
    UNITED STATES of America, Appellee, v. Emmanuel ABIODUN, Defendant-Appellant.
    No. 09-1163-cr.
    United States Court of Appeals, Second Circuit.
    May 19, 2010.
    
      Law Office of Andrew H. Freifeld, New York, N.Y., for Appellant.
    Preet Bharara, U.S. Attorney, Jessica A. Masella, Katherine Polk Failla, Assistant U.S. Attorneys (of counsel), New York, N.Y., for Appellees.
    PRESENT: JON O. NEWMAN, WALKER, GERARD E. LYNCH, Circuit Judges.
   SUMMARY ORDER

Emmanuel Abiodun appeals from an amended judgment of conviction resen-tencing him principally to 96 months’ imprisonment following his guilty plea to three counts of conspiracy to commit wire fraud, computer fraud, fraud in connection with identification documents, access device fraud, interstate transportation of stolen goods and interstate receipt and sale of stolen goods in violation of 18 U.S.C. §§ 371, 1343, 1030(a)(2)(C), (c)(2)(B)(i)-(iii), 1028(a)(7), 1029(a)(2), 1029(a)(3), 2314 and 2315; fraud in connection with identification documents in violation of 18 U.S.C. §§ 1028(a)(7), 1028(b)(1)(D), 1028(c)(3) and (2); and possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) and (2). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

When a defendant challenges the district court’s interpretation of a Guidelines provision, we review that interpretation de novo. See United States v. Hertular, 562 F.3d 433, 449 (2d Cir.2009). We review the reasonableness of a sentence for abuse of discretion and will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Rigas, 583 F.3d 108, 121-22 (2d Cir.2009) (internal quotations marks omitted). In examining the substantive reasonableness of a sentence, “we take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion.” United States v. Cavern, 550 F.3d 180, 190 (2d Cir.2008) (en banc).

In the first appeal from his sentence, Abiodun challenged the district court’s determination that his criminal activity involved more than 250 victims, as most of the individuals affected by Abiodun’s fraud were reimbursed for their financial losses by their banks or credit card companies. We held that such reimbursed victims may be counted as victims for the purposes of Sentencing Guidelines § 2Bl.l(b)(2) if they suffered (1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms. See United States v. Abiodun, 536 F.3d 162, 168-69 (2d Cir.2008). We remanded to the district court and directed it either to “(1) recalculate the loss amount associated with defendants’ crimes to include lost time or (2) determine whether, if individuals whose losses ultimately consisted only of lost time are excluded from the count, it is still ‘more likely than not’ that Abiodun’s crimes affected ‘250-plus victims.’ ” Id. at 171 (emphasis in original).

The parties disagree about whether the district court successfully applied this Court’s analysis. It is unnecessary to resolve this disagreement, however, because the district court also justified its re-imposition of a 96-month above-Guidelines sentence by using an alternative Guidelines calculation. The court noted that if those whose only loss was lost time were excluded, there would remain more than 50 victims, a number that would require a four-level increase, see U.S.S.G. § 2Bl.l(b)(2)(B), i'ather than the six-level increase previously imposed. The court also noted that with a four-level increase, the downward departure of six levels, which the court had previously made pursuant to United States v. Lauersen, 348 F.3d 329 (2d Cir.2003), aff'd on reh’g, 362 F.3d 160 (2d Cir.2004), vacated and remanded on other grounds, 543 U.S. 1097, 125 S.Ct. 1109, 160 L.Ed.2d 988 (2005), would be reduced from six levels to four levels. The net result was to end up with the same adjusted offense level of 27. Since this method of calculating the adjusted offense level (and hence the applicable Guidelines sentencing range of 70 to 87 months) was free from error, any possible error in calculating that same level by a different method was harmless.

Moreover, the district court also found that a 96-month above-Guidelines sentence was appropriate in light of the factors to be considered under 18 U.S.C. § 3553(a). The district court took into account the number of victims affected by Abiodun’s conduct and the “pain and suffering and frustration” of those victims even if they did not ultimately suffer monetary loss. The district court appropriately took account of the section 3553(a) factors in imposing sentence under, and the sentence it arrived at in balancing those factors is well within the range of permissible decisions. The district court made clear that it imposed a non-guidelines sentence that it believed was the correct sentence regardless of the technical guidelines issues, and, since that sentence is reasonable, the sentence must be affirmed in any event.

The judgment is AFFIRMED.  