                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4616



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RALPH MILLER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-000823-DCN)


Submitted:   January 26, 2007              Decided:    March 6, 2007


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Michael Rhett DeHart, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ralph Miller appeals his sentence of eighteen months’

imprisonment after pleading guilty, pursuant to a plea agreement,

to one count of conspiracy to commit fraud, in violation of 18

U.S.C.    §    371.    Miller’s   attorney    filed    a   brief    pursuant    to

Anders v. California, 386 U.S. 738 (1967), alleging that there are

no meritorious issues for appeal, but raising the issues of whether

the district court erred in calculating the amount of loss, and

whether the Government breached the plea agreement by failing to

move for a downward departure.

               This court reviews a district court’s factual findings at

sentencing for clear error, and its related legal conclusions,

including the application of the Sentencing Guidelines, de novo.

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Here,    the    district   court’s   calculation      of   loss    is   a   factual

determination reviewed for clear error. See United States v.

Brooks, 111 F.3d 365, 373 (4th Cir. 1997).

               At sentencing, the district court makes a “reasonable

estimate of the loss, given the available information.”                      United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003); USSG § 2B1.1,

comment. (n.2(C)). Enhancements under § 2B1.1(b) are determined by

the amount of loss suffered as a result of the fraud.                   The amount

of loss is the greater of the actual loss or the intended loss.

USSG § 2B1.1, comment. (n.2(A)).             “Intended loss” is defined as


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“the pecuniary harm that was intended to result from the offense

. . . and . . . includes intended pecuniary harm that would have

been impossible or unlikely to occur.”                 USSG § 2B1.1, comment.

(n.2(A)(ii)).     Consequently, the intended loss amount may be used,

“even if this exceeds the amount of loss actually possible, or

likely to occur, as a result of the defendant’s conduct.”                     Miller,

316 F.3d at 502.

            The   district    court     made     a    reasonable      determination

regarding the amount of loss resulting from the conspiracy’s scheme

to fraudulently obtain artificially high mortgages for three pieces

of   real   estate.    These      findings      are   well    documented      in    the

presentence report and Miller did not object to the amounts.

Miller has not made an affirmative showing that the findings in the

presentence report are unreliable or inaccurate.                        See United

States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999); United

States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).                     Accordingly,

the district court was entitled to adopt the presentence report as

its own findings.     United States v. Terry, 916 F.2d 157, 162 (4th

Cir.   1990).     Therefore,      the     district     court    did    not    err    in

calculating the amount of loss attributable to Miller, and thus did

not commit clear error.

            Miller suggests that the Government breached the plea

agreement    by   failing    to    move    at    sentencing      for    a    downward

departure, based upon Miller’s cooperation.                  We review this claim


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for clear error.      United States v. Conner, 930 F.2d 1073, 1076-77

(4th Cir. 1991).

            Absent an express provision in a plea agreement, which is

not   present   here,      a   criminal       defendant   does     not   have   a

constitutional right to a motion for downward departure pursuant to

USSG § 5K1.1.    United States v. Francois, 889 F.2d 1341, 1344 (4th

Cir. 1989); see United States v. Wallace, 22 F.3d 84, 87 (4th Cir.

1994).    Additionally, there was no evidence that the Government’s

refusal to make the motion was based upon an unconstitutional

motive.    United States v. LeRose, 219 F.3d 335, 341-42 (4th Cir.

2000) (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)).

Therefore, no error resulted from the Government’s failure to move

for   a   reduction   in   Miller’s    sentence     based   upon    substantial

assistance.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Miller’s conviction and sentence. The

court requires that counsel inform Miller, in writing, of the right

to petition the Supreme Court of the United States for further

review.    If Miller requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may move

in this court for leave to withdraw from further representation.

Any such motion filed by counsel must state that a copy thereof was

served on Miller. We dispense with oral argument because the facts


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and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.



                                                          AFFIRMED




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