                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4282


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BOBBIE LYNN PEREZ, a/k/a Bobbie Lynn Wallace,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (5:10-cr-00396-FL-1)


Submitted:   June 6, 2013                 Decided:   June 13, 2013


Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by unpublished per curiam opinion.


Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Thomas   G.   Walker,  United  States   Attorney,  Jennifer   P.
May-Parker, Joshua L. Rogers, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Bobbie Lynn Perez pled guilty to one count of mail

fraud, 18 U.S.C.A. § 1341 (West Supp. 2012), and three counts of

wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2012).                      The district

court varied above the Guidelines range and sentenced Perez to

four       years    of    imprisonment.         Perez   appeals   her     sentence,

contending that the district court erred when it failed to give

notice       that    it    intended   to       impose   a   sentence    above   the

Guidelines          range,      departed         upward      without       adequate

justification, and incorrectly determined the amount of loss,

U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(C) (2011).                      For

the reasons explained below, we affirm. 1

              While Perez was pregnant in early 2010, she agreed to

have her child adopted by three different families, located in

California, New York, and North Carolina.                    From March to May

2010, Perez requested money for living and medical expenses from

all three families during her pregnancy and all three sent her

money, a total of $11,897.            During the same time period, Perez


       1
       We scheduled argument in this case for May 17, 2013.
However, due to counsel’s illness, argument could not be held.
On May 31, 2013, Perez moved to waive oral argument and to
submit the case on the briefs; the Government does not oppose
the motion.   We grant the motion because we conclude that the
facts and legal contentions are adequately presented in the
record and briefs, and that oral argument would not aid the
decisional process.



                                           2
spent over $16,000 at a casino in Las Vegas, Nevada.                     Perez’s

baby was born prematurely in May 2010 and adopted by the couple

from New York, known in this litigation as “TM and SK.”                    Perez

did not inform the other families that the baby had been born.

She continued to request and receive money from the family in

California.

            After Perez’s guilty plea to mail and wire fraud, the

probation officer calculated her advisory Guidelines range as

18-24 months, based on a loss of more than $10,000 but not more

than   $30,000.      The   probation    officer    also     suggested    that   an

upward departure might be justified because of the emotional

trauma caused to the families that did not adopt Perez’s baby.

See    U.S.S.G.    § 2B1.1,     cmt.   n.19(A)(ii)        (departure     may    be

warranted for substantial non-monetary harm).                Perez objected to

the inclusion in the loss amount of all the money she received

from the families during her pregnancy, arguing that the couple

who adopted her baby had not suffered any pecuniary harm.

            At    sentencing,   the    district    court    decided     that    all

three families were victims who suffered pecuniary harm because

all three reported that they would not have sent money to Perez

during her pregnancy had they known that she was offering her

child to others for adoption as well as to them.                       The court

overruled     Perez’s      objection       and    adopted     the     Guidelines

calculation recommended in the presentence report.                     The court

                                       3
then imposed a variance sentence above the Guidelines range,

explicitly citing the sentencing factors set out in 18 U.S.C.

§ 3553(a) (2006), and describing Perez as a predator from whom

the public needed protection.          After pronouncing sentence, the

court added that it could have reached the same sentence by

means of a departure under Application Note 19 because of the

severe non-monetary trauma suffered by the families who did not

adopt Perez’s child, and the court explained how it could have

structured the departure.

            We review a sentence for reasonableness under an abuse

of discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), which requires consideration of both the procedural and

substantive   reasonableness    of     a    sentence.      Id.;    see    United

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

            Perez first contends that the district court made a

departure   above   the   Guidelines       range,   and   that    it   was   thus

required to give her reasonable advance notice of its intention

to depart or vary above the Guidelines range, which the district

court failed to do.         Such notice is required only when the

sentencing court departs from the Guidelines range.                    See Burns

v. United States, 501 U.S. 129, 135 (1991).               However, when the

sentencing court varies from the Guidelines range, the notice

requirement does not apply.      Irizarry v. United States, 553 U.S.

708, 713-14 (2008).       Here, the district court specified that it

                                     4
was imposing a sentence above the Guidelines range based on its

consideration of the sentencing factors set forth in § 3553(a).

Such a sentence constitutes a variance, not a departure.                       See

United    States   v.   Rivera-Santana,    668   F.3d   95,   100    n.6       (4th

Cir.), cert. denied, 133 S. Ct. 274 (Oct. 1, 2012).                 Therefore,

prior notice to Perez was not required.            Irizarry, 553 U.S. at

713-14.    Perez’s reliance on United States v. Fancher, 513 F.3d

424 (4th Cir. 2008) (holding that notice of possible variance

given in the presentence report is insufficient), is unavailing

because Fancher was abrogated by Irizarry. 2

            Next, Perez maintains that the district court made a

significant departure without sufficient explanation and without

addressing   the    mitigating   factors   she   advanced,     such       as   her

difficult early life and her addictions to drugs and alcohol.                    A

“deferential       abuse-of-discretion     standard       applies        to    any

sentence, whether inside, just outside, or significantly outside

the   Guidelines    range.”      Rivera-Santana,    668    F.3d     at    100-01

(internal citation and quotation marks omitted).              In reviewing a

variance, the appellate court must give due deference to the

      2
       The government contends that Perez did not preserve this
issue because she did not object to a lack of notice in the
district court, and that the issue should thus be reviewed for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993).
We need not decide whether de novo or plain error review is
appropriate because no error occurred and Perez’s claim fails
under both standards of review.



                                     5
sentencing court’s decision.            United States v. Diosdado-Star,

630 F.3d 359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946

(2011).        The issue was preserved for appeal when Perez “[drew]

arguments from § 3553(a) for a sentence different than the one

ultimately imposed,” which “sufficiently alert[ed] the district

court     of     its   responsibility        to    render    an   individualized

explanation addressing those arguments.”               Lynn, 592 F.3d at 578.

               As   noted   above,   Perez    mistakenly     characterizes      the

variance sentence as a departure.                 While the court did not give

an extensive “individualized assessment” of the facts on which

it based its decision to depart from the Guidelines and impose a

four-year sentence, see Lynn, 592 F.3d at 576, the court did

state that Perez was a predator from whom the public needed to

be protected.          The court also noted that Perez’s conduct had

caused    significant       emotional    trauma       to    two   of   the   three

families.       The implied finding was that these factors outweighed

the mitigating factors Perez presented.                 Moreover, the district

court explicitly stated that it found “a sentence of four years

is the one that accomplishes the purposes of sentencing.                     That’s

a sentence that’s sufficient, but not greater than necesssary.”

               Further, the district court stated that it could have

alternatively entered the same sentence by departing upward from

the Guidelines.         As the PSR and the court noted, Application

Note 19(A) to § 2B1.1 states that “[t]here may be cases in which

                                        6
the offense level determined under this guideline substantially

understates the seriousness of the offense” in which case, “an

upward departure may be warranted.”                  Application Note 19(A)(ii)

specifically       provides   that     in       determining     whether    an     upward

departure is warranted, the court may consider whether “[t]he

offense caused or risked substantial non-monetary harm” such as

“severe emotional harm.”              U.S.S.G. § 2B1.1, App. n.19(A)(ii).

The     district     court     found        that        Perez’s    offense        caused

“substantial nonmonetary harm” in that “[a]t least two of the

three     families       expecting     to        adopt    [the]    child        suffered

significant       emotional    trauma.”             As    a    result,     the     court

“discount[ed]      the    suitability       of    the    [sentencing]     range”      for

offense levels 11 through 17 “as not capturing the harm” Perez

caused, and concluded that a total offense level of 18 yielded a

sentencing range that suitably captured the harm.                              Thus, the

court’s explanation for its sentence was adequate.

            Last, Perez contends that the district court erred in

finding    that    the    family     who    adopted      her   child,     TM    and   SK,

suffered a loss under U.S.S.G. § 2B1.1(b)(1)(C).                     Had the court

found otherwise and excluded from the loss amount the money TM

and SK sent to Perez, the loss amount would have been reduced to

$7,043.    As a result, Perez’s base offense level would have been

reduced by two levels, and her Guidelines range would have been

reduced from 18-24 months to 12-18 months.                     The district court’s

                                            7
calculation of the loss amount attributable to a defendant is a

factual    determination          reviewed        for    clear     error.        See     United

States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).

            Enhancements          under      § 2B1.1(b)         are    determined       by   the

amount of loss resulting from the fraud.                        The loss amount is the

greater    of    the     actual    loss      or    the    intended       loss.      U.S.S.G.

§ 2B1.1,     cmt.      n.3(A).          “Actual         loss”    is     defined     as       “the

reasonably       foreseeable       pecuniary           harm    that    resulted     from      the

offense,” and “intended loss” is the pecuniary harm that was

intended        from     the      offense.              Id.,     cmt.     n.3(A)(i)-(ii).

Application       Note    3(C)     to   § 2B1.1         provides       that   the   district

court need only make a reasonable estimate of the loss and “the

court’s      loss        determination            is     entitled        to      appropriate

deference.”

            The        record     reflects        that        during    the      time    Perez

solicited and received money from the three families, she spent

over $16,000 gambling at a Las Vegas casino.                             The record also

shows   that,     with     respect      to    at       least    $8,100    of     the     money,

including $4,025 from TM and SK, the families sent and Perez

received the wire transfers at the casino.                              Further, although

Perez asked the families for the money to assist with her living

and pregnancy-related medical expenses, the record contains no

evidence that Perez actually used any of the money for those

purposes.        On the basis of the record evidence, the district

                                              8
court found that TM and SK, like the other prospective parents,

suffered actual loss because “if they had known that this was

going on they would not have given the defendant money.”

                  In light of the Sentencing Commission’s direction that

“actual loss” includes “pecuniary harm that the defendant . . .

under the circumstances[] reasonably should have known was a

potential result of the offense,” § 2B1.1, cmt. n.3(A)(iv), we

cannot say that the district court clearly erred in calculating

the loss amount to include the money TM and SK sent to Perez. 3

Mehta, 594 F.3d at 281.                  Moreover, fraud encompasses deceptive

acts which deprive others of “the intangible right to control

the disposition of [their] assets.”                 United States v. Gray, 405

F.3d       227,    234   (4th     Cir.    2005);   see   also   United   States    v.

Gillion, 704 F.3d 284, 295-96 (4th Cir. 2012) (finding employee,

who concealed his identity to trick his employer into selling

him trailers for use in a competing business, committed fraud by

interfering          with   his     employer’s     right   to    dispose   of     its

property).         Finding no reversible error, we must affirm.

       3
       The record does not reveal when Perez decided that TM and
SK would actually adopt her baby, and there is nothing in the
record to suggest that Perez intended to keep her baby.
Nonetheless, the loss amount does not change even if the only
reasonable conclusion were that Perez intended to defraud two of
the three families who sent her money while seeking to adopt her
baby, but not all three. For, the loss amount is the greater of
the actual loss or the pecuniary harm that was intended to
result from the offense. U.S.S.G. § 2B1.1, cmt. n.3(A).


                                             9
          We   therefore   affirm    the   sentence   imposed   by   the

district court.

                                                                AFFIRMED




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