Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7034 (D.C. No. 6:22-CR-00132-JFH-1) LANCE WADE ELLIOTT, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, CARSON, and FEDERICO, Circuit Judges. _________________________________
Lance Wade Elliott challenges both the lawfulness and the calculation of
restitution ordered by the district court. But he failed to raise his objections at his
sentencing and does not argue for plain error in his opening brief, as our precedents
require. Although he eventually addressed plain error in his reply brief, neither
fairness nor the adversarial process would be served by exercising discretion to
consider those arguments in this case.
After examining the briefs and appellate record, this panel has determined *
unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 2
As a result, Mr. Elliott’s arguments on appeal are waived. The district court’s
restitution order is AFFIRMED.
I. Background
Mr. Elliott got into a drunken argument with a co-worker at a pool party. The
dispute grew physical. Mr. Elliott swung a shovel at his co-worker—identified only
as J.M.—who ducked. But Mr. Elliott’s swing connected with another party-goer,
and a brawl ensued. J.M. managed to stay out of the fight, but he witnessed Mr.
Elliott savagely beat and strangle one victim—breaking her clavicle, jaw, and collar
bone—and attack another other with the shovel and pruning shears. Law
enforcement arrived and arrested Mr. Elliott.
Mr. Elliott has no memory of the incident due to his level of intoxication. But
when he was charged with multiple crimes stemming from his actions that day, he
pleaded guilty. The prosecutor sought restitution under the Mandatory Victims
Restitution Act, 18 U.S.C. § 1365. The district court awarded restitution for the two
victims injured in the brawl, and for J.M., who witnessed the entire ordeal. There
were no objections to the restitution order from any party at sentencing.
Our focus is on the restitution ordered for J.M. The district court ordered Mr.
Elliott to pay $1,600 to J.M., because he allegedly missed work and fell behind on
bills from the emotional instability caused by witnessing the attack. But unlike the
other victims, J.M. did not suffer any physical injuries.
Mr. Elliott now appeals two issues. His first issue is that restitution is
supposedly unlawful under 18 U.S.C. § 1365, which limits restitution victims to 2 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 3
those who suffered a “bodily injury.” His second issue is that the district court
incorrectly calculated the restitution at $1,600, given the lack of substantiating
evidence for those expenses. The government pointed out in its response brief that
Mr. Elliott did not object at his sentencing hearing, and failed to raise plain-error
review in his brief. In reply, Mr. Elliott attempted to argue that Issue I rose to a plain
error but conceded that Issue II did not.
II. Discussion
Mr. Elliott’s arguments have not properly raised this appeal for our review.
His opening brief demonstrates the deficiency. On Issue I, he identified de novo as
the standard of review, without any discussion of preservation below (if preserved, de
novo would have been the correct standard). On Issue II, he admitted his failure to
object below, and identified plain error as the relevant standard, but did not analyze
or argue the elements of plain error. Not until his reply brief did he argue that the
restitution order was plain error. But as our precedents show, that is too late.
“Where a defendant has not properly preserved the issue below,” but properly
briefs the issue on appeal, “we review a restitution order for plain error.” United
States v. Mendenhall, 945 F.3d 1264, 1265 (10th Cir. 2019) (citing United States v.
James, 564 F.3d 1244, 1248 (10th Cir. 2009)). Plain error requires “(1) an error; (2)
that is plain; (3) that affects substantial rights; and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Mann, 786 F.3d 1244, 1248 (10th Cir. 2015).
3 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 4
“Ordinarily, an appellant who fails to preserve an evidentiary objection below
may argue and establish plain error on appeal, however, a failure to argue plain error
on appeal waives the argument.” United States v. Isabella, 918 F.3d 816, 845 (10th
Cir. 2019) (cleaned up). “[W]e generally do not consider arguments made for the
first time on appeal in an appellant’s reply brief and deem those arguments waived.”
United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019) (citing United States v.
Pickel, 863 F.3d 1240, 1259 (10th Cir. 2017)). This rule preserves fairness for the
non-moving party, who has no opportunity to argue against an issue raised in a reply
brief. The panel can look past the forfeiture if the plain error is obvious enough,
“[b]ut we will only exercise our discretion if it ‘permit[s] the appellee to be heard
and the adversarial process to be served.’” Id. at 1198 (quoting Isabella, 918 F.3d at
844).
We decline to exercise that discretion here for two reasons. First, Mr. Elliott
was clearly aware of his failure to preserve the objection. In his opening brief, on
Issue I, under the heading “A. Preservation and standard of review,” he makes no
mention of any attempt to preserve his argument for appeal. And on Issue II, he
briefly nods to the plain-error standard, yet he failed to articulate an argument under
the correct standard even there. He concedes as much in this Reply Brief,
acknowledging the proper standard of review is plain error.
Second, it was not an obvious error to assess restitution without an underlying
physical injury. No binding case law has said so.
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7034 (D.C. No. 6:22-CR-00132-JFH-1) LANCE WADE ELLIOTT, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, CARSON, and FEDERICO, Circuit Judges. _________________________________
Lance Wade Elliott challenges both the lawfulness and the calculation of
restitution ordered by the district court. But he failed to raise his objections at his
sentencing and does not argue for plain error in his opening brief, as our precedents
require. Although he eventually addressed plain error in his reply brief, neither
fairness nor the adversarial process would be served by exercising discretion to
consider those arguments in this case.
After examining the briefs and appellate record, this panel has determined *
unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 2
As a result, Mr. Elliott’s arguments on appeal are waived. The district court’s
restitution order is AFFIRMED.
I. Background
Mr. Elliott got into a drunken argument with a co-worker at a pool party. The
dispute grew physical. Mr. Elliott swung a shovel at his co-worker—identified only
as J.M.—who ducked. But Mr. Elliott’s swing connected with another party-goer,
and a brawl ensued. J.M. managed to stay out of the fight, but he witnessed Mr.
Elliott savagely beat and strangle one victim—breaking her clavicle, jaw, and collar
bone—and attack another other with the shovel and pruning shears. Law
enforcement arrived and arrested Mr. Elliott.
Mr. Elliott has no memory of the incident due to his level of intoxication. But
when he was charged with multiple crimes stemming from his actions that day, he
pleaded guilty. The prosecutor sought restitution under the Mandatory Victims
Restitution Act, 18 U.S.C. § 1365. The district court awarded restitution for the two
victims injured in the brawl, and for J.M., who witnessed the entire ordeal. There
were no objections to the restitution order from any party at sentencing.
Our focus is on the restitution ordered for J.M. The district court ordered Mr.
Elliott to pay $1,600 to J.M., because he allegedly missed work and fell behind on
bills from the emotional instability caused by witnessing the attack. But unlike the
other victims, J.M. did not suffer any physical injuries.
Mr. Elliott now appeals two issues. His first issue is that restitution is
supposedly unlawful under 18 U.S.C. § 1365, which limits restitution victims to 2 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 3
those who suffered a “bodily injury.” His second issue is that the district court
incorrectly calculated the restitution at $1,600, given the lack of substantiating
evidence for those expenses. The government pointed out in its response brief that
Mr. Elliott did not object at his sentencing hearing, and failed to raise plain-error
review in his brief. In reply, Mr. Elliott attempted to argue that Issue I rose to a plain
error but conceded that Issue II did not.
II. Discussion
Mr. Elliott’s arguments have not properly raised this appeal for our review.
His opening brief demonstrates the deficiency. On Issue I, he identified de novo as
the standard of review, without any discussion of preservation below (if preserved, de
novo would have been the correct standard). On Issue II, he admitted his failure to
object below, and identified plain error as the relevant standard, but did not analyze
or argue the elements of plain error. Not until his reply brief did he argue that the
restitution order was plain error. But as our precedents show, that is too late.
“Where a defendant has not properly preserved the issue below,” but properly
briefs the issue on appeal, “we review a restitution order for plain error.” United
States v. Mendenhall, 945 F.3d 1264, 1265 (10th Cir. 2019) (citing United States v.
