In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3848

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FAYEZ ALBURAY,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 CR 235—George W. Lindberg, Judge.

____________

ARGUED FEBRUARY 17, 2005—DECIDED JULY 29, 2005

____________

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge. Fayez Alburay ran a grocery

store as well as a food stamp scam that defrauded the

United States Department of Agriculture (“USDA”) out of

more than a million dollars. His scheme landed him in

federal court, where he pleaded guilty to wire fraud, and in

federal prison, where he is serving a fifty-one-month

sentence. On appeal, he challenges his sentence, a condition

of his supervised release, and the district court’s $1,750,000

restitution award. We affirm the sentence but remand with

instructions on the supervised release and restitution issues.
2 No. 03-3848

1 Traditional food stamp coupons have been replaced by

“electronic benefit transfer cards.” The card system sends food

stamp program benefits to recipients through electronic fund

transfers, by which program benefits are added to a recipient’s

card each month. In order for the recipient to access the benefits,

he must present his card to an authorized retailer to acquire

eligible food items. Authorized retailers have a unique pointof-sale machine designed to accept these cards. Retailers then

redeem the received card benefits through additional electronic

fund transfers.

I.

Fayez Alburay owned and operated a neighborhood

grocery—as it turned out, appropriately named the Shady

Food Store—located at 11300 South Wentworth Avenue in

Chicago, Illinois. Upon Alburay’s application on behalf of

his store, the USDA authorized Shady Food to operate

under the federal food stamp program. Under the program,

Shady Food accepted food stamps or the modern electronic

equivalent thereof (collectively, “food stamps” or “stamps”)1

from food stamp recipients as payment for qualified food

items such as fruit and vegetables (and not for such things

as alcohol and tobacco products). On behalf of Shady Food,

Alburay then redeemed the stamps by presenting them to

a bank that would then credit the store with a cash deposit.

The USDA would then reimburse the bank for the cash

value of the stamps.

The food stamp program no doubt generated business

volume that Shady Food may not have otherwise had. For

Alburay, however, that increase was apparently not enough.

He devised a scheme whereby he would accept food stamps

in exchange for cash instead of qualified food items (cash

that could then be used for anything). Alburay made these

unlawful exchanges worth his while by paying less than the
No. 03-3848 3

face value of the stamps. For example, someone would give

Alburay $100 worth of stamps, and Alburay would return

only $70 worth of cash. “Customers” apparently preferred

the lower cash amount instead of the higher- valued but

restricted stamps. To complete the scheme, Alburay presented the unlawfully obtained stamps to the bank and

received the full face value of the stamps, thereby fraudulently acquiring funds from the USDA. The scheme ran from

1996 to 1998, spanning twenty-five months.

Alburay’s guilt in these matters is undisputed. After the

government charged Alburay with nine criminal counts, he

pleaded guilty to one count of wire fraud, 18 U.S.C. § 1343.

In accordance with a written plea agreement, the other

counts were dismissed. The dismissed charges were two

additional counts of wire fraud, three counts of mail fraud,

18 U.S.C. § 1341, and three counts of food stamp fraud, 7

U.S.C. § 2024(c).

In the deal, the government and Alburay agreed that

U.S.S.G. § 2F1.1(a) (1997) provided the appropriate base

offense level for this case—six. They also agreed that the

offense involved more than minimal planning, and, as a

result, two more levels were added pursuant to

§ 2F1.1(b)(2)(A). In the agreement, the government stated

that it believed that the amount of loss caused by the

scheme ranged from $1,500,000 to $2,500,000, which would

carry a twelve-level enhancement under § 2F1.1(b)(1)(M).

Alburay, on the other hand, maintained that the loss figure

was lower and reserved the right to argue the issue. Also,

under the agreement, Alburay was on track for a three-level

reduction for his acceptance of responsibility under U.S.S.G.

§ 3E1.1.

Nevertheless, Alburay’s opportunity for an acceptance-ofresponsibility reduction dissipated because, after pleading

guilty and while on release pending sentencing, Alburay
4 No. 03-3848

failed to appear for his sentencing hearing. The district court

issued a fugitive warrant, and, several weeks later, he was

arrested after a routine traffic stop in Elko, Nevada.

Alburay, a citizen of Jordan, had obtained a passport under

an alias and was apparently preparing to flee the United

States to avoid his impending punishment. Alburay’s

detour was a costly mistake. At sentencing, the district court

rejected the acceptance-of-responsibility reduction and

added a two-level obstruction-of-justice enhancement for

willfully failing to appear for sentencing in accordance with

U.S.S.G. § 3C1.1.

As to the loss amount, the government submitted an

analysis to the probation officer estimating the loss at

$1,750,000, which the probation officer incorporated into her

presentence investigation report. The district court adopted

the $1,750,000 figure for purposes of sentencing and restitution. As indicated above, a loss amount of $1,750,000

equated to a twelve-level enhancement under

§ 2F1.1(b)(1)(M).

Additionally, Alburay moved for a downward departure

based upon hardships resulting from his status as a deportable alien. See, e.g., United States v. Meza-Urtado, 351 F.3d

301, 304-05 (7th Cir. 2003). The district court, however,

sua sponte entertained the idea of an upward departure,

believing that Alburay’s category I criminal history vastly

understated his past conduct and that his past conduct

coupled with his multiple aliases, social security numbers,

and driver’s licenses showed a serious disregard for the law.

Balancing these considerations, the district court denied

Alburay’s motion and opted against an upward departure.

The bottom line was a total offense level of twenty-two

(six for the base, two for more than minimal planning,

twelve for the loss, and two for obstructing justice). With the

category I criminal history, the sentencing range was forty-
No. 03-3848 5

one to fifty-one months of imprisonment, and the district

court sentenced at the top of the range. Alburay appeals the

fifty-one-month sentence.

The district court also imposed three years of supervised

release. At the sentencing hearing, the district court ordered

a special condition of supervised release concerning deportation and re-entry into the United States. The text of the

condition in the district court’s written judgment, however,

did not match up with what the district court had said on

the record. Alburay appeals the discrepancy. Additionally,

as mentioned above, the district court ordered $1,750,000 in

restitution. Alburay also challenges that figure on appeal.

II.

A.

The basis of Alburay’s sentencing challenge is

United States v. Booker, 125 S. Ct. 738 (2005). Under Booker,

the formerly mandatory federal sentencing guidelines have

become advisory. Id. at 767. A sentence violates the Sixth

Amendment, according to Booker, when it exceeds the maximum sentence authorized through the facts established by

a jury verdict or a guilty plea or by facts otherwise admitted

to by the defendant. Id. at 756. Here, Alburay’s plea authorized the base offense level as well as the enhancement

for more than minimal planning. As to the rest, they were

imposed as the result of judge-found facts under mandatory

guidelines. Alburay’s sentence thus runs afoul of the Sixth

Amendment, as interpreted by Booker, because, under the

mandatory guidelines, the sentence exceeded the maximum

sentence authorized by the facts established by the plea and

Alburay’s admissions and concessions. Id. Alburay, however, did not raise this Sixth Amendment argument before

the district court. The matter is therefore governed by the
6 No. 03-3848

plain-error standard of review and our decision in United

States v. Paladino, 401 F.3d 471 (7th Cir. 2005).

After oral argument in this appeal, we ordered a limited

remand, pursuant to Paladino, to ascertain whether the Sixth

Amendment error was prejudicial. Id. at 483-85. Specifically,

under the Paladino procedure, we retained jurisdiction over

the appeal while ordering “a limited remand to permit the

sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at

484. In our limited remand order, we postponed adjudication of Alburay’s supervised release and restitution arguments until we received the district court’s Paladino answer.

On limited remand, the district court first ordered each

party to submit a memorandum presenting their positions

on the matter. After reviewing the memoranda and the

record at the time of sentencing, the district court then

issued a statement ruling that, if required to resentence, it

would reimpose the original fifty-one-month sentence.

Given the district court’s decision, Alburay cannot show

prejudice. Id. at 483-84. Nonetheless, the district court’s

decision does not end all appellate review of the sentence.

As we held in Paladino: “If [the district court determines that

it would reimpose the original sentence], we will affirm the

original sentence against a plain-error challenge provided

that the sentence is reasonable, the standard of appellate

review prescribed by Booker.” Id. at 484 (citing Booker, 125 S.

Ct. at 765). Therefore, we now turn to reasonableness, the

“final component of the Paladino plain error equation.”

United States v. Mykytiuk, ___ F.3d ___, No. 04-1196, 2005

WL 1592956, at *1 (7th Cir. July 7, 2005).

Pursuant to Booker, the reasonableness of a sentence is

guided by the factors set forth in 18 U.S.C. § 3553(a). 125 S.

Ct. at 765-66 (“Section 3553(a) . . . sets forth numerous
No. 03-3848 7

factors that guide sentencing. Those factors in turn will

guide appellate courts . . . in determining whether a sentence is unreasonable.”). Among other items, these factors

include the nature and circumstances of the offense, the

history and characteristics of the defendant, the need for the

sentence to reflect the seriousness of the offense, the need to

promote respect for the law, the need to provide just

punishment for the offense, the need to afford adequate

deterrence to criminal conduct, and the need to protect the

public from further crimes of the defendant. 18 U.S.C.

§§ 3553(a)(1) & (2)(A)-(C). Importantly, the relevant factors

also include the now-advisory guidelines, which means that

the guidelines “must” still be “consult[ed]” and “take[n] into

account when sentencing.” Booker, 125 S. Ct. at 767 (citing 18

U.S.C. §§ 3553(a)(4) & (5)); see also United States v. George,

403 F.3d 470, 472 (7th Cir. 2005). In the end, therefore, given

the comprehensive scope of the guidelines, “[j]udges need

not rehearse on the record all of the considerations that 18

U.S.C. § 3553(a) lists; it is enough to calculate the [guideline]

range accurately and explain why (if the sentence lies

outside it) this defendant deserves more or less.” George, 403

F.3d at 472-73 (analogizing the current sentencing landscape

to sentencing after supervised-release violations for which

the guidelines have always been advisory and mandating

the same approach, post-Booker, for the guidelines as a

whole) (citing United States v. Salinas, 365 F.3d 582, 588-90

(7th Cir. 2004); United States v. Hale, 107 F.3d 526, 529-30 (7th

Cir. 1997)); see also Mykytiuk, ___ F.3d ___, 2005 WL 1592956,

at *1-2; United States v. Dean, ___ F.3d ___, No. 04-3172, 2005

WL 1592960, at *4-5 (7th Cir. July 7, 2005).

Here, in its limited remand statement, the district court

first reviewed the § 3553(a) factors and then defended its

multifaceted sentencing decision under the guidelines with

this explanation:
8 No. 03-3848

Defendant Alburay (1) committed numerous criminal

acts and engaged in more than minimal planning in

committing the offense, (2) possessed three social security numbers, two driver’s licenses, and five aliases,

(3) failed to appear for his sentencing hearing, and (4)

was found with an alias when arrested after the issuance of a fugitive warrant. When coupled with his

convictions and arrests not resolved by conviction or

acquittal, these facts establish Defendant Alburay’s

gross disregard for the law and a pattern of recidivism.

They also establish that Defendant Alburay went to

great lengths to avoid detection of his criminal behavior.

Based on the record at the time of sentencing and the

Government’s and Probation Office’s recommendations,

it was determined that Defendant Alburay’s offense

resulted in a loss amount of $1,750,000.00. This loss

amount is significant and indicative of the serious

nature of Defendant Alburay’s offense. Finally,

Defendant Alburay’s criminal history grossly understates the likelihood that he will continue to commit

financial crimes and otherwise disregard the law. In

fact, the Court initially considered departing upward

from the sentencing range proscribed by the guidelines

before settling, instead, on its [original] sentence at the

high end of the range. For all of these reasons, the Court

declares that it would reimpose its [original] sentence if

required to resentence Defendant Alburay. The fact that

the sentencing guidelines are advisory does nothing to

change this result.

The district court’s limited remand decision presents a more

than adequate justification of the sentence under the

§ 3553(a) factors. See George, 403 F.3d at 473. Here, moreover, we have a sentence within the guideline range, which

was accurately calculated. See id. Alburay’s only colorable
No. 03-3848 9

attack on the district court’s guideline determination is the

loss amount under § 2F1.1(b)(1)(M). However, as will be

shown below, the $1,750,000 figure used by district court

was accurate enough given that the range under

§ 2F1.1(b)(1)(M) is $1,500,000 to $2,500,000. For all of the

above reasons, Alburay’s fifty-one-month sentence is not

unreasonable and is therefore affirmed under the plain-error

analysis set forth in Paladino.

B.

Alburay also challenges a special condition of his supervised release pertaining to deportation and re-entry into the

United States. At the sentencing hearing, the district court

imposed the following special condition: “If deported, you

are ordered not to re-enter the United States without the

express written permission of the Attorney General of the

United States.” However, in the written judgment that

followed, the district court expanded and altered the

condition, stating: “Upon completion of his term of imprisonment, the defendant shall surrender to the immigration

authorities for immediate deportation. As a further condition of supervised release, if deported, the defendant shall

remain outside of the United States during his term of

supervised release. If deported the defendant may not

return to the United States without first obtaining the

consent of the U.S. Attorney General.”

Arguing that the written version of the condition is

inconsistent with the oral version, Alburay seeks to have the

written version replaced with the oral version. The government concedes the argument. The written version contradicts the oral version in that the oral version does not order

“immediate deportation” in any shape or form. (The written

version is also internally inconsistent: the conditional phrase
10 No. 03-3848

“if deported” does not square with the order for “immediate

deportation.”) The rule in such situations is clear: “If an

inconsistency exists between an oral and the later written

sentence, the sentence pronounced from the bench controls.” United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.

1998) (quoting United States v. Becker, 36 F.3d 708, 711 (7th

Cir. 1994)). Further, as the oral version is unambiguous,

there is no need to look beyond the oral version for any

clarification from the written version. See Bonanno, 146 F.3d

at 511-12 (quoting United States v. Daddino, 5 F.3d 262, 266

(7th Cir. 1993)). The written version is thus a nullity, not

requiring further discussion. The cleanest way to end the

matter is to remand with a corrective instruction. An

additional hearing is not required. See United States v. Maro,

272 F.3d 817, 825 (7th Cir. 2001); United States v. Parker, 101

F.3d 527, 528 (7th Cir. 1996). Accordingly, the matter is

remanded with following instruction: the district court shall

enter a corrected judgment, deleting the current written

special condition (quoted above) about deportation and reentry in its entirety and replacing it with the exact language

of the pertinent special condition (quoted above) announced

from the bench.

C.

Lastly, we turn to the district court’s restitution award,

which it derived from the government’s loss calculations. To

determine the USDA’s loss caused by a food stamp scheme,

the proper calculation is to take the total food stamp

redemptions (i.e., both the fraudulent and legitimate

redemptions) less the legitimate food stamp sales. See United

States v. Hassan, 211 F.3d 380, 383 (7th Cir. 2000) (citing

United States v. Barnes, 117 F.3d 328, 335 (7th Cir. 1997)). This

formula’s applicability to the present restitution matter is

not in dispute.
No. 03-3848 11

For the redemption figure in its calculation, the government used the amount of $2,100,000 for the twenty-five

months covering the duration of the scheme. The exact and

undisputed redemption amount is $2,106,632.08, and

Alburay has asked us to use that figure. However, while it

is unclear why the government rounded the exact amount

down to $2,100,000, the rounding actually benefitted

Alburay by reducing his restitution obligation. In the aforementioned formula, a lower redemption figure will always

yield a lower loss figure. Therefore, there is no need for us

to take issue with the government’s unexplained rounding

of the redemption figure in this appeal.

Next, the government estimated legitimate sales by using

the estimate that Alburay included on his 1996 application

to join the food stamp program—$180,000 per year. Alburay

disputes the use of that figure, but more on that point

below. The government then put the two amounts in

monthly terms. Thus, the government divided the

$2,100,0000 figure by twenty-five months to arrive at a redemption amount of $84,000 per month, and it divided the

$180,000 figure by twelve months to arrive at a legitimate

sales amount of $15,000 per month. It then determined the

monthly loss figure to be $70,000, even though $84,000 per

month in redemptions less $15,000 per month in legitimate

sales produces a monthly loss figure of $69,000. The government continues to cling to the $70,000 figure but offers

no explanation for why it used $70,000 instead of $69,000.

Finally, multiplying the $70,000 per month figure by

twenty-five months, the government arrived at a loss total

of $1,750,000.

The district court adopted the government’s loss calculations wholesale and ordered Alburay to pay $1,750,000 in

restitution. The district court did so without objection from

Alburay, who concedes that our review is thus limited to
12 No. 03-3848

plain error. See United States v. Randle, 324 F.3d 550, 555 (7th

Cir. 2003). Even under this demanding standard, however,

Alburay is entitled to some relief on account of the government’s inaccurate loss calculation. See United States v. Boyle,

10 F.3d 485, 492 (7th Cir. 1993) (“The restitution amount

must be ascertained and delineated with an accurate computation . . . . ”) (citing United States v. Lovett, 811 F.2d 979,

990 (7th Cir. 1987)). The government has given us no reason

to believe that its use of the $70,000 monthly figure, which

yielded the $1,750,000 total figure, was anything other than

an arithmetical error which increased the restitution

amount. Plugging the government’s numbers of $84,000 per

month in redemptions and $15,000 per month in legitimate

sales into the formula, the correct loss figure is $69,000 per

month or $1,725,000 for the twenty-five-month period. Thus,

the inflated $1,750,000 amount offered by the government

and adopted by the district court is a plain error that

prejudiced Alburay to the tune of $25,000. See Randle, 324

F.3d at 558 (several thousand-dollar plain error in restitution held to have affected defendant’s substantial rights).

While the erroneous amount is a tiny fraction of the total

amount owed, it is nevertheless an error deserving of

correction on remand. See id. There is, however, no need to

acquire additional information or perform further analysis.

Our computation above will suffice, and, thus, a new hearing before the district court is not required. See Maro, 272

F.3d at 825; Parker, 101 F.3d at 528. The matter is therefore

remanded with the following instruction: the district court

shall enter a corrected judgment, deleting the current

$1,750,000 restitution amount and replacing it with the

amount of $1,725,000 set forth above.

Before concluding, we briefly turn to Alburay’s complaint

about the $180,000 per year estimate for legitimate sales. The

exact legitimate sales figure is unavailable; thus, an estimate
No. 03-3848 13

2 It is also likely that his sales were inflated when the word got

out that food stamps could be exchanged for a discounted

amount of cash. Assuming the other stores were not providing

similar discounts, any comparison would be irrelevant.

had to be used. Alburay suggests a number of alternative

estimates based upon the sales of a handful of other stores

in his area of Chicago from the relevant period. His alternatives would yield a lower restitution award, in the neighborhood of $1,300,000 to $1,500,000. The trouble with Alburay’s

argument, however, is there is little reason to believe that

his suggested estimates from other selected stores are any

more reliable than the $180,000 estimate that he used for

Shady Food’s USDA application. While the other stores are

relatively close to Shady Food, they still operate at different

locations, each having its own idiosyncrasies affecting sales,

e.g., busy street versus side street. Likewise, while their

markets certainly overlapped, the stores were of differing

types, serving different segments of the marketplace, e.g.,

convenience store versus neighborhood corner grocery.

Also, the sample size (i.e., number of stores in the estimates)

is small.2

 Such matters certainly influence the reliability of

a sales estimate. It is therefore difficult to say that the

estimates based upon the other stores’ figures are better,

that is, more accurate, than Alburay’s own estimate for

Shady Food. After all, Alburay’s application estimate

pertains to the precise location and marketplace in question.

He made his application estimate in 1996, after being in

business for five months and shortly before he began

perpetrating his fraud. Moreover, he included the $180,000

annual estimate on a federal form that he signed, swore to,

and never sought to amend. Given these considerations,

using the $180,000 figure in the restitution formula was not

plainly erroneous.
14 No. 03-3848

III.

As Alburay’s fifty-one-month sentence for his food stamp

scheme is not unreasonable, we AFFIRM the sentence. However, a special condition of Albuary’s supervised release

and the amount of the restitution award require correction.

Nonetheless, a new hearing before the district court is not

required. The case is REMANDED WITH INSTRUCTIONS for the

district court to enter a corrected judgment with respect to

the special condition at issue and the restitution award as

stated above.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-29-05