United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-11378
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD KEITH HARMON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-82-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Richard Keith Harmon appeals his sentence following his
guilty plea to mail fraud and aiding and abetting. Harmon was
sentenced to 18 months of imprisonment and three years of
supervised release and ordered to pay $95,907.47 in restitution.
Harmon asserts that his sentence is invalid in light of
United States v. Booker1 because it was enhanced by facts neither
charged in the indictment, found by a jury, nor admitted by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
125 S.Ct. 738 (2004).
No. 04-11378
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Harmon. As the Government concedes, there was error and Harmon
preserved the issue by arguing in the district court that his
sentence violated Blakely v. Washington.2 When a Booker error is
preserved, this court will vacate and remand unless the
Government shows that the error was harmless beyond a reasonable
doubt.3 The Government has carried that burden. At sentencing,
the court granted a downward departure, giving it almost
unlimited discretion to choose a sentence.4 Furthermore, Judge
McBryde carefully explained during a telephone conference that
“[m]y view on [any Booker issue] is I really didn’t follow the
guidelines in this case. I went below the guidelines so in this
particular case it turns out I just considered the guidelines as
being advisory.” He also stated that “in this particular case if
there was a Booker error it was certainly a harmless one because
I didn’t pay any attention to the guidelines.” Thus, the record
demonstrates beyond a reasonable doubt that the Booker error did
not affect Harmon’s sentence.5
Harmon also asserts that the district court erred in its
calculation of the amount of loss under the Sentencing
Guidelines. We review the court’s interpretation or application
of the Guidelines de novo and its factual findings, such as a
2
542 U.S. 296 (2004).
3
United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).
4
United States v. Alvarez, 51 F.3d 36, 40-41 (5th Cir. 1995).
5
See United States v. Sealed Appellant 1, No. 04-41079 (5th Cir. Aug.
16, 2005) (unpub.).
No. 04-11378
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calculation of loss, for clear error.6 Because $657,000 was the
total amount of valid claims submitted by the vendors to Harmon,
claims Harmon did not to pay, it is a reasonable estimate of the
amount of loss as it is the dollar amount unlawfully taken and
placed at risk by Harmon.7 The vendors were victims of Harmon’s
crime,8 and that a third-party insurer reimbursed the vendors
does not mitigate “loss” under the Guidelines - Harmon still took
the money.9 Furthermore, it was not clear error for the district
court to conclude that U.S.S.G. § 2B1.1 cmt. n.3(E)(i) does not
help Harmon because he knew or should have known that the
Government or his victims had discovered or were about to
discover his offenses long before he began to repay the third-
party insurer.
Finally, Harmon contends that the district court erred in
ordering restitution. The Mandatory Victims Restitution Act
(MVRA) authorizes a district court to order restitution to
victims of certain offenses, including mail fraud.10 Restitution
under the MVRA can only be for victims of the offense of
conviction, unless the defendant agrees otherwise in a plea
6
United States v. Whitlow, 979 F.2d 1008, 1012 (5th Cir. 1992).
7
See United States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997).
8
U.S.S.G. § 2B1.1.
9
See United States v. Wilson, 980 F.2d 259, 262 (4th Cir. 1992)
(holding that loss includes amount recovered from a third-party guarantor
because, like restitution, it is money returned which was previously
wrongfully taken).
10
18 U.S.C. § 3663A(a)(1),(c)(1)(A)(ii).
No. 04-11378
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agreement or if a fraudulent scheme is an element of the offense
of conviction.11 Not only were the vendors victims of the
offense of conviction here, but Harmon agreed in a plea agreement
that he engaged in a fraudulent scheme and that he would pay
restitution to members of the “community” for conduct “not
limited to that arising from the offense of conviction alone.”
Thus, restitution was proper under the MVRA. And even though a
court must reduce restitution by any amount the victim received
as part of a civil settlement,12 the court reduced restitution by
that amount here - it held Harmon responsible only for that
amount of money which, had Harmon never committed a crime, the
vendors never would have lost.
For the foregoing reasons, Harmon’s sentence is AFFIRMED.
11
Id.; United States v. Cochran, 302 F.3d 279, 289-90 (5th Cir. 2002).
12
United States v. Cluck, 143 F.3d 174, 180 n.9 (5th Cir. 1998) (citing
United States v. Sheinbaum, 136 F.3d 443, 449-50 (5th Cir. 1999)).