UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4660

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KIMBERLY SPENCER MILES,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:09-cr-00020-RLV-DSC-2)

Submitted: February 28, 2011 Decided: March 18, 2011

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ross H. Richardson, 

Assistant Federal Defender, Charlotte, North Carolina, for 

Appellant. Amy Elizabeth Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Kimberly Spencer Miles appeals her convictions and 

forty-six-month sentence after pleading guilty pursuant to a 

plea agreement to one count of conspiracy to defraud and obtain 

under false pretenses money or property owned by or under the 

control of Medicaid, in violation of 18 U.S.C.A. § 1349 (West 

2000 & Supp. 2010), and two counts of willfully submitting false 

and fraudulent claims for payment from Medicaid, and aiding and 

abetting, in violation of 18 U.S.C. §§ 2, 1347 (2006). Miles’ 

counsel has filed a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), arguing that the district court erred in 

calculating the loss amount attributable to Miles, but 

recognizing that because Miles’ plea agreement contained an 

appellate waiver, this court may not entertain her appeal. 

Miles was informed of her right to file a pro se supplemental 

brief, but has not done so. The Government declined to file a 

responsive brief.*

 * Because the Government elected not to file a responsive 

brief or a motion to dismiss the appeal based on the appellate 

waiver contained in Miles’ plea agreement, this court has 

conducted an Anders review. See United States v. Poindexter, 

492 F.3d 263, 271 (4th Cir. 2007) (recognizing that the 

Government may file a responsive brief raising the appellate 

waiver issue or do nothing and allow this Court to perform the 

Anders review). 

 We affirm the district court’s judgment.
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After United States v. Booker, 543 U.S. 220 (2005), 

this court reviews a sentence for reasonableness, using an abuse 

of discretion standard of review. Gall v. United States, 552 

U.S. 38, 51 (2007). The first step in this review requires the 

court to ensure that the district court committed no significant 

procedural error. United States v. Evans, 526 F.3d 155, 161 

(4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

§ 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence-including an explanation for any deviation from the 

Guidelines range.” Gall, 552 U.S. at 51. 

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

court, we review for abuse of discretion” and will reverse 

unless we can conclude “that the error was harmless.” United 

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). When 

reviewing the district court’s Guidelines range calculation, 

this court reviews the district court’s factual findings for 

clear error and its legal interpretation of the Guidelines de 

novo. See United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 

2000). 
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We discern no error in Miles’ sentence. Under U.S. 

Sentencing Guidelines Manual (“USSG”) § 2B1.1 (2009), “loss” is 

the greater of actual loss or intended loss. USSG § 2B1.1 cmt. 

n.3(A) (2009). Actual loss is “the reasonably foreseeable 

pecuniary harm that resulted from the offense,” and intended 

loss is “the pecuniary harm that was intended to result from the 

offense.” USSG § 2B1.1 cmt. n.3(A)(i)-(ii) (2009). In making 

loss calculations, the sentencing court is instructed to hold 

the defendant “responsible for the amount of loss which was 

intended, not the actual loss ultimately sustained[.]” United 

States v. Loayza, 107 F.3d 257, 266 (4th Cir. 1997). In fact, 

this court has explicitly held in a mail fraud case involving 

Medicare and Medicaid overbilling that the “Guidelines permit 

courts to use intended loss in calculating 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, 502 (4th Cir. 

2003).

A sentencing court must make only a “reasonable 

estimate of the loss, given the available information.” Id. at 

503 (internal quotation marks omitted); see USSG § 2B1.1, cmt. 

n.3(C). Moreover, a sentencing enhancement need only be 

supported by a preponderance of the evidence. Miller, 316 F.3d 

at 503. We have reviewed the evidence regarding loss presented 
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to the district court and have considered Miles’ arguments and 

find no error with respect to the district court's loss

calculation. 

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. We therefore 

affirm the district court’s judgment. This court requires that 

counsel inform Miles, in writing, of her right to petition the 

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

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 representation. Counsel’s 

motion must state that a copy thereof was served on Miles. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED