United States v. Weir

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 1, 2003
• Docket: 02-10468
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 1, 2003

Charles R. Fulbruge III _______________________ Clerk

No. 02-10468 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD VAN WEIR,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Texas Civil Docket #3:99-CR-54-1-R

_________________________________________________________________

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

PER CURIAM:*

The court has carefully considered the appeal of Richard

Van Weir based on the briefs, the excellent oral arguments of

counsel, and pertinent parts of the record. Having done so, we

conclude that we have jurisdiction and that the district court did

not abuse its discretion in its award of restitution on remand.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. The case is not moot because Van Weir’s payments to the

victims was not a voluntary act due to the pendency of a court

order, and because remedial relief could be effectively ordered if

Van Weir’s appeal succeeds.

We review the amount of restitution ordered for abuse of

discretion. United States v. Reese, 998 F.2d 1275, 1283 (5th Cir.

1993). Van Weir contends that the calculations as to Generali and

UNI are without sufficient support, that the amount ordered

erroneously ignores the commission structure of the business, and

that the district court failed to offset the amount of loss of all

the victims by amounts they allegedly owed to Van Weir. Although

Van Weir’s arguments are not without force, they demonstrate

neither clear error not an abuse of discretion by the district

court. The amount of restitution was decidedly conservative, in

part because of Van Weir’s having destroyed records of hundreds of

pertinent policies for which no loss amount could be determined.

This court has held that when the restitution amount does not

exceed actual losses, an erroneous calculation of the amount is not

an abuse of discretion. United States v. Calbat, 266 F.3d 358,

365-66 (5th Cir. 2001). To the extent this restitution award

cannot be more than the total loss to the victims, the district

court did not abuse its discretion. Moreover, the offsets sought

by Van Weir from the victims do not, as is required, arise from the

same acts as those underlying his criminal