                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4952



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RONALD L. HALSTEAD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:01-cr-00045-IMK)


Submitted:   November 16, 2007            Decided:   January 9, 2008


Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard A. Jaffe, Houston, Texas, for Appellant. Sharon L. Potter,
United States Attorney, Wheeling, West Virginia; Patrick M. Donley,
Fraud Section, Criminal Division, Daniel S. Goodman, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Ronald   L.   Halstead   appeals,   challenging    his    sentence    on

several grounds.    We affirm.



                                  I.

     A jury convicted Halstead of one count of conspiracy to commit

mail fraud and health care fraud, in violation of 18 U.S.C. §§ 371,

1341, 1347, fourteen counts of health care fraud, in violation of

18 U.S.C. § 1347, and one count of conspiracy to launder monetary

instruments, in violation of 18 U.S.C. § 1956(h).             The district

court sentenced Halstead to 121 months imprisonment, to be followed

by three years supervised release.        On appeal, we affirmed the

convictions finding that “[t]he Government presented sufficient

evidence to prove that Halstead created and instructed a system at

the clinic to recruit new patients, convince them of the need for

unnecessary treatments, perform the maximum amount of reimbursable

treatments regardless of medical need, and then bill insurance

companies under doctors’ signatures without their consent. . . .

[and also to] support[] Halstead’s money laundering conviction.”

United States v. Filcheck, 165 F. App’x 284, 286-87 (4th Cir.

2006).   We   vacated   the   sentence,   however,     and    remanded    for

resentencing in light of United States v. Booker, 543 U.S. 220

(2005), because the district court had treated the Sentencing




                                   2
Guidelines as mandatory, rather than advisory.                         Filcheck, 165 F.

App’x at 288 & n*.

      On   remand,    the      district    court         began    by   considering        the

appropriate guideline range.1             The court found that it had clearly

erred in computing Halstead’s base offense level at the original

sentencing.    Under U.S.S.G. § 2S1.1(a), the base offense level is

23 if a person is convicted under 18 U.S.C. § 1956(a)(1)(A),

(a)(2)(A),    or     (a)(3)(A),     and        the      base   offense      level    is   20

otherwise.     Halstead was convicted of conspiracy to commit money

laundering    under       18    U.S.C.    §       1956(h),       and   at   the     initial

sentencing, the court had concluded that his base offense level was

20.

      At resentencing, the court determined that Halstead merited a

base offense level of 23 because § 1956(h) specifies that “[a]ny

person who conspires to commit any offense defined in this section

. . . shall be subject to the same penalties as those prescribed

for the offense the commission of which was the object of the

conspiracy.”       18 U.S.C.A. § 1956(h) (West 2000 & Supp. 2007); see

also U.S.S.G. § 2X1.1(a) (specifying that the base offense level

for   conspiracy     is   the    same     as      for    the   substantive        offense).

Halstead was convicted for conspiracy to violate § 1956(a)(1)(A),

an offense receiving a base offense level of 23.                               The plain



      1
      The district court used the 1996 Guidelines at both hearings,
and neither party contends that the court erred in doing so.

                                              3
language of § 1956(h) and U.S.S.G. § 2X1.1(a) required that he

receive the same base offense level as he would have received for

the underlying offense, and thus the district court assigned him a

base offense level of 23 instead of 20.

     The court then turned to the amount of loss.           At the initial

sentencing, the district court had calculated the intended loss as

$1.9 million in assessing the total offense levels for both the

fraud    and    conspiracy     to    commit   money   laundering   counts,

respectively governed by U.S.S.G. § 2F1.1 and U.S.S.G. § 2S1.1.

Under U.S.S.G. § 2S1.1(b)(2)(F), this intended loss required that

the court add five offense levels.2             Although on resentencing

Halstead challenged this calculation on numerous grounds, the

district court concluded that the measure was reasonable in light

of the evidence.         The court then carefully calculated Halstead’s

total offense level for the conspiracy to commit money laundering

count, arriving at a total offense level of 34.

