                                                   [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT           FILED
                   ________________________ U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                          No. 06-10727                OCT 30, 2006
                      Non-Argument Calendar         THOMAS K. KAHN
                    ________________________            CLERK


                 D.C. Docket No. 05-00295-CR-1-1

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                              versus


AYYUB ABDUL KHALIQ CORNELIUS
a.k.a. Musa Muhammed,
a.k.a. “I”,
a.k.a. Ayyub Christopher York,
a.k.a. Ayyub York,

                                                   Defendant-Appellant

                    ________________________

                          No. 06-10763
                      Non-Argument Calendar
                    ________________________

              D. C. Docket Nos. 05-00411-CR-01-JEC-1
                        05-00295-CR-01-JEC

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,
                                       versus

CHRISTOPHER CORNELIUS,
a.k.a. Ayyub Cornelius,

                                                                 Defendant-Appellant

                           ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                 (October 30, 2006)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

      Ayyub Abdul Khaliq Cornelius appeals his sentences in consolidated cases

involving conspiracy to commit bank fraud, bank fraud, identity theft,

identification document fraud, and possession of a firearm by a convicted felon.

Cornelius received a two-level enhancement, pursuant to U.S. Sentencing

Guidelines Manual § 2B1.1(b)(2), because the district court found that there were

more than ten victims of his fraud-related crimes. On appeal, Cornelius argues that

because the individual account holders in this case were reimbursed by their bank

within a short period of time, the district court should not have considered them

victims for enhancement purposes.

      Additionally, Cornelius alleges that the district court made a clerical error in

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listing Cornelius’ custodial sentence as eighty-four months instead of the twenty-

four months actually imposed by the court in the firearm case.

                                 Standard of Review

      We review the district court’s factual findings for clear error and its

application of the Guidelines de novo. United States v. Lee, 427 F.3d 881, 892

(11th Cir. 2005) cert. denied, Wyman v. U.S., __ U.S. __, 126 S. Ct. 1447, 164 L.

Ed. 2d 145 (2006). Additionally, we have jurisdiction to review a claim for

clerical errors in a district court’s judgment, even when it was not initially raised

below. United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).

                                      Discussion

      Section 2B1.1(b)(2)(A)(i) of the Sentencing Guidelines provides that a base

offense level should be increased two levels if the relevant offense involved ten or

more victims. The Guidelines Application Notes define “a victim” as “any person

who sustained any part of the actual loss determined under subsection (b)(1).”

U.S.S.G. § 2B1.1 cmt. n.1. See generally United States v. Inclema, 363 F.3d 1177

(11th Cir. 2004) (directing courts to read the text of the Guidelines and its

accompanying commentary together). The Guidelines further define “actual loss”

as reasonably foreseeable pecuniary harm resulting from the offense. § 2B1.1 cmt.

n.3(A)(i).



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      Cornelius argues that in interpreting the requirements of this section, we

should follow the Sixth Circuit’s reasoning in United States v. Yagar, 404 F.3d 967

(6th Cir. 2005). In Yagar, the Sixth Circuit found that individuals suffering a

monetary loss that was short-lived and immediately covered by a third party are

not victims for sentencing purposes. Id. at 971. However, in United States v. Lee,

we declined to follow the Sixth Circuit reasoning in Yagar. 427 F.3d at 894. We

found that this view did “not comport with the Guidelines” and concluded that

individuals who are able to offset their losses could still be considered victims for

Guidelines purposes. Id. at 895. We explained that the Yagar opinion did not

appear to read the actual loss provisions of the Guidelines together with the

Application Notes discussing credits against loss, which is required. Id. The credit

against loss provisions treat people recovering collateral, money, property or

services as having suffered a loss, but allow a defendant credit for that recovery.

Id. We thus found that the Guidelines recognize the existence of an initial actual

loss, even when that loss is subsequently remedied. Id. In Lee, we subsequently

also distinguished Yager on the grounds that the losses suffered by the victims

were not short-term or subject to indemnity. However, this did not detract from

our conclusion that the Guidelines allow a court to find an actual loss by a

reimbursed party, and therefore treat that party as a victim. We thus find no



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reversible error in the district court decision.

      Cornelius also argues that there is a clerical error in the judgment and

commitment order in his firearm case as he was orally sentenced to twenty-four

months imprisonment, rather than the listed eighty-four months. The government

concedes the clerical error in the firearm judgment and asks that we remand the

claim with instructions to correct the error.

      Federal Rule of Criminal Procedure 36 states that “[a]fter giving any notice

it considers appropriate, a court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an error in the record arising

from oversight or omission.” “Where there is a discrepancy between the orally

imposed sentence and the written order of judgment . . . , the oral sentence

controls. United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990).

Accordingly, we remand Cornelius’s firearm case to the district court under Fed.

R. Crim. P. 36 so that it can correct the judgment to state a prison sentence of

twenty-four months.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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