                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4663


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DENISE ANN SOUTHERLAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cr-00292-GBL-1)


Submitted:   February 14, 2012            Decided:   March 9, 2012


Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Timothy D.
Belevetz,   Assistant   United  States   Attorney,  Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Denise Ann Southerland appeals her fifty-seven-month

sentence following her guilty plea to one count of bank fraud,

in violation of 18 U.S.C. § 1344 (2006).                 On appeal, Southerland

claims    that     the      district        court      erred     in     applying     a

fourteen-level     loss     enhancement;        ordering      allegedly     excessive

restitution unsupported by specific factual findings regarding

her ability to pay; declining to depart downward for her medical

conditions; and failing to properly apply 18 U.S.C. § 3553(a)

(2006).   We affirm.

           We review a sentence imposed by a district court under

a   deferential    abuse    of   discretion         standard.        Gall   v.   United

States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d

572, 578-79 (4th Cir. 2010) (abuse of discretion standard of

review applicable when defendant properly preserves a claim of

sentencing error in the district court “[b]y drawing arguments

from § 3553 for a sentence different than the one ultimately

imposed”).    We begin by reviewing the sentence for significant

procedural       error,     including           improperly       calculating        the

Guidelines    range,      failing     to    consider    the    § 3553(a)     factors,

choosing a sentence based on clearly erroneous facts, or failing

to adequately explain the sentence.                 Gall, 552 U.S. at 51.

           Southerland        first        argues     that     the    fourteen-level

enhancement      authorized      by   U.S.      Sentencing      Guidelines       Manual

                                            2
(“USSG”) § 2B1.1(b)(1)(H) (2010) is not empirically based and

should not be afforded deference.                     Contrary to her argument,

Southerland’s sentence is not subject to decreased deference,

nor was the district court required to disregard the Guideline

on   the   ground      that     it    is   not     empirically         based.     United

States v. Rivera-Santana, ___F.3d___, 2012 WL 310871, at *4 (4th

Cir. Feb. 2, 2012).

            Next,        Southerland         argues       that     the      $572,811.43

restitution      award    was    not    properly      calculated        because     1)   it

included a $220,000 loan payment that, Southerland argues, was

not related to the bank fraud conviction and was made by people

that were not victims of that offense; and 2) the district court

did not make specific factual findings regarding Southerland’s

ability to pay.            Because Southerland failed to challenge the

restitution      order    in    the    district      court,      the    calculation      is

reviewed for plain error.              See United States v. White, 405 F.3d

208, 215 (4th Cir. 2005).

            First, we conclude that the district court did not

plainly    err    in   including       the       $220,000   loan       payment    in     the

restitution      amount.        The    couple       who   made    the     payment      were

clearly victims directly and proximately harmed by Southerland’s

criminal conduct in the course of her bank fraud scheme.                          See 18

U.S.C. § 3663A(a)(2) (2006).               Further, there is no controlling

precedent on the issue of whether, under the Mandatory Victim

                                             3
Restitution       Act     of    1996,       18     U.S.C.       § 3663A(a)(1)       (2006),    a

district court may include in its restitution calculation a loss

caused by the defendant that does not fall under the offense of

bank fraud but that is part of the common scheme to defraud.

Therefore, it cannot be said that the district court committed

plain error when it included the loan payment in the restitution

amount.      See United States v. Beasley, 495 F.3d 142, 149 (4th

Cir. 2007).

             We    also    hold       that       the     district     court   committed       no

error, plain or otherwise, with respect to its factual findings

regarding Southerland’s ability to pay.                          In making a restitution

award, a district court must determine the amount of restitution

that   the   defendant         owes,     and       “the      manner   in   which,     and   the

schedule according to which, the restitution is to be paid.”                                  18

U.S.C. § 3664(f)(2) (2006).                  In this inquiry the court must make

specific     findings          of    fact        with     respect     to   “the     financial

resources    and    other       assets        of       the   defendant,”      her   projected

earnings     and    other           income,       and     her    financial     obligations,

including         obligations            to            dependents.             18      U.S.C.

§ 3664(f)(2)(A)-(C).                The court need not make separate findings

of fact, but may adopt the findings set forth in the presentence

investigation report (“PSR”), if the facts contained therein are

themselves adequate.                 United States v. Castner, 50 F.3d 1267,

1277 (4th Cir. 1995).                Because we hold that the district court’s

                                                   4
adoption of the PSR’s factual findings and its order of periodic

payments was adequate, we conclude that the district court did

not plainly err in ordering restitution.

             Southerland also claims that the district court erred

in    declining    to     depart    downward       for    her     physical      impairment

pursuant to USSG § 5H1.4.                  Because the district court clearly

understood its authority to depart downward, we may not consider

this claim on appeal.               See United States v. Brewer, 520 F.3d

367, 371 (4th Cir. 2008).

             Finally,      Southerland           argues    that    her       sentence    was

unreasonable because the district court failed to properly apply

the § 3553(a)        factors.        To     the    contrary,      the    district       court

thoroughly explained its chosen sentence, explicitly considering

the severity of the offense, Southerland’s criminal history and

characteristics,        the    victim      impact,       and    Southerland’s       medical

conditions.        Accordingly, we conclude that the district court

did    not   abuse      its    discretion         in   sentencing        Southerland      to

fifty-seven months’ imprisonment.

             For    the    foregoing        reasons,      we    affirm       the   district

court’s judgment.          We deny Southerland’s motion to file a pro se

supplemental       brief      and   deny    as    moot    her    pro    se    motions     for

release pending appeal and for expedited review.                              We dispense

with oral argument because the facts and legal contentions are



                                             5
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




                                    6