     The court concluded that Halstead had an advisory guideline

range    of    151-188    months    imprisonment.     The   district   court

considered the sentencing factors under 18 U.S.C. § 3553(a) and

sentenced Halstead to 151 months incarceration, followed by three

years of supervised release.




     2
      The district court grouped the offense levels for the fraud
counts and the conspiracy to commit money laundering count,
pursuant to U.S.S.G. § 3D1.2(d).

                                        4
                                       II.

      Halstead challenges his sentence on five grounds. The Supreme

Court     recently   held   that    “courts     of   appeals   must   review    all

sentences . . . under a deferential abuse-of-discretion standard,”

Gall v. United States, No. 06-7949, 552 U.S.                   , slip op. at 2

(Dec. 10, 2007).       Only “significant procedural error” -- such as

failing to calculate (or improperly calculating) the guideline

range -- or the substantive unreasonableness of a sentence merit

the conclusion that the district court abused its discretion.                   Id.

at __, slip op. at 12.

                                        A.

      Halstead initially argues that only the jury could determine

the amount of intended loss attributable to his conduct, citing

United States v. Milam, 443 F.3d 382 (4th Cir. 2006) and Cunningham

v. California, 127 S. Ct. 856 (2007).

      In Cunningham, the Court applied “Apprendi’s bright-line rule:

Except for a prior conviction, ‘any fact that increases the penalty

for   a   crime   beyond    the    prescribed    statutory     maximum   must   be

submitted to a jury, and proved beyond a reasonable doubt.’”

Cunningham, 127 S. Ct. at 868 (citing Apprendi v. New Jersey, 530

U.S. 466, 490 (2000)).            In Milam, we vacated a sentence “which

concededly involved facts that supported a sentence ‘exceeding the

maximums authorized by the facts established by a plea of guilty or

a jury verdict.’” 443 F.3d at 388.            Both of these cases emphasize


                                        5
that judges may not make factual determinations to increase a

sentence beyond the statutory maximum.

     But the Supreme Court has “never doubted the authority of a

judge to exercise broad discretion in imposing a sentence within a

statutory range. . . .          For when a trial judge exercises his

discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts

that the judge deems relevant.” Booker, 543 U.S. at 233 (citations

omitted).    Here, the district court found the intended loss in

order to determine the advisory guideline range and select the

appropriate sentence within the statutory range.                     The district

court’s determination did not result in a sentence above the

statutory   maximum.        Thus,   Halstead    had     no   right    to   a   jury

determination of the intended loss.

                                      B.

     Halstead next contends that the district court erred in

calculating the $1.9 million intended loss because it adopted an

allegedly arbitrary and unreliable methodology.                 Halstead also

contends    that,   given    the    absence    of   a   reliable      method    for

calculating intended loss, the court should have looked to “gain”

as an alternative.

     The district court, relying upon United States v. Miller,

determined that amount of “loss” should be assessed in this case by

looking to the “intended loss.”        316 F.3d 495, 501 (4th Cir. 2003).


                                       6
The court determined the amount that the defendants charged,

reduced that amount in light of the expected received to billed

ratio, and then subtracted the amount the defendants would have

been paid for the legitimate services performed during that time

period.    Then the court determined the loss properly attributable

to each defendant, see United States v. Bolden, 325 F.3d 471, 498

(4th   Cir.    2003),    and    attributed     the   entire   intended    loss   to

Halstead because he was the “architect” of this carefully monitored

scheme.

       “[T]he Guidelines permit courts to use intended loss in

calculating a defendant’s sentence.”             Miller, 316 F.3d at 502.         We

review the district court’s factual determination of the amount of

intended      loss     for     clear   error,    recognizing      that    only     a

preponderance of the evidence need support these findings. See id.

at 498, 503.         “Moreover, ‘the loss need not be determined with

precision.      The court need only make a reasonable estimate of the

loss, given the available information.’”                  Id. at 503 (citing

U.S.S.G. § 2F1.1, cmt. n.9).           After careful review of the record,

we can only conclude that the district court carefully assessed the

evidence      before    it   and   committed    no   reversible   error    in    its

determination of the amount of intended loss.

