United States v. Beitler

48 F. App'x 674

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 11, 2002
• Docket: No. 01-50418; D.C. No. CR-00-00028-DOC-1
• Status: Published

Opinion

MEMORANDUM

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Gina Beitler appeals the imposition of restitution after pleading guilty to tax evasion, in violation of 26 U.S.C. § 7201. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review for plain error, United States v. Zink, 107 F.3d 716, 718 (9th Cir.1997), and we affirm.

Beitler contends that the district court lacked statutory authority to order restitution to the Internal Revenue Service. We disagree. See 18 U.S.C. § 3563(b)(2) (giving the district court discretion to order restitution as a condition of probation).

To the extent that Beitler relies on the sequence of orders in the written judgment order to contend that restitution was not imposed as a condition of her probation, this contention is unavailing. First, the judgment expressly stated as a condition of her probation that Beiler must pay taxes owed for the years of conviction. Second, the sentencing hearing was unambiguous as to the district court’s order that $800 monthly restitution payments were to be made during probation. See United States v. Bergmann, 836 F.2d 1220, 1222 (9th Cir.1988) (stating that a judge’s oral sentence pronouncement, not the words of a judgment or commitment order, are controlling).

Finally, Beitler asserts that the court should not apply the express directive of U.S.S.G. § 5E1.1(g), which states that the earlier version of § 5E1.1 applies to offenses committed prior to November 1, 1997, because it would create uncertainty. Again we disagree, because the guideline is clear. See U.S.S.G. § 5E1.1(g); § 5E1.1 (1997).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.