Fayez Alburay ran a grocery store as well as a food stamp scam that defrauded the United States Department of Agriculture (“USDA”) out of more than a million dollars. His scheme landed him in federal court, where he pleaded guilty to wire fraud, and in federal prison, where he is serving a fifty-one-month sentence. On appeal, he challenges his sentence, a condition of his supervised release, and the district court’s $1,750,000 restitution award. We affirm the sentence but remand with instructions on the supervised release and restitution issues.
I.
Fayez Alburay owned and operated a neighborhood grocery — as it turned out, appropriately named the Shady Food Store — located at 11300 South Wentworth Avenue in Chicago, Illinois. Upon Albu-ray’s application on behalf of his store, the USDA authorized Shady Food to operate under the federal food stamp program. Under the program, Shady Food accepted food stamps or the modern electronic equivalent thereof (collectively, “food stamps” or “stamps”) 1 from food stamp recipients as payment for qualified food items such as fruit and vegetables (and not for such things as alcohol and tobacco products). On behalf of Shady Food, Al-buray then redeemed the stamps by presenting them to a bank that would then credit the store with a cash deposit. The USDA would then reimburse the bank for the cash value of the stamps.
The food stamp program no doubt generated business volume that Shady Food may not have otherwise had. For Albu-ray, however, that increase was apparently not enough. He devised a scheme whereby he would accept food stamps in exchange for cash instead of qualified food items (cash that could then be used for anything). Alburay made these unlawful exchanges worth his while by paying less than the face value of the stamps. For example, someone would give Alburay $100 worth of stamps, and Alburay would return only $70 worth of cash. “Customers” apparently preferred the lower cash amount instead of the highervalued but restricted stamps. To complete the scheme, Alburay presented the unlawfully obtained stamps to the bank and received the full face value of the stamps, thereby fraudulently acquiring funds from the USDA. The scheme ran from 1996 to 1998, spanning twenty-five months.
Alburay’s guilt in these matters is undisputed. After the government charged Al-buray with nine criminal counts, he pleaded guilty to one count of wire fraud, 18 U.S.C. § 1343. In accordance with a written plea agreement, the other counts were dismissed. The dismissed charges were two additional counts of wire fraud, three counts of mail fraud, 18 U.S.C. § 1341, and three counts of food stamp fraud, 7 U.S.C. § 2024(c).
In the deal, the government and Albu-ray agreed that U.S.S.G. § 2Fl.l(a) (1997) provided the appropriate base offense level for this case — six. They also agreed that the offense involved more than minimal planning, and, as a result, two more levels
Nevertheless, Alburay’s opportunity for an aceeptance-of-responsibility reduction dissipated because, after pleading guilty and while on release pending sentencing, Alburay failed to appear for his sentencing hearing. The district court issued a fugitive warrant, and, several weeks later, he was arrested after a routine traffic stop in Elko, Nevada. Alburay, a citizen of Jordan, had obtained a passport under an alias and was apparently preparing to flee the United States to avoid his impending punishment. Alburay’s detour was a costly mistake. At sentencing, the district court rejected the acceptance-of-responsibility reduction and added a two-level obstruction-of-justice enhancement for willfully failing to appear for sentencing in accordance with U.S.S.G. § 3C1.1.
As to the loss amount, the government submitted an analysis to the probation officer estimating the loss at $1,750,000, which the probation officer incorporated into her presentence investigation report. The district court adopted the $1,750,000 figure for purposes of sentencing and restitution. As indicated above, a loss amount of $1,750,000 equated to a twelve-level enhancement under § 2Fl.l(b)(l)(M).
Additionally, Alburay moved for a downward departure based upon hardships resulting from his status as a deportable alien.
See, e.g., United States v. Meza-Urtado,
The bottom line was a total offense level of twenty-two (six for the base, two for more than minimal planning, twelve for the loss, and two for obstructing justice). With the category I criminal history, the sentencing range was forty-one to fifty-one months of imprisonment, and the district court sentenced at the top of the range. Alburay appeals the fifty-one-month sentence.
The district court also imposed three years of supervised release. At the sentencing hearing, the district court ordered a special condition of supervised release concerning deportation and re-entry into the United States. The text of the condition in the district court’s written judgment, however, did not match up with what the district court had said on the record. Alburay appeals the discrepancy. Additionally, as mentioned above, the district court ordered $1,750,000 in restitution. Alburay also challenges that figure on appeal.
II.
A.
The basis of Alburay’s sentencing challenge is
United States v. Booker,
— U.S.-,
After oral argument in this appeal, we ordered a limited remand, pursuant to Pa-ladino, to ascertain whether the Sixth Amendment error was prejudicial. Id. at 483-85. Specifically, under the Paladino procedure, we retained jurisdiction over the appeal while ordering “a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at 484. In our limited remand order, we postponed adjudication of Albu-ray’s supervised release and restitution arguments until we received the district court’s Paladino answer.
On limited remand, the district court first ordered each party to submit a memorandum presenting their positions on the matter. After reviewing the memoranda and the record at the time of sentencing, the district court then issued a statement ruling that, if required to resentence, it would reimpose the original fifty-one-month sentence. Given the district court’s decision, Alburay cannot show prejudice.
