                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4126


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LOQUANN JOHNSON,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cr-00206-JFM-4)


Argued:   January 29, 2010                 Decided:   March 5, 2010


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Michael and Judge King joined.


ARGUED:   Dwight   Everette  Crawley,  Washington,  D.C.,   for
Appellant.    Solette Allison Magnelli, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.   ON BRIEF:
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

     Loquann Johnson pled guilty to one count of conspiracy to

commit   mail     fraud   and   one    count      of     aiding     and     abetting

aggravated identity theft.        The district court sentenced Johnson

to 134   months    imprisonment,      and    he   now    appeals    his     sentence

arguing the court improperly calculated his advisory sentencing

range.   The government has moved to dismiss the appeal, arguing

that Johnson waived his appellate rights.                   For the following

reasons, we deny the government’s motion to dismiss and affirm

the sentence.



                                       I.

     The government indicted Johnson on one count of conspiracy

to commit mail fraud in violation of 18 U.S.C. § 1349 (Count 1),

and two counts of aggravated identity theft in violation of 18

U.S.C. § 1028A(a)(1) (Counts 2 and 7).                  Johnson pled guilty to

Counts 1 and 2 without a plea agreement.                  The basic conspiracy

Johnson pled guilty to involved stealing checks and personal

identification      information       from    mailboxes       and     using      the

information to create fake identification documents.                      With these

fake identification documents, Johnson and his co-conspirators

would cash checks at check-cashing establishments.

     At sentencing, the district court set a base offense level

of 7 for mail fraud, see U.S.S.G. § 2B1.1(a)(1), and imposed the

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following      enhancements:       (1)   a   14-level      enhancement      for    an

extrapolated        loss    that     exceeded       $400,000,      see     U.S.S.G.

§ 2B1.1(b)(1)(H); (2) a 6-level enhancement because the crime

involved more than 250 victims, see U.S.S.G. § 2B1.1(b)(2)(c);

and a 4-level enhancement because Johnson was an organizer or

leader    of   a    criminal     activity    that    involved      five    or     more

participants        or     was     otherwise     extensive,        see     U.S.S.G.

§ 3B1.1(a).        Johnson received a 3-level reduction for acceptance

of responsibility, resulting in an adjusted offense level of 28.

Based on that offense level and a criminal history category IV,

Johnson’s Guidelines range for Count 1 was calculated to be 110-

137 months.        Count 2 carried a mandatory consecutive sentence of

24 months.

     The district court adopted the findings of the presentence

report.     After considering the factors set forth in 18 U.S.C.

§ 3553(a), the court imposed a 134-month sentence, consisting of

110 months on Count 1 and 24 months on Count 2.                    The government

subsequently       moved    to   dismiss     Count    7    of    the     Indictment.

Johnson   timely      appealed,     contending      that   the    district      court

improperly enhanced his sentence, and the government has moved

to dismiss his appeal because of an appellate waiver.




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                                   II.

     The issue of whether a defendant has waived his right of

appeal in connection with a plea proceeding “is a matter of law

that we review de novo.” United States v. Brown, 232 F.3d 399,

403 (4th Cir. 2000).     In assessing whether a district court has

properly applied the Guidelines - including the application of

enhancements - “we review the district court's legal conclusions

de novo and its factual findings for clear error.” United States

v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

                                    A.

     We   first   consider   the   government’s   assertion   that   this

appeal must be dismissed because Johnson waived his right to

appeal.   In support of this argument, the government points to

the following exchange that occurred during the plea colloquy:

     [Government Attorney]: Your Honor, I’m not sure at
     this point, but I thought [defense counsel] was going
     to waive the defendant’s right to appeal any sentence
     based on Counts 1 and 2, is that not my understanding?
     There was some discussion of this.     I just want to
     clarify for the record.

     [Defense counsel]: Your Honor, he would waive so long
     as the sentence is legal. . . .

     The Court: Okay.   So, Mr. Johnson, there is no plea
     agreement. So this – none of this is binding . . . .

                                   ***

     The Court:   And although there’s no formal agreement
     to that effect, at this point it is anticipated that
     neither you nor the Government at this point intend to


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        appeal any sentence I impose, provided the sentence is
        legal; is that correct?

        [Government Attorney]:          That’s correct.

        [Defense Attorney]:          That’s correct, Your Honor.

        The Court: Do you understand that, Mr. Johnson?

        The Defendant:          Yes, I do.

J.A.    53-56.    (emphasis        added).        Based    on    this    exchange,   the

government argues that Johnson waived his right to an appeal.

We disagree.

        We will enforce an appeal waiver so long as the waiver is

given knowingly and intelligently.                  See United States v. Blick,

408 F.3d 162, 169 (4th Cir. 2005).                    Whether Johnson knowingly

and intelligently agreed to waive his right of appeal must be

“evaluated by reference to the totality of the circumstances.”

Id.     (internal       citation     and     quotation     marks        omitted).     An

important factor in such an evaluation is whether the district

court sufficiently explained the waiver to the defendant during

the Rule 11 colloquy.              See United States v. Manigan, 592 F.3d

621, 627 (4th Cir. 2010).             Specifically, Rule 11 mandates that a

district court, before accepting a plea of guilty, must “inform

the defendant of, and determine that the defendant understands,

.   .   .   any     .   .   .    provision       waiving   the    right    to   appeal.”

Fed.R.Crim.P. 11(b)(1)(N).




