United States of America, Plaintiff-appellee, v. David Schwartz, Defendant-appellant, 951 F.2d 1261 (10th Cir. 1991)

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.