                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 06-3350 & 06-3351
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

VERNON BONNER AND
MARIA MAGANA-BONNER,
                                             Defendants-Appellants.
                          ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 01 CR 670—George W. Lindberg, Judge.
                          ____________
    ARGUED SEPTEMBER 18, 2007—DECIDED APRIL 14, 2008
                          ____________


  Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
   WILLIAMS, Circuit Judge. For seventeen years, Vernon
Bonner and his wife, Maria Magana-Bonner, lied to the
federal government and received Social Security benefits
for non-existent medical conditions and non-existent
children. During this time, Maria Magana-Bonner also
lied to obtain federal and state higher-education grants. On
August 1, 2002, a jury convicted both defendants on
multiple counts of wire fraud and theft of government
funds, and convicted Maria of mail fraud and theft of
2                                      Nos. 06-3350 & 06-3351

educational funds.1
  The defendants do not challenge their convictions on
appeal; rather, they challenge various aspects of restitution
payments they are required to make under the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. In
particular, the defendants claim that restitution under
the MVRA is a criminal punishment and that the facts
underlying the restitution amount must be proven beyond
a reasonable doubt to a jury. Vernon Bonner also claims
the district court improperly calculated his advisory
guidelines range by relying on the loss he intended to
cause the government rather than the loss actually suffered
by the government.
  These arguments lack merit. This court has consistently
held that restitution under the MVRA is not a criminal
punishment and does not need to be proven to a jury. And
the district court properly relied on intended loss in
calculating Vernon Bonner’s advisory guidelines range.
Therefore, we affirm the district court’s awards of restitu-
tion. We also remand both cases so the district court can
correct certain clerical errors in the judgments.


                     I. BACKGROUND
  This is the third time these cases are before us. Initially,
after the defendants were convicted, the district court
imposed terms of imprisonment and added a special
condition to the defendants’ supervised releases making
them ineligible to receive certain federal benefits until they


1
   For a more complete description of the facts, see United States
v. Bonner, Nos. 02-4272 & 03-1288 (7th Cir. May 20, 2005)
(unpublished).
Nos. 06-3350 & 06-3351                                       3

paid restitution. On appeal, we vacated this special condi-
tion and also ordered a limited remand in accordance
with the procedures set forth in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), which requires the sen-
tencing judge to determine whether he would have sen-
tenced the defendants differently had the matter been
decided after United States v. Booker, 543 U.S. 220 (2005). See
Bonner (7th Cir. May 20, 2005) (unpublished).
  After the original sentencing judge recused himself,
the cases were reassigned to the present district judge,
who found that he could not make the determination
required under Paladino, since he was not the one who had
previously sentenced the defendants. He merely entered an
amended judgment and commitment order for each
defendant removing the special conditions that had
restricted them from obtaining federal benefits. The
defendants then moved for this court to order the dis-
trict court to carry out the limited remand. We denied that
motion, vacated the defendants’ sentences, and remanded
to the district court for a full resentencing. United States
v. Bonner, 440 F.3d 414, 415 (7th Cir. 2006).
  On July 26, 2006, the district court re-sentenced Vernon
to 78 months’ imprisonment and ordered restitution of
$434,617.30. A week later, the court re-sentenced Maria
to 63 months’ imprisonment and ordered restitution of
$459,616.30.


                       II. ANALYSIS
  A. The defendants are not entitled to a jury trial on
     facts supporting the restitution order.
  The defendants claim that the district court erred by
ordering restitution without accounting for various
4                                     Nos. 06-3350 & 06-3351

protections set forth in Apprendi v. New Jersey, 530 U.S. 466
(2000), Blakely v. Washington, 542 U.S. 296 (2004), and
Booker, 543 U.S. 220 (2005). These cases hold that facts
underlying certain criminal punishments must be proven
beyond a reasonable doubt to a jury. The defendants
claim that restitution is in fact a criminal punishment and
these protections apply. In making this claim, the defen-
dants rely on Pasquantino v. United States, 544 U.S. 349,
365 (2005), which mentions in passing, “The purpose of
awarding restitution [under the MVRA] in this action is
not to collect a foreign tax, but to mete out appropriate
criminal punishment for that conduct.” The defendants
also point to restitution awards in other contexts in
which courts have suggested restitution is a criminal
punishment. See Kelly v. Robinson, 479 U.S. 36, 46-49, 49 n.10
(1986) (describing restitution imposed as part of a state
probationary criminal sentence as a “penalty” that could
not be discharged in bankruptcy proceedings); United
States v. Fountain, 768 F.2d 790, 800-01 (7th Cir. 1985)
(describing restitution under the federal Victim and
Witness Protection Act as a “traditional criminal remedy”).
  The problem with the defendants’ argument is that we
have rejected it many times, even after Pasquantino
was decided. See, e.g., United States v. Lagrou Distrib. Sys.,
466 F.3d 585, 593 (7th Cir. 2006) (“We reiterate: restitution
is not a penalty for a crime for Apprendi purposes since
restitution for harm done is a classic civil remedy that is
administered for convenience by the courts that have
entered criminal convictions.” (internal quotation marks
omitted)); United States v. Seals, 419 F.3d 600, 610 (7th Cir.
2005); United States v. George, 403 F.3d 470, 473 (7th Cir.
2005). Restitution under the MVRA is not a criminal
punishment, at least not in this circuit. But see, e.g., United
Nos. 06-3350 & 06-3351                                     5

