                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                    December 6, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                   No. 04-11378
                                 Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

RICHARD KEITH HARMON,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 4:04-CR-82-ALL
                          --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Richard Keith Harmon appeals his sentence following his

guilty plea to mail fraud and aiding and abetting.            Harmon was

sentenced to 18 months of imprisonment and three years of

supervised release and ordered to pay $95,907.47 in restitution.

     Harmon asserts that his sentence is invalid in light of

United States v. Booker1 because it was enhanced by facts neither

charged in the indictment, found by a jury, nor admitted by



      *
        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opinion should not be published and is not precedent except under the limited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.
     1
         125 S.Ct. 738 (2004).
                                  No. 04-11378
                                       -2-

Harmon.      As the Government concedes, there was error and Harmon

preserved the issue by arguing in the district court that his

sentence violated Blakely v. Washington.2            When a Booker error is

preserved, this court will vacate and remand unless the

Government shows that the error was harmless beyond a reasonable

doubt.3     The Government has carried that burden.          At sentencing,

the court granted a downward departure, giving it almost

unlimited discretion to choose a sentence.4            Furthermore, Judge

McBryde carefully explained during a telephone conference that

“[m]y view on [any Booker issue] is I really didn’t follow the

guidelines in this case.         I went below the guidelines so in this

particular case it turns out I just considered the guidelines as

being advisory.”       He also stated that “in this particular case if

there was a Booker error it was certainly a harmless one because

I didn’t pay any attention to the guidelines.”             Thus, the record

demonstrates beyond a reasonable doubt that the Booker error did

not affect Harmon’s sentence.5

      Harmon also asserts that the district court erred in its

calculation of the amount of loss under the Sentencing

Guidelines.      We review the court’s interpretation or application

of the Guidelines de novo and its factual findings, such as a

      2
          542 U.S. 296 (2004).

      3
          United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).
      4
          United States v. Alvarez, 51 F.3d 36, 40-41 (5th Cir. 1995).
      5
        See United States v. Sealed Appellant 1, No. 04-41079 (5th Cir. Aug.
16, 2005) (unpub.).
                                  No. 04-11378
                                       -3-

calculation of loss, for clear error.6             Because $657,000 was the

total amount of valid claims submitted by the vendors to Harmon,

claims Harmon did not to pay, it is a reasonable estimate of the

amount of loss as it is the dollar amount unlawfully taken and

placed at risk by Harmon.7         The vendors were victims of Harmon’s

crime,8 and that a third-party insurer reimbursed the vendors

does not mitigate “loss” under the Guidelines - Harmon still took

the money.9      Furthermore, it was not clear error for the district

court to conclude that U.S.S.G. § 2B1.1 cmt. n.3(E)(i) does not

help Harmon because he knew or should have known that the

Government or his victims had discovered or were about to

discover his offenses long before he began to repay the third-

party insurer.

     Finally, Harmon contends that the district court erred in

ordering restitution.         The Mandatory Victims Restitution Act

(MVRA) authorizes a district court to order restitution to

victims of certain offenses, including mail fraud.10              Restitution

under the MVRA can only be for victims of the offense of

conviction, unless the defendant agrees otherwise in a plea


     6
          United States v. Whitlow, 979 F.2d 1008, 1012 (5th Cir. 1992).
     7
          See United States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997).
     8
          U.S.S.G. § 2B1.1.
     9
        See United States v. Wilson, 980 F.2d 259, 262 (4th Cir. 1992)
(holding that loss includes amount recovered from a third-party guarantor
because, like restitution, it is money returned which was previously
wrongfully taken).
     10
          18 U.S.C. § 3663A(a)(1),(c)(1)(A)(ii).
                                 No. 04-11378
                                      -4-

agreement or if a fraudulent scheme is an element of the offense

of conviction.11      Not only were the vendors victims of the

offense of conviction here, but Harmon agreed in a plea agreement

that he engaged in a fraudulent scheme and that he would pay

restitution to members of the “community” for conduct “not

limited to that arising from the offense of conviction alone.”

Thus, restitution was proper under the MVRA.            And even though a

court must reduce restitution by any amount the victim received

as part of a civil settlement,12 the court reduced restitution by

that amount here - it held Harmon responsible only for that

amount of money which, had Harmon never committed a crime, the

vendors never would have lost.

     For the foregoing reasons, Harmon’s sentence is AFFIRMED.




     11
          Id.; United States v. Cochran, 302 F.3d 279, 289-90 (5th Cir. 2002).
     12
        United States v. Cluck, 143 F.3d 174, 180 n.9 (5th Cir. 1998) (citing
United States v. Sheinbaum, 136 F.3d 443, 449-50 (5th Cir. 1999)).
