                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4352



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


BRANDON LEE CAUDLE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00038-2)


Submitted:   December 19, 2007            Decided:   January 10, 2008


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina,
for Appellant.   Jonathan A. Vogel, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Brandon Lee Caudle appeals his jury convictions and

forty-eight month sentence for conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371 (2000); aiding and abetting

aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)

(2000); bank fraud, in violation of 18 U.S.C. § 1344 (2000); and

theft or receipt of stolen mail matter, in violation of 18 U.S.C.

§ 1708 (2000).    Caudle asserts the district court erred in denying

his motion to suppress and in calculating the intended loss under

the Sentencing Guidelines.1     Caudle filed a pro se supplemental

brief in which he makes a series of claims regarding his sentence

and the Inmate Financial Responsibility Program.        Because our

review of the record discloses no reversible error, we affirm.

          Caudle contends the district court erred in denying his

motion to suppress a checkbook seized from his person during his

arrest.   Caudle asserts he was under arrest at the time of the

seizure, but the arresting officer lacked probable cause to support

such an arrest.    Alternatively, if the seizure is deemed to have

occurred during a Terry2 stop, Caudle contends that the officer’s

patdown search for weapons did not permit him to remove the

checkbook from Caudle’s pocket.    However, Caudle fails to address



     1
      Counsel notes he is presenting the latter claim pursuant to
Anders v. California, 386 U.S. 738 (1967).
     2
      Terry v. Ohio, 392 U.S. 1 (1968).

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the fact that the district court ultimately denied the motion to

suppress on the ground that it was untimely raised.               Pursuant to

Fed. R. Crim. P. 12(b)(3), a motion to suppress evidence must be

made before trial.        See United States v. Wilson, 115 F.3d 1185,

1190 (4th Cir. 1997).        Failure to preserve the issue amounts to

waiver under Rule 12(e); however, a district court may grant relief

from a waiver for good cause.        See United States v. Ricco, 52 F.3d

58, 62 (4th Cir. 1995).      In his brief on appeal, Caudle has made no

attempt to demonstrate sufficient cause; therefore, he has waived

this assignment of error.         See 4th Cir. R. 34(b).         We therefore

decline to consider whether the seizure of the checkbook was

incident to a lawful arrest.

           Caudle’s   next       claim   is   that   the    district   court’s

sentencing determination of the intended loss was improper because

it encompassed more than what was contemplated within the duration

of the conspiracy.        According to the presentence report (“PSR”),

Caudle successfully passed two stolen checks totaling $336.10

before he was arrested following an unsuccessful attempt to pass a

check in the amount of $300.72.           While the three checks used by

Caudle had an average worth of $212.27, there were another 195

blank stolen checks in his possession; accordingly, the probation

officer   found   there    was   potential    for    an   additional   loss   of

$41,392.65, for a total estimated loss of $42,029.47. While Caudle

objected to the use of a loss amount calculation that reflected a


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hypothetical loss rather than the actual loss associated with his

one-day involvement in the conspiracy, the district court overruled

the objection and applied a six-level offense level enhancement,

pursuant   to    U.S.      Sentencing      Guidelines        Manual     (“USSG”)

§ 2B1.1(b)(1)(D) (2006).

           While issues regarding the definition of “intended loss”

are reviewed de novo, the district court’s estimation of the

intended loss is reviewed for clear error.              See United States v.

Wells, 163 F.3d 889, 900 (4th Cir. 1998).         In determining the loss

amount for sentencing purposes, the court may use the intended loss

if that amount is more than the actual loss.                       USSG § 2B1.1,

comment. (n.3(A)).      Intended loss is defined as the pecuniary harm

that was intended to result from the offense.                Id.    Based on the

evidence presented, the district court needed only to make a

“reasonable    estimate”    of   the   loss.     USSG    §    2B1.1,    comment.

(n.3(C)). A district court’s inclusion of blank checks in the

determination    of   intended    loss   is    acceptable      for    sentencing

purposes, as the loss with respect to non-negotiated instruments

may be estimated by calculating the average loss of the negotiated

instruments.    See United States v. Robbio, 186 F.3d 27, 43-44 (1st

Cir. 1999); United States v. Chappell, 6 F.3d 1095, 1101 (5th Cir.