James, 564 F.3d 1244, 1248 (10th Cir. 2009)). Plain error requires “(1) an error; (2)
that is plain; (3) that affects substantial rights; and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Mann, 786 F.3d 1244, 1248 (10th Cir. 2015).
3 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 4
“Ordinarily, an appellant who fails to preserve an evidentiary objection below
may argue and establish plain error on appeal, however, a failure to argue plain error
on appeal waives the argument.” United States v. Isabella, 918 F.3d 816, 845 (10th
Cir. 2019) (cleaned up). “[W]e generally do not consider arguments made for the
first time on appeal in an appellant’s reply brief and deem those arguments waived.”
United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019) (citing United States v.
Pickel, 863 F.3d 1240, 1259 (10th Cir. 2017)). This rule preserves fairness for the
non-moving party, who has no opportunity to argue against an issue raised in a reply
brief. The panel can look past the forfeiture if the plain error is obvious enough,
“[b]ut we will only exercise our discretion if it ‘permit[s] the appellee to be heard
and the adversarial process to be served.’” Id. at 1198 (quoting Isabella, 918 F.3d at
844).
We decline to exercise that discretion here for two reasons. First, Mr. Elliott
was clearly aware of his failure to preserve the objection. In his opening brief, on
Issue I, under the heading “A. Preservation and standard of review,” he makes no
mention of any attempt to preserve his argument for appeal. And on Issue II, he
briefly nods to the plain-error standard, yet he failed to articulate an argument under
the correct standard even there. He concedes as much in this Reply Brief,
acknowledging the proper standard of review is plain error.
Second, it was not an obvious error to assess restitution without an underlying
physical injury. No binding case law has said so. And we have held, in an
unpublished opinion, that assessing restitution based on mental injuries alone was not
4 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 5
plain error. United States v. Dotson, 242 F.3d 391 at *5 (10th Cir. 2000) (Table)
(“At best, the statute is ambiguous with regard to the scope of ‘bodily injury’ and the
law is by no means clearly established.”); accord United States v. Breshers, 684 F.3d
699, 702 (7th Cir. 2012) (holding the “plain reading of the statute does not clearly
support” a limitation to physical injuries). The district court’s assessment could be
error, but that error is not “obvious enough” to overlook Mr. Elliott’s briefing
deficiency. Leffler, 942 F.3d at 1198; United States v. Taylor, 514 F.3d 1092, 1100
(10th Cir. 2008) (“to be clear or obvious, the error must be contrary to well-settled
law”). Mr. Elliot’s reliance on an out-of-circuit Eighth Circuit case, United States v.
Reichow, 416 F.3d 802 (8th Circ. 2005), does not carry enough weight to overcome
plain error. 1
Nor did Mr. Elliott initially argue that his objection was preserved, before
resorting to plain error in the alternative. Unlike cases when we have found the
adversarial process satisfied, the opening brief is devoid of any argument that
preservation occurred below. See e.g., United States v. Zander, 794 F.3d 1220, 1234
n.5 (10th Cir. 2015) (“We hold that Defendant adequately addressed the issue of
plain error review in his reply to the government’s brief, after arguing in his opening
brief that his objections below were sufficiently raised to be preserved for review on
appeal.”) (emphasis added). The circumstances would be different if he had made
1 For these reasons, even if we were to exercise our discretion, Mr. Elliott could not establish that any error that was plain, or that it cast doubt on the integrity of the judicial proceedings. See Mann, 786 F.3d at 1248. 5 Appellate Case: 24-7034 Document: 53-1 Date Filed: 04/08/2025 Page: 6
some effort in his opening to “fulfill his obligation to identify where the precise issue
raised on appeal was raised in the district court and ruled upon.” Leffler, 942 F.3d at
1199; 10th Cir. R. 28.1(A) (requiring an appellant to “cite the precise references in
the record where the issue was raised and ruled on”). But instead, the opening brief
skirted the issue entirely.
In sum, Mr. Elliott’s failure to address either plain error or an arguable
preservation in the district court forecloses his appeal.
We affirm.
Entered for the Court
Timothy M. Tymkovich Circuit Judge