United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3773

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Sheryl Brown, *

* [UNPUBLISHED]

Appellant. *

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Submitted: September 7, 2005

Filed: September 27, 2005

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Before ARNOLD, FAGG, and SMITH, Circuit Judges.

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PER CURIAM.

Sheryl Brown challenges the amount of restitution and the sentence imposed

by the district court upon her guilty plea to mail fraud, in violation of 18 U.S.C.

§§ 1341 and 1346. From February to December 2003, while still on probation from

a 1993 theft conviction in Texas, Brown embezzled $115,200.96 from her employer

Park Midwest Commercial Real Estate (Midwest). At sentencing in October 2004,

the district court calculated a Guidelines imprisonment range of 15-21 months;

imposed a sentence of 15 months imprisonment, to be served consecutively to

whatever sentence Brown received on her Texas probation violation, and 3 years

supervised release; and ordered Brown to pay $125,000 in restitution--$115,200.96
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in embezzled funds, $66 for copies of bank-deposit records, and $9,733.04 in staff

investigation costs--to Midwest. On appeal, Brown argues that the district court erred

in including Midwest’s investigation costs in the restitution amount without a detailed

accounting of such costs, in making her federal sentence consecutive to her

probation-violation sentence, and in sentencing her under a mandatory Guidelines

scheme.

Brown does not dispute that she owes at least $115,266.96 in restitution or that

under 18 U.S.C. § 3663A(b)(4) (providing for reimbursement to victim of expenses

incurred during participation in investigation or prosecution of offense), Midwest’s

investigation costs were properly includable in the restitution amount. Rather she

takes issue with the $9,733.04 amount. We conclude that the district court did not

clearly err in ordering partial restitution of Midwest’s investigation costs based on

cost estimates in a sworn affidavit from Midwest’s chief financial officer, in which

the officer stated that Midwest had expended $25,000 in staff investigation costs

reconstructing its financial records in order to identify and correct the numerous

falsified transactions Brown had made. Cf. United States v. Porter, No. 04-4082,

2005 WL 1862375, at *3 (8th Cir. Aug. 8, 2005) (no clear error in district court’s

$80,000 restitution calculation where government presented declaration of mail-fraud

victim’s husband, in which husband stated that he sent defendant two checks on

behalf of his wife, totaling $80,000, and husband had firsthand knowledge of family’s

financial transactions); United States v. Moyer, 313 F.3d 1082, 1087 (8th Cir. 2002)

(finding no clear error where ordered restitution equaled amount that executive from

victim bank provided as amount that bank had lost on loan). 

As to Brown’s sentence, we conclude that the district court erred in sentencing

her under a mandatory Guidelines scheme, see United States v. Booker, 125 S. Ct.

738, 756-57 (2005) (holding Guidelines to be only advisory), and Brown preserved

this issue at sentencing by raising Blakely v. Washington, 542 U.S. 296 (2004), see

United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (Booker error
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preserved by, inter alia, raising Blakely), petition for cert. filed, (U.S. July 27, 2005)

(No. 05-5547)). We thus review for harmless error. See Unites States v. Haidley,

400 F.3d 642, 644-45 (8th Cir. 2005). We are left with “grave doubt” as to whether

the error was harmless: Brown was sentenced at the bottom of the applicable

Guidelines range and we cannot say with confidence that the sentence would have

been the same under an advisory Guidelines scheme. See id. Accordingly, we

remand for resentencing.

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