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) 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.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2014

Lyle W. Cayce

Clerk

 

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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. 

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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 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, 593 (5th Cir. 2000).

AFFIRMED.

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