                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2672
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Danny Joe Dillard,                      *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: May 9, 2011
                                Filed: August 3, 2011
                                 ___________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

       Danny Joe Dillard pled guilty to four counts of knowingly filing false
statements with the Railroad Retirement Board (RRB) in violation of 45 U.S.C.
§ 231l(a). The district court1 sentenced Dillard to 2 months imprisonment and ordered
him to pay $52,691.47 in restitution to the RRB under the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. §§ 3663A-3664 . Dillard appeals the order of
restitution, and we affirm.


      1
       The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
                                            I.

       In February 1999, Dillard suffered injuries while working for Union Pacific
Railroad. After determining that Dillard could no longer perform his work as a
conductor, the RRB awarded him an occupational disability annuity. As a condition
of receiving the annuity, Dillard was required by law to report certain information
regarding any employment and income while on disability. See 45 U.S.C.
§ 231a(a)(3); 20 C.F.R. § 220.16. Dillard failed to disclose to the RRB that he owned
a business, occasionally undertook additional employment, and received income from
these ventures.

       Dillard pled guilty to four counts of knowingly providing false statements to the
RRB during 2005 and 2006. In addition to other penalties, the district court ordered
Dillard to pay restitution of $52,691.47—the aggregate amount of benefits the RRB
paid to Dillard during 2005 and 2006. Dillard appeals, arguing that the district court
erred in finding that he owed any restitution to the RRB.

                                           II.

       We review the district court’s finding as to the proper amount of restitution for
clear error. United States v. Statman, 604 F.3d 529, 535 (8th Cir. 2010). The MVRA
provides that the “court shall order restitution to each victim in the full amount of each
victim’s losses as determined by the court.” 18 U.S.C. § 3664(f)(1)(A). A victim is
limited to restitution for the “actual losses” suffered. United States v. Petruk, 484
F.3d 1035, 1038 (8th Cir. 2007).

      Ordinarily, when the defendant receives benefits from a government agency
through fraud, the “actual loss” to the agency “is the amount paid minus the amount
that would have been paid in the absence of fraud.” Id. (emphasis omitted). Dillard

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argues that the RRB’s actual loss is zero because had he not filed a false statement, the
agency would have paid him the same amount. However, when an annuitant fails to
comply with RRB regulations—as Dillard admits he did in 2005 and 2006—his
entitlement to benefits ceases. See 45 U.S.C. § 231a(a)(3). Even if Dillard could have
met separate, additional requirements of the RRB and received benefits, when he acted
illegally he lost his entitlement to receive an occupational disability annuity under
federal law. Accordingly, the district court correctly found that the RRB’s “actual
loss” is $52,691.47.

      In addition, we modify the judgment in this case to correct a clerical error;
Dillard is guilty of violating 45 U.S.C. § 231l(a), rather than 45 U.S.C. § 231(1)(a).
See 28 U.S.C. § 2106 (providing that appellate courts may modify any judgment
brought before it for review).
                                          III.

       We affirm the sentence imposed by the district court and modify the judgment
to reflect that Dillard is guilty of violating 45 U.S.C. § 231l(a).
                          ______________________________




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