                                         C.

       Halstead’s final argument with regard to intended loss is that

the $1.9 million loss overstates the seriousness of his crimes.


                                         7
Halstead notes that:      he was required to pay restitution of only

$46,000; his consulting firm received fees of only slightly more

than $100,000; and he heavily disputed the loss calculation. Given

these   facts,   Halstead   suggests     that    using   intended     loss   to

calculate his sentence results in an unreasonable sentence in this

case.   The Government points out, however, that more than 40,000

patient visits to the clinic occurred during this time frame, and

that Halstead had arranged for patient testing not on the basis of

medical needs, but rather on insurance coverage. Further, Halstead

organized the fraudulent scheme and the district court found him

accountable   for   the   entire   intended     loss   because   he   was    the

“architect” of the scheme.

     In reviewing the reasonableness of the sentence, Gall directs

that we give due deference “to the District Court’s reasoned and

reasonable decision that the § 3553(a) factors, on the whole,

justif[y] the sentence.”      Gall, 522 U.S. at          , slip op. at 21.

This deference is justified because “[t]he sentencing judge is in

a superior position to find facts and judge their import under §

3553(a) in the individual case.”           Id. at __, slip op. at 13

(emphasis added). The district court considered the Guidelines and

the § 3553(a) factors, and explained that the “amount of loss in

this case, [and] the amount of planning that went on and the type

of crime” supported a sentence within the guideline range.              Under




                                     8
our deferential review of sentencing decisions, we cannot find that

the court abused its discretion in reaching this conclusion.

                                         D.

     Halstead also argues that the district court erred in using

the money laundering Guidelines.              He contends that because the

conspiracy to commit money laundering was inextricably related to

the health care fraud, he should have been sentenced under the

fraud Guidelines.        Thus, Halstead asserts that the sentence was

unreasonable because, as he sees it, only one crime occurred here,

fraud.

     We addressed a similar argument in United States v. Caplinger,

339 F.3d 226, 233-34 (4th Cir. 2003).             There, the defendant argued

that his conviction for money laundering under 18 U.S.C. § 1956 was

essentially a fraud conviction, and he should have been sentenced

under the fraud Guidelines.              Id. at 233.            We rejected this

argument,     reasoning     that    “Guidelines       §    1B1.2(a),      however,

instructed the district court to refer to the Statutory Index

(Appendix    A)    to   identify   the   guidelines       for   the    statutes   of

conviction.       The index, in turn, directed the court to the money

laundering    guidelines,      U.S.S.G.       §   2S1.1,    for       [defendant’s]

convictions for money laundering under 18 U.S.C. § 1956.”                   Id. at

233-34 (citations omitted).         This rationale applies equally here.




                                         9
                                  E.

     Finally, Halstead contends that the law-of-the-case doctrine

or mandate rule precluded the district court from revising its

determination of his base offense level for the conspiracy to

commit money laundering count from a 20 to a 23.   Notably, Halstead

does not dispute that, under the money laundering Guidelines, his

base offense level should have been a 23.   Rather, he contends that

the district court violated its mandate on remand.

     We have recognized that “to the extent that the mandate of the

appellate court instructs or permits reconsideration of sentencing

issues on remand, the district court may consider the issue de

novo.”   United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).   In

this case, we instructed the district court on remand to “first

determine the appropriate sentencing range under the Guidelines.”

Filcheck, 165 F. App’x at 288.     Thus, the district court did not

err by correcting its prior mistake in assessing the base offense

level for Halstead’s conviction of conspiracy to commit money

laundering under 18 U.S.C. § 1956.



                                 III.

     For the foregoing reasons, the judgment of the district court

is

                                                          AFFIRMED.




                                  10
