                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              April 2, 2008
                               No. 07-14308                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-00005-CR-HL-7

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

W. LEE PATRICK, JR.,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                                (April 2, 2008)

Before BARKETT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     W. Lee Patrick, Jr., appeals his 65-month sentence for embezzling and
conspiring to embezzle from an organization receiving federal funds, 18 U.S.C.

§§ 371, 666, as well as the district court’s order requiring him to pay $408,265.14

in restitution.

       Patrick argues that the district court erred when it imposed a 65-month term

of imprisonment after finding that a loss amount of $408,265.14 was attributable to

him and due as restitution. He contests the loss amount arguing that it was not

supported by specific, reliable evidence and argues that the district court made a

computation error in determining the amount of restitution.

       We review the district court’s loss determination for clear error. United

States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir. 1999). The loss amount is

defined as, inter alia, the “actual loss,” which in turn is defined as the reasonably

foreseeable pecuniary harm resulting from the offense. U.S.S.G. § 2B1.1,

comment.(n.3(A)(i)) (2005). However, in United States v. Keene, 470 F.3d 1347

(11th Cir. 2006), we held that where the district court indicates that, regardless of a

disputed guideline calculation, it would have imposed the same sentence in light of

the 18 U.S.C. § 3553(a) factors, a harmless-error analysis must be applied to avoid

“pointless reversals and unnecessary do-overs of sentence proceedings.” Keene,

470 F.3d at 1349.

       In this case, the district court explicitly stated that it would have imposed the



                                            2
same sentence regardless of the disputed guideline calculation. Moreover, we find

that the record indicates that the district court imposed a reasonable sentence after

considering the factors enumerated in § 3553(a). Thus, any guideline calculation

error was harmless. Accordingly, we affirm Patrick’s sentence.

      However, as the government concedes, the district court erroneously

attributed $65,000 in the calculation of loss to Patrick, which was contrary to the

testimony of the government’s witness at re-sentencing. Thus, we vacate the

restitution order and remand to the district court, directing the court to subtract that

amount from its restitution order.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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