United States v. Martin

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 16 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 98-2240 (D. Ct. No. CR-96-72-JC) THOMAS DAVID MARTIN, (D. N. Mex.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This appeal is from an order of the district court ordering defendant to pay

$12,731.48 in restitution after remand from this court. Defendant appeals on the

ground that the district court improperly denied him the opportunity for a hearing

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. to present evidence on remand concerning the appropriate apportionment of

restitution. We affirm.

The restitution order in this case was part of a sentence imposed upon

defendant after pleading guilty to two counts of robbery affecting interstate

commerce. Defendant appealed to this court in his first appeal arguing that the

restitution amount was illegal because the total amount ordered to be paid by him

and his co-defendant exceeded the total amount of the loss. This court agreed and

remanded for resentencing. Upon remand, defendant filed a Rule 35 motion

requesting a hearing on the restitution amount. In that Rule 35 motion, defendant

waived his presence at the hearing. The district court denied the motion for a

hearing but entered three amended judgments ultimately establishing defendant’s

restitution amount at $12,731.48 in an order dated October 14, 1998.

We review the district court’s decision to hold a hearing upon resentencing

of a defendant upon remand for an abuse of discretion. See United States v.

Moore, 88 F. 3d 1231, 1235 (10th Cir. 1996). Further, “a sentencing court has

wide discretion to fashion an appropriate sentence for an individual defendant.”

United States v. Harris, 7 F.3d 1537, 1540 (10th Cir. 1993) (citing Williams v.

Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018, 2023, 26 L.Ed. 2d 586 (1970)). Most

importantly, the restitution provisions of the Victim Witness Protection Act

(“VWPA”) require an individualized focus on the defendant that necessitates the

-2- exercise of judicial discretion. See id. Under the circumstances of this case, the

district court was under no duty to hold a hearing. The district court had

considered the facts underlying this restitution order on at least four occasions.

Nothing in the remand order from this court required the district court to hold a

hearing. Instead, the remand order was specifically limited to the error relating to

the total amount of the restitution order that exceeded the loss amount. The

district court therefore was limited in the remand from this court only to revising

the total restitution order and apportioning the restitution amount between the two

co-defendants so that the total did not exceed the total amount of the loss. The

district court did that. The district court further revised its restitution order on

remand twice, apparently reflecting the district court’s consideration of the

appropriate factors in the remand order, the facts of this case, and the

considerations under the VWPA. Under these circumstances, we cannot say that

the district court abused its discretion. The order of the district court is

AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

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