PER CURIAM:
Pursuant to a written plea agreement, Michael R. Bennett pled guilty to three counts of wire fraud, in violation of 18 U.S.C. § 1343 (2006) (Counts One, Fourteen, and Fifteen), and one count of making a false statement, in violation of 18 U.S.C. § 1001(a)(3) (2006) (Count Twenty-One). We affirm.
The Government charged Bennett based on his scheme to defraud employers and background screening companies of money and property by misrepresenting to those victims that he and his company, Workplace Compliance, Inc. ("WCI"), provided drug testing services in compliance with U.S. Department of Transportation ("DOT") regulations. Specifically, Bennett and WCI fraudulently purported to provide drug testing services to employers covered by DOT regulations 49 C.F.R. § 40.1 -.413 (2010). Those regulations require that covered workers submit to drug screening reviewed by a licensed physician trained in substance abuse and designated as the Medical Review Officer ("MRO"). 49 C.F.R. §§ 40.3 and 40.121. Under the regulations, if a drug screening returns a non-negative result, the MRO receives the result, interviews the worker, and determines whether the result indicates illicit drug use. Here, the doctor identified as the MRO for WCI neither held certification as an MRO nor acted as MRO for WCI. Rather, Bennett — who is not a physician — reviewed drug screenings and performed all duties required of the MRO.
Generally, this court reviews a sentence for reasonableness, using an abuse of discretion standard of review.
The Guidelines direct courts to determine a defendant's offense level for fraud commensurate with the amount of loss involved in the fraud.
On appeal, Bennett asserts that the district court committed procedural sentencing error in its calculation of loss and therefore erred in establishing his recommended Guidelines range. He contends that because some of the drug testing he contracted to perform did not require DOT compliance, victims did not suffer a loss as to those tests. Bennett concedes that under USSG § 2B1.1, loss may be actual, intended, or estimated loss to victims, or gain to defendant. USSG § 2B1.1 cmt. n.3(A), (B). He asserts that in this instance, loss is only the financial gain he received for DOT-regulated testing that he failed to provide. Bennett further argues that because the Government failed to submit evidence denoting what quantum of testing was DOT-regulated as compared to unregulated, the district court had no factual basis on which to base its loss calculation for purposes of determining his offense level.
Dawkins, a former federal employee, was required to provide periodic certification to retain disability benefits. 202 F.3d at 713. Dawkins fraudulently certified that he was unemployed, even though he received payment as a courier in a drug conspiracy. The trial court calculated loss for sentencing purposes as the total payment Dawkins received from the government while participating in the drug conspiracy, citing former USSG § 2F1.1 (deleted by 2001 consolidation with § 2B1.1). This court disagreed, concluding that "the loss was only the amount fraudulently claimed" rather than the full amount of payment.
We are persuaded by the Government's brief that Bennett's reliance on
Accordingly, we conclude the district court did not plainly err when it adopted the PSR's calculation of loss for purposes of determining Bennett's offense level. We therefore affirm Bennett's conviction and sentence. 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.