Id.
at 483-84. Nonetheless, the district court’s decision does not end all appellate review of the sentence. As we held in
Paladino:
“If [the district court determines that it would reimpose the original sentence], we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by
Booker.” Id.
at 484 (citing
Booker,
Pursuant to
Booker,
the reasonableness of a sentence is guided by the factors set forth in 18 U.S.C. § 3553(a).
Here, in its limited remand statement, the district court first reviewed the § 3553(a) factors and then defended its multifaceted sentencing decision under the guidelines with this explanation:
Defendant Alburay (1) committed numerous criminal acts and engaged in more than minimal planning in committing the offense, (2) possessed three social security numbers, two driver’s licenses, and five aliases, (3) failed to appear for his sentencing hearing, and (4) was found with an alias when arrested after the issuance of a fugitive warrant. When coupled with his convictions and arrests not resolved by conviction or acquittal, these facts establish Defendant Alburay’s gross disregard for the law and a pattern of recidivism. They also establish that Defendant Alburay went to great lengths to avoid detection of his criminal behavior. Based on the record at the time of sentencing and the Government’s and Probation Office’s recommendations, it was determined that Defendant Alburay’s offense resulted in a loss amount of $1,750,000.00. This loss amount is significant and indicative of the serious nature of Defendant Alburay’s offense. Finally, Defendant Alburay’s criminal history grossly under-states the likelihood that he will continue to commit financial crimes and otherwise disregard the law. In fact, the Court initially considered departing upward from the sentencing range proscribed by the guidelines before settling, instead, on its [original] sentence at the high end of the range. For all of these reasons, the Court declares that it would reimpose its [original] sentence if required to resentence Defendant Alburay. The fact that the sentencing guidelines are advisory does nothing to change this result.
The district court’s limited remand decision presents a more than adequate justification of the sentence under the § 3553(a) factors.
See George,
B.
Alburay also challenges a special condition of his supervised release pertaining to deportation and re-entry into the United States. At the sentencing hearing, the district court imposed the following special condition: “If deported, you are
Arguing that the written version of the condition is inconsistent with the oral version, Alburay seeks to have the written version replaced with the oral version. The government concedes the argument. The written version contradicts the oral version in that the oral version does not order “immediate deportation” in any shape or form.' (The written version is also internally inconsistent: the conditional phrase “if deported” does not square with the order for “immediate deportation.”) The rule in such situations is clear: “If an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls.”
United States v. Bonanno,
C.
Lastly, we turn to the district court’s restitution award, which it derived from the government’s loss calculations. To determine the USDA’s loss caused by a food stamp scheme, the proper calculation is to take the total food stamp redemptions (i.e., both the fraudulent and legitimate redemptions) less the legitimate food stamp sales.
See United States v. Hassan,
For the redemption figure in its calculation, the government used the amount of $2,100,000 for the twenty-five months covering the duration of the scheme. The exact and undisputed redemption amount is $2,106,632.08, and Alburay has asked us to use that figure. However, while it is unclear why the government rounded the exact amount down to $2,100,000, the-rounding actually benefitted' Alburay by reducing his restitution obligation. In the aforementioned formula, a lower redemption figure will always yield a lower loss figure. Therefore, there is no need for us to take issue with the government’s unexplained rounding of the redemption figure in this appeal.
Next, the government estimated legitimate sales by using the estimate that Al-
The district court adopted the government’s loss calculations wholesale and ordered Alburay to pay $1,750,000 in restitution. The district court did so without objection from Alburay, who concedes that our review is thus limited to plain error.
See United States v. Randle,
Before concluding, we briefly turn to Alburay’s complaint about the $180,000 per year estimate for legitimate sales. The exact legitimate sales figure is unavailable; thus, an estimate had to be used. Alburay suggests a number of alternative estimates based upon the sales of a handful of other stores in his area of Chicago from the relevant period. His alternatives would yield a lower restitution award, in the neighborhood of $1,300,000 to $1,500,000. The trouble with Alburay’s argument, however, is there is little reason to believe that his suggested estimates from other selected stores are any more reliable than the $180,000 estimate that he used for Shady Food’s USDA application. While the other stores are relatively close to Shady Food, they still operate at different locations, each having its own idiosyn
III.
As Alburay’s fifty-one-month sentence for his food stamp scheme is not unreasonable, we Affirm the sentence. However, a special condition of Albuary’s supervised release and the amount of the restitution award require correction. Nonetheless, a new hearing before the district court is not required. The case is RemaNded With InstRuctions for the district court to enter a corrected judgment with respect to the special condition at issue and the restitution award as stated above.
Notes
. Traditional food stamp coupons have been replaced by "electronic benefit transfer cards.” The card system sends food stamp program benefits to recipients through electronic fund transfers, by which program benefits are added to a recipient’s card each month. In order for the recipient to access the benefits, he must present his card to an authorized retailer to acquire eligible food items. Authorized retailers have a unique point-of-sale machine designed to accept these cards. Retailers then redeem the received card benefits through additional electronic fund transfers.
. It is also likely that his sales were inflated when the word got out that food stamps could be exchanged for a discounted amount of cash. Assuming the other stores were not providing similar discounts, any comparison would be irrelevant.
