes,
neither the Government nor the district court were put on notice
of the need to closely examine the loss amount.         Bennett’s
conduct below comes perilously close to inviting error.       See
United States v. Hickman, 626 F.3d 756, 772 (4th Cir. 2010)
(“Under ordinary circumstances, this court will not consider
alleged errors that were invited by the appellant.”).



                                              5
purposes     as   the    total   payment       Dawkins     received        from    the

government while participating in the drug conspiracy, citing

former     USSG   § 2F1.1     (deleted        by   2001    consolidation          with

§ 2B1.1).     This court disagreed, concluding that “the loss was

only   the   amount     fraudulently     claimed”     rather       than    the    full

amount of payment.       Dawkins, 202 F.3d at 714-15.

             We   are   persuaded   by      the    Government’s       brief        that

Bennett’s    reliance    on   Dawkins    is    misplaced     and    this    case     is

controlled by USSG § 2B1.1 cmt. n.3(F)(v)(I).                  That application

note directs that, “[i]n a case involving a scheme in which

services were fraudulently rendered to the victim by persons

falsely posing as licensed professionals,” “loss shall include

the amount paid for the . . . services . . . rendered with no

credit provided for the value of those . . . services.”                           Here,

Bennett posed as a doctor in purporting to provide the services

of an MRO.        Therefore, he is not entitled to the reduction

applied in Dawkins.       See United States v. Kieffer, 624 F.3d 825,

834 (8th Cir. 2010) (applying USSG § 2B1.1 cmt. n.3(F)(v)(I) to

defendant who posed as licensed attorney).

             Accordingly, we conclude the district court did not

plainly err when it adopted the PSR’s calculation of loss for

purposes of determining Bennett’s offense level.                     We therefore

affirm Bennett’s conviction and sentence.                 We dispense with oral

argument because the facts and legal contentions are adequately

                                        6
presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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