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       After reviewing the record, we find that Johnson did not

waive his right to appeal.               First, we note there is no explicit

appellate     waiver      provision      to    establish      that     Johnson   clearly

waived his right to appeal.                  See United States v. General, 278

F.3d   389,      400   (4th      Cir.    2002)     (enforcing     waiver      where   the

appellate waiver provision in the plea agreement was unambiguous

and plainly embodied in the agreement).                        Second, the Rule 11

colloquy    is    insufficient          to   establish    a    waiver    of   Johnson’s

right to appeal.          See Manigan, 592. F.3d at 627-28 (holding that

although defendant had waived his right to appeal in a formal

plea agreement, the waiver was insufficient because the Rule 11

colloquy did not demonstrate that the waiver was given knowingly

and intelligently).           Here, the district court’s statement that

“it is anticipated that neither you nor the Government at this

point intend to appeal any sentence I impose” is too ambiguous

to   demonstrate       that      Johnson      knowingly       waived    his   appellate

rights.       Our conclusion is buttressed by the court’s parting

words at sentencing that “[i]f anybody believes I’ve erred . . .

they have the right to appeal.”                   J.A. 156; see Manigan, 592 F.3d

at 628 (noting “[w]hen a district court has advised a defendant

that, contrary to the plea agreement, he is entitled to appeal

his sentence, the defendant can hardly be said to have knowingly

waived     his    right     of     appeal”)        (internal    citation      omitted).



                                              6
Accordingly,        we    deny    the     government’s         motion     to     dismiss      and

proceed to consider the merits of Johnson’s appeal.

                                               B.

       Johnson       contends       that        the       district       court        erred    in

calculating his advisory sentencing range.                          He first argues that

the    court    committed        clear    error       when    it    assigned      a    14-point

enhancement         to   his     offense       level      based     on   the     loss    amount

because the government failed to show that the victims sustained

$400,000       in   losses      during     the      conspiracy.          In    applying       the

enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1)(H), the court

relied on the testimony of a postal inspector that he used a

random sample of 35 (out of 400) victims to approximate the loss

amount.     For the 35 victims, there was more than $34,000.00 in

losses, resulting in an approximate loss per victim of $980.00.

By multiplying the approximate loss per victim by the number of

known victims (400), the loss amount exceeded $400,000.                                 Johnson

contends that the government’s evidence is lacking because it

extrapolated        the    losses       from     35    of    the    victims      to     all   400

victims rather than showing each of the 400 victims’ losses.

       The Guidelines permit district courts to estimate losses.

See U.S.S.G. § 2B1.1 cmt. n. 3(C) (noting “[t]he court need only

make   a   reasonable          estimate    of       the     loss”   taking     into     account

“[t]he approximate number of victims multiplied by the average

loss to each victim”).             Further, we have held that extrapolation

                                                7
is an acceptable method to use in making a reasonable estimate

of loss under the Guidelines.              See United States v. Pierce, 409

F.3d 228, 234 (4th Cir. 2005) (finding the district court did

not clearly err in finding a loss amount based on extrapolated

information).           In light of this authority, and based on our

review of the record, we are satisfied that the court did not

err in calculating the loss amount.

      Johnson next argues that the district court clearly erred

by    applying      a    6-level     enhancement             pursuant        to        U.S.S.G.

§ 2B1.1(b)(2)(c)        because     the     crime       involved          more     than    250

victims.     Johnson contends that there is an insufficient basis

to find this number of victims.                We disagree.           The court applied

this enhancement based on the postal inspector’s testimony that

although the precise number of victims could not be established

and   more   victims     were   coming     forward,          the     number       of   victims

identified at that point was greater than 500 persons.                                     The

postal     inspector     testified        that    more        than     50     victims      had

actually     been     interviewed    and       that    more        than     300    real    and

assigned     social     security    numbers       were       reflected       on    a    single

typewriter     ribbon     seized     from        one    of     the     co-conspirators.

Moreover,     the     government    submitted          more    than       400     names    and

addresses     of    victims     targeted       for     mail    theft        by    these    co-

conspirators.         Based on this evidence, we do not believe the



                                           8
district court clearly erred in finding there were more than 250

victims of this conspiracy.

        Finally, Johnson contends that the district court clearly

erred    by    applying          a   4-level      enhancement       for    his       role    as    an

organizer          and     leader     in     the       offense     pursuant       to       U.S.S.G.

§ 3B1.1(a).          Rather, Johnson argues that the court should have

found he was only a manager and/or supervisor, which would have

only    warranted          a     3-level     enhancement.            In    support          of    his

argument, he contends that he was not an organizer or leader

because       he    did        not   possess      the    actual     tools       or     implements

necessary to make the fraudulent documents.

        Under the Guidelines, the district court, in distinguishing

a leadership and organization role from one of mere management

or supervision, should consider factors that include:

        the exercise of decision making authority, the nature
        of participation in the commission of the offense, the
        recruitment of accomplices, the claimed right to a
        larger share of the fruits of the crime, the degree of
        participation in planning or organizing the offense,
        the nature and scope of the illegal activity, and the
        degree of control and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4.                     In applying this enhancement, the

court     based          its    decision     on        the   testimony      of       the    postal

inspector          who    stated      that     Johnson       was    one    of     the       longest

standing members of the conspiracy, scouted and participated in

every     part       of        the   conspiracy,         recruited        other       people      to

participate in the conspiracy, paid proceeds to other members,

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and directed and trained members of the conspiracy.             In light of

this   evidence,   we   do   not   believe   the   district   court   clearly

erred in finding Johnson was an organizer and leader of the

conspiracy.



                                     III.

       For the foregoing reasons, we deny the government’s motion

to dismiss the appeal and affirm the sentence imposed by the

district court.

                                                                      AFFIRMED




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