     Case: 11-10101     Document: 00511663358         Page: 1     Date Filed: 11/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 11, 2011
                                     No. 11-10101
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRYAN K. BENSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-148-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Bryan K. Benson appeals the loss and restitution
amounts affecting his sentence for making a false claim against the United
States. We affirm.
        Benson, as co-owner of BNS Wholesale (BNS), won several “bid without
exception” contracts with the United States Department of Defense (DOD) to
provide a number of very specific products. Many were essential to weapons
performance or the lives and safety of military personnel. BNS nevertheless

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-10101

furnished counterfeit parts, parts made by manufacturers other than those
specified by the contracts, or surplus parts rather than newly manufactured
parts. The presentence report noted that the DOD ordered the nonconforming
parts removed from inventory. The PSR calculated the loss to the government,
and the corresponding amount of restitution at $342,244.78, which was the total
value of the contracts.
      Benson did not object to the loss and restitution calculation until the
sentencing hearing, when he asserted that he should get credit for the actual
value of the goods he provided to the government, even though they were not in
conformance with contract requirements.              He offers his cost for the
nonconforming parts as a proxy for the actual value of those parts to the
government.
      The district court noted that Benson’s objection to the loss amount came
too late for the government or the Probation Officer to respond, but it allowed
Benson to argue the issue as a ground for a variance or departure from the
guidelines sentence. The court concluded that $342,244.78, the full price paid
by the government, was the proper restitution amount.
      The government asserts that the proper standard of review is “plain error”
because Benson did not make timely objections to the PSR as required by
Federal Rule of Criminal Procedure 32(f)(1). See United States v. Jeffries, 587
F.3d 690, 691 n.1 (5th Cir. 2009). Benson counters that the district court ruled
on the merits of his objection so that his claim was preserved for appeal, see id.
We need not resolve the issue, however, because Benson’s claims fail even under
the standards of review that he advocates.
      We review the amount of loss for clear error but the methodology of the
calculation de novo. United States v. Murray, 648 F.3d 251, 254 (5th Cir. 2011).
“A factual finding is not clearly erroneous as long as it is plausible in light of the
record read as a whole.” United States v. McMillan, 600 F.3d 434, 457-58 (5th
Cir. 2010). The district court was required to make only a reasonable estimate

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                                  No. 11-10101

of the loss. Murray, 648 F.3d at 255; § 2B1.1, comment. (n.3(C)). Generally,
“loss is the greater of actual loss or intended loss,” and actual loss includes
“reasonably foreseeable pecuniary harm.” § 2B1.1, comment. (n.3(A)(i)). The
defendant’s gain may be used “as an alternative measure of loss only if there is
a loss but it reasonably cannot be determined.” Id. (n.3(B)).
      Benson has failed to show that the district court committed any legal error
in declining to use his profit as the measure of the government’s loss. None of
the decisions he cites hold that the value of nonconforming goods in a criminal
fraudulent-claim case must be set off against the government’s losses. The PSR
formulated a facially reasonable estimate of damages by reporting that the
government paid $342,244.78 for parts which did not meet its exact
specifications and which were removed from the supply inventory.
      Even if Benson were correct that, as a matter of law, there should be an
offset for the value of goods received and retained by the government, his
contention fails on factual grounds. Benson argued in the district court only that
some of the parts he provided were made by the specified manufacturers, that
none of the parts failed, and that the government “got something” for its money.
He also suggests, for the first time on appeal, that the parts were not actually
“defective” or inferior to those specified. The government contends, also for the
first time on appeal, that the record confirms that it did not retain the deficient
parts or receive “fair market value” for them because they had to be removed
from the supply chain.
      The PSR noted that the deficient products were “removed,” consistent with
the government’s assertions. The PSR is generally presumed accurate “and may
be adopted by the district court without further inquiry if the defendant fails to
demonstrate by competent rebuttal evidence that the information is materially
untrue, inaccurate or unreliable.” United States v. Carbajal, 290 F.3d 277, 287
(5th Cir. 2002) (internal quotation marks and citation omitted).           Benson
presented no rebuttal evidence in the district court to show how many parts

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                                  No. 11-10101

actually conformed to the contract specifications or were retained by the
government, and the record established only what he paid for the nonconforming
parts, not what their actual value was to the government. Benson failed to show
that the district court’s estimate of loss was unreasonable, or clearly erroneous,
or that the PSR’s factual findings were wrong or unreliable. The challenge to the
loss amount lacks merit. See Murray, 648 F.3d at 254; McMillan, 600 F.3d at
457-58.
      Benson’s challenge to his restitution order also fails. “A restitution award
is reviewed for an abuse of discretion.” United States Crawley, 533 F.3d 349, 358
(5th Cir. 2008). “A trial court abuses its discretion when its ruling is based on
an erroneous view of the law or a clearly erroneous assessment of the evidence.”
Id. (internal quotation marks and citation omitted). Accordingly, the amount of
the restitution is reviewed for clear error. United States v. Beydoun, 469 F.3d
102, 107 (5th Cir. 2006); United States v. Cihak, 137 F.3d 252, 264 (5th Cir.
1998).
      Restitution is tied to the loss suffered by the victim and “not the
defendant’s gain from his illegal conduct.” United States v. Arledge, 553 F.3d
881, 899 (5th Cir. 2008). Benson agreed that the extent of his restitution
obligation would not be limited to his single count of conviction but could include
his total offense conduct. See 18 U.S.C. § 3663(a)(3). As the amount of loss
found by the district court was not clearly erroneous, the restitution order was
not an abuse of discretion. See Crawley, 533 F.3d at 358; Cihak, 137 F.3d at 264.
      The judgment of the district court is AFFIRMED.




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