### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-30365 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MARY L. FRANCOIS, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:10-CR-303-1

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM: * Mary L. Francois pleaded guilty to counts 4 and 5 of a 32-count indictment charging her with wire fraud related to her activities as a mortgage broker. She h a s a p p ealed her sentence, contending that the district court erred i n determining the loss attributable to her fraudulent conduct. The district court found that the loss amount attributable to Francois was $153,359, which was the amount that Francois had redirected to her businesses

as kickback proceeds

. C iting United States v. Goss , 549 F.3d 1013 (5th Cir. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 10 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30365 Document: 00512015373 Page: 1 Date Filed: 10/10/2012No. 12-30365

2008), Francois contends that the district court should have undertaken a loanby-loan analysis of the value of any available collateral instead of focusing on the extent of her purported gain. She contends that most of the loans she brokered

are f u lly performing and that, therefore, no loss was sustained by the lenders. She contends also that any loss sustained by the lenders was not caused by her fraudulent conduct and s h o u ld not be attributed to her. There is no evidence, she argues, that she intended that the lenders would suffer a loss. In Goss , we determined that actual lo s s i n a m ortgage fraud case is “determined by deducting the value of the coll at e r al f rom the total loan amounts

. ” U

nited States v. Murray , 648 F.3d 251, 255 (5th Cir. 2011) (discussing Goss , 549 F.3d at 1017-18), cert. denied , 132 S. Ct. 1065 (2012). In the district court, Francois took the position that the actual losses could not be determined and that the total loss should be limited to the amount by which she profited from the criminal enterprise. She did not argue, as she does on appeal, that the district court should have determined the actual loss using the methodology in Goss

. Therefore, we have reviewed the issues asserted by Francois for plain

error. See United States v. Sote lo , 9 7 F

. 3d 782, 793 (5th Cir. 1996). To show plain error, Francois must show a forfeited error that is clear or obvious and that affects her substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If she makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, int e grity, or public reputation of judicial proceedings. Id. Un der th e Guidelines, financial losses are determined by using the greater of actual loss or intended loss. U.S.S.G

. § 2B1.1, comment. (n.3(A)) (2010). When there is a loss but th e a mount of the loss cannot reasonably be determined , however, the sentencing court shall determine “the gain that resulted from the offense as an alternative measure of loss.” § 2B1.1, comment. (n.3(B)). The district court i s o nly required to “make a reasonable estimate of
2 Case: 12-30365 Document: 00512015373 Page: 2 Date Filed: 10/10/2012No. 12-30365

loss,” and its findings are “entitled to appropriate deference.” United States v. Brooks , 681 F.3d 678, 713-14 (5th Cir. 2012), petitions for cert. filed (Aug. 9 and 16, 2012) (N o s . 1 2

- 5 8 12 & 12-5847); see also Goss , 549 F.3d at 1019; § 2B1.1, comment. (n.3(C)). In this case, the dist ri c t c o u rt concluded that the actual and intended amount of the loss could not be determined, and it based its loss determination

on the amount by which Francois gained from her fraudulent sche m e . After reviewing the record, we h o l d th at it was reasonable for the district court to determine the amount of the loss on that basis. See Brooks , 681 F3d at 713-14; United States v. McMillan , 600 F.3d 434, 458-59 (5th Cir. 2010) ( district court did not clearly err in determining loss at sentencing on basis of defendants’ gain from offense because amount of victims’ loss could not be reasonably calculated). Francois has not shown that the district court committed a clear or obvious error in calculating the loss based on the sums by which Francois’s businesses gained from the offense and relevant conduct. See Puckett , 556 U

. S

. at 135; § 2B1.1, comment. (n.3(A)(ii) & (B)). The judgment is AFFIRMED.

3 Case: 12-30365 Document: 00512015373 Page: 3 Date Filed: 10/10/2012