### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 60228 Summary Calendar

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) pay ments intended fo r 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 o f another . . . any record, voucher, money, o r 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* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 5, 2014 Lyle W. Cay ce Clerk Case: 14-60228 Document: 00512859169 Page: 1 Date Filed: 12/05/2014No. 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 restit ution 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, incre ase the offense level as follows: More than $70,000 [, but less than $120,000,] add 8”.)

. As referenced above, f actual 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, “ t o 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 clear ly 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 G uidelines

- sentencing ra nge. Thus , assuming arguendo the court clear ly erred , it was nevertheless harmless. See United States v. Richardson , 713 F.3d 232, 237 (5th Cir.), cert.

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denied , 134 S. Ct. 230 (2013); United States v. Richardson , 676 F.3d 491, 512 (5th Cir. 2012). Additionally, Berry contends the res titution award exceeds the loss caused . She asserts the district court ignor ed 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). T he court was aware of conflicts in the evidence presented at the sentencing hearing but, taking into account the demeanor an d credibility of the witnesses among oth er things, resolved them in favor of the G overnment

. 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, 593 (5th Cir. 2000). AFFIRMED.

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