States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006)
(“[C]onsistent with the view of the majority of the Circuits
to have addressed this issue, [we reaffirm] that restitu-
tion ordered as part of a criminal sentence is criminal
rather than civil in nature.”).
  Moreover, even if we were to reconsider our previous
decisions and recharacterize restitution as a criminal
punishment, Apprendi and its progeny would not require
us to invalidate the defendants’ sentences. For example,
the Third Circuit, which recognizes that restitution under
the MVRA is a criminal penalty, has held:
    [E]ven though restitution is a criminal punishment,
    it does not transform a defendant’s punishment
    into something more severe than that authorized
    by pleading to, or being convicted of, the crime
    charged. Rather, restitution constitutes a return to
    the status quo, a fiscal realignment whereby a
    criminal’s ill-gotten gains are returned to their
    rightful owner. In these circumstances, we do not
    believe that ordering a convicted defendant to
    return ill-gotten gains should be construed as
    increasing the sentence authorized by a conviction
    pursuant to Booker.
Id. at 338 (emphases added); see also United States v.
Milkiewicz, 470 F.3d 390, 404 (1st Cir. 2006) (“Post-convic-
tion judicial fact-finding to determine [the] amount [of
restitution] by no means imposes a punishment beyond
that authorized by jury-found or admitted facts, or beyond
the statutory maximum as that term has evolved in the
Supreme Court’s Sixth Amendment jurisprudence.”
(internal quotation marks and alteration omitted)); United
States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) (“[The
defendant’s] protest about the amount of restitution
6                                     Nos. 06-3350 & 06-3351

likewise fails to the extent it rests on Booker, for restitution
lacks a ‘statutory maximum’ and the whole Apprendi
framework (of which Booker is an instance) therefore is
inapplicable.”).
  Alternatively, the defendants suggest that if restitution is
a civil remedy, then the Seventh Amendment guarantees
them a jury trial. The defendants muster no support for this
claim. Perhaps that is because we have already implicitly
rejected this argument. See United States v. Scott, 405
F.3d 615, 619 (7th Cir. 2005) (“[T]he amount of criminal
restitution is determined by the judge, whereas a suit
for damages is a suit at law within the [Seventh] [A]mend-
ment’s meaning.”); see also Kelly, 479 U.S. at 53 n.14 (noting
the uniformity among lower courts in finding the Seventh
Amendment inapplicable to restitution orders in the
context of the federal Victim and Witness Protection Act).


    B. The district court properly calculated the restitution
       amounts and guideline ranges.
  Next, the defendants argue that the amount of restitution
must be limited to the amount of loss that was proven to
the jury beyond a reasonable doubt. This argument rests
solely on the assumption that Booker applies to restitution
claims. Because the defendants’ assumption is wrong, this
argument has no traction. Moreover, the restitution or-
dered here tracks the amount the defendants swindled
from the state and federal governments. The record
indicates that the defendants stole a total of $434,617.30
from the Social Security Administration; they face joint and
several liability for restitution on that amount. Addition-
ally, Maria Bonner defrauded the U.S. Department of
Education and the State of Illinois of $24,999.00 in educa-
Nos. 06-3350 & 06-3351                                     7

tional grants; only she must pay restitution for that money.
These amounts precisely match the restitution ordered
by the district court.
  Additionally, Vernon Bonner claims the district court
erred in considering intended loss when determining his
applicable guidelines range. But that was precisely the kind
of loss the district court was supposed to consider. See
United States v. Wallace, 458 F.3d 606, 612 (7th Cir. 2006),
vacated on other grounds, 128 S. Ct. 856 (2008) (noting
that the court was “troubled by the fact that the judge
said that she thought that culpability should be measured
by actual loss rather than intended loss. This was not an
appropriate consideration, as the guidelines have already
made the judgment that intended loss is what counts.”);
U.S. Sentencing Guidelines Manual § 2B1.1. cmt. n.3(A)
(2006) (noting that the applicable loss is generally “the
greater of actual loss or intended loss”).


  C. Clerical errors in the judgments require remand.
  Finally, the defendants point out that the district court’s
written judgments still prohibit the defendants from
obtaining any federal benefits until they have completed
their restitution payments, even though the district court
did not mention this requirement when pronouncing
judgment at the sentencing hearings. The government
agrees that the district court erred by including these
conditions in the written judgments, but claims these
were merely clerical errors. The defendants do not dispute
this characterization.
  We agree that these errors were likely clerical in nature,
as we had issued a previous order prohibiting the district
court from imposing such conditions on the defendants. See
8                                      Nos. 06-3350 & 06-3351

Bonner (7th Cir. May 20, 2005) (unpublished). Moreover,
“[i]f an inconsistency exists between an oral and the later
written sentence, the sentence pronounced from the bench
controls.” United States v. Becker, 36 F.3d 708, 710 (7th Cir.
1994). So these conditions should be removed from the
written judgments.
  It is conceivable that we could correct these clerical errors
on our own, without remanding to the district court. See
Fed. R. Crim. P. 1(a)(1) (noting that these rules govern all
criminal proceedings in both federal district courts and
courts of appeals) and Fed. R. Crim. P. 36 (“[T]he
court may at any time correct a clerical error in a judg-
ment . . . .”); see also United States v. Boyd, 208 F.3d 638, 649
(7th Cir. 2000), vacated on other grounds, 531 U.S. 1135
(2001) (correcting a clerical error without remand). But
we generally have asked district courts to make such
corrections themselves on a limited remand. See, e.g., United
States v. Bullock, 857 F.2d 367, 372-73 (7th Cir. 1988); United
States v. Thomas, 774 F.2d 807, 814 (7th Cir. 1985). Accord-
ingly, we do the same here.


                    III. CONCLUSION
  The judgments are AFFIRMED, but the cases are
REMANDED solely for the district court to correct the above-
specified clerical errors in the judgments.




                     USCA-02-C-0072—4-14-08
