951 F.2d 1261
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
David SCHWARTZ, Defendant-Appellant.
No. 91-1041.
United States Court of Appeals, Tenth Circuit.
Dec. 20, 1991.
Before SEYMOUR and TACHA, Circuit Judges, and BRIMMER, District Judge.*
ORDER AND JUDGMENT**
TACHA, Circuit Judge.
This appeal arises from a sentence imposed upon defendant David Schwartz after a plea agreement. Defendant appeals on the grounds that the district court erred in applying the sentencing guidelines in determining the amount of loss to be taken into account in computing his sentence. The district court calculated the loss between $2 million and $5 million and applied Guidelines § 2F1.1(b)(1)(K). Defendant argues that the evidence in the case does not support this application of the guidelines and computation of the loss. We exercise jurisdiction under 18 U.S.C. § 3742(a)(2) and affirm.
The district court in this case applied correctly the precedent in this Circuit for determining the amount of the loss in a case involving fraud and deceit. In United States v. Smith, No. 91-6096, 1991 WL 236241 (10th Cir. Nov. 15, 1991), we held that "where actual loss is less than the loss the defendant intended to inflict, intended or probable loss may be considered." This record is replete with sufficient evidence to support the calculation of the intended loss in which defendant was involved at a point somewhere between $2 million and $5 million. Therefore, we hold that the district court did not err either in its application of the guidelines or in the computation of the loss. AFFIRMED.
The Honorable Clarence A. Brimmer, Chief Judge, United States District Court for the District of Wyoming, sitting by designation
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