1993).

           While Caudle notes that the district court’s calculation

of the intended loss amount was far greater than the actual loss


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amount in this case, intended loss is not limited to the possible

or probable; rather, district courts are permitted to use intended

loss to calculate a defendant’s sentence “even if this exceeds the

amount of loss actually possible, or likely to occur, as a result

of the defendant’s conduct.”         United States v. Miller, 316 F.3d

495, 501-502 (4th Cir. 2003).            The district court’s calculations

were accurate, and the court did not err by including the estimated

value of the blank checks possessed by Caudle.               Accordingly, we

find that the district court appropriately applied a six-level

offense level increase under USSG § 2B1.1(b)(1)(C).

           In his pro se supplemental brief, Caudle’s first claim is

that the district court erred by delegating authority to the Bureau

of Prisons (“BOP”) to set the timing and payment amount of his

criminal   monetary     penalties        through     the   Inmate   Financial

Responsibility Program (“IFRP”). A district court may not delegate

its authority to set the amount and timing of restitution to the

BOP or a probation officer, without retaining ultimate authority

over such decisions.      United States v. Miller, 77 F.3d 71, 77-78

(4th Cir. 1996).       “[T]he statutory duty imposed upon district

courts to fix the terms of a fine must be read as exclusive because

the imposition of a sentence, including the terms of probation or

supervised release, is a core judicial function.”               Id. at 78; see

also 18 U.S.C. § 3572(d).      In this case, the district court did set

the   amount   and   timing   of   the    criminal   monetary    penalties   by


                                    - 5 -
ordering payment due immediately.                Furthermore, participation in

the IFRP does not violate Miller.                See Matheny v. Morrison, 307

F.3d 709, 712 (8th Cir. 2002) (holding that BOP has discretion to

place inmate in IFRP when sentencing court has ordered immediate

payment of court-imposed fine) (citing McGhee v. Clark, 166 F.3d

884, 886 (7th Cir. 1999), and Montano-Figueroa v. Crabtree, 162

F.3d 548, 549-50 (9th Cir. 1998)).                Therefore, Caudle’s claim is

without merit.

             In his second claim, Caudle contends that the district

court   erred      in   denying    his   motion    for   a    downward   departure.

However,     the    district      court’s   refusal      to    depart    below   the

Sentencing Guidelines range is not reviewable on appeal, as the

court gave no indication that it failed to recognize its authority

to depart.    See United States v. Cooper, 437 F.3d 324, 333 (3d Cir.

2006)   (collecting        cases    from    five    circuits     discussing      rule

post-Booker); United States v. Quinn, 359 F.3d 666, 682 (4th Cir.

2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir. 1990), and expressing rule in this Circuit pre-Booker).

Therefore, Caudle’s claim must fail.

             Finally, Caudle claims that the district court erred in

calculating his criminal history score.              Caudle notes that the PSR

assigned him one criminal history point for his November 2005 state

convictions for driving while his license was revoked, expired

inspection, expired registration, and operating a vehicle without


                                         - 6 -
insurance; Caudle was sentenced to fourteen days imprisonment for

these violations.    Caudle contends that “many circuits” have held

that operating a vehicle without insurance is equivalent to driving

without a license and that he should not have been given a point

for this conviction.       However, even if Caudle is correct, this

matter is irrelevant in terms of his criminal history category and

sentence.    According to the PSR, Caudle had six convictions that

qualified under USSG § 4A1.1(c), with a point assigned for each

conviction; however, only a maximum of four points may be counted

under § 4A1.1(c).    Accordingly, even if Caudle’s driving offenses

were not given a criminal history point, he would still have a

total of four points under § 4A1.1(c) and would have been assigned

to the same criminal history category.     Therefore, Caudle’s claim

is meritless.

            In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal.          We therefore

affirm Caudle’s convictions and sentence.        This court requires

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.              If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation.      Counsel’s motion

must state that a copy thereof was served on the client.                We

dispense    with    oral   argument   because   the   facts   and    legal


                                 - 7 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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