United States v. Vicki Berry ( 2014 )

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Case: 14-60228 Document: 00512859169 Page: 1 Date Filed: 12/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 5, 2014
No. 14-60228
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
VICKI L. BERRY,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CR-74-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Vicki L. Berry pleaded guilty to theft, over a period of approximately 12
years, of Social Security Administration (SSA) payments intended for the
benefit of her minor sons, a violation of 18 U.S.C. § 641 (“Whoever embezzles,
steals, purloins, or knowingly converts to his use or the use of another . . . any
record, voucher, money, or thing of value of the United States or of any
department or agency thereof . . . [s]hall be fined under this title or imprisoned
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 14-60228 Document: 00512859169 Page: 2 Date Filed: 12/05/2014
No. 14-60228
not more than ten years . . . .”). She challenges her sentence of, inter alia, six
months’ imprisonment, as well as being required to pay approximately $82,000
in restitution to the SSA.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the court must still
properly calculate the advisory Guidelines-sentencing range for use in deciding
on the sentence to impose. Gall v. United States,

552 U.S. 38

, 51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez,

517 F.3d 751

, 764 (5th Cir. 2008).
Berry claims the court committed procedural error by miscalculating the
loss caused by her offense, pursuant to Guideline § 2B1.1(b)(1) (“If the loss
exceeded $5,000, increase the offense level as follows: More than $70,000
[, but less than $120,000,] add 8”.).            As referenced above, factual
determinations in calculating loss-amount are reviewed for clear error. United
States v. Murray,

648 F.3d 251

, 254 (5th Cir. 2011) (citing United States v.
Setser,

568 F.3d 482

, 496 (5th Cir. 2009)). But, “to the extent the district court’s
methodology for calculating losses involves an application of the [G]uidelines,
we review such legal conclusions de novo”.

Id. (citing United

States v. Goss,

549 F.3d 1013

, 1016 (5th Cir. 2008). Pursuant to our review of the record, the
court did not clearly err in determining the loss amount. E.g., United States v.
Simpson,

741 F.3d 539

, 556–57 (5th Cir.), cert. denied,

134 S. Ct. 2320

(2014).
In any event, the district court stated it would select the same sentence,
for the same reasons, even if it miscalculated the Guidelines-sentencing range.
Thus, assuming arguendo the court clearly erred, it was nevertheless
harmless. See United States v. Richardson,

713 F.3d 232

, 237 (5th Cir.), cert.
2
Case: 14-60228    Document: 00512859169     Page: 3   Date Filed: 12/05/2014
No. 14-60228
denied,

134 S. Ct. 230

(2013); United States v. Richardson,

676 F.3d 491

, 512
(5th Cir. 2012).
Additionally, Berry contends the restitution award exceeds the loss
caused. She asserts the district court ignored evidence supporting her position.
The propriety of a restitution award is reviewed for abuse-of-discretion. United
States v. Hughey,

147 F.3d 423

, 436 (5th Cir. 1998) (citation omitted).
The record shows the court did not abuse its discretion. E.g., United
States v. Aubin,

87 F.3d 141

, 150 (5th Cir. 1996); see also 18 U.S.C. § 3664(a).
The court was aware of conflicts in the evidence presented at the sentencing
hearing but, taking into account the demeanor and credibility of the witnesses
among other things, resolved them in favor of the Government. Further, Berry
fails to show that, in resolving the conflicting evidence, the court relied on
information that was materially untrue. E.g., United States v. Ocana,

204 F.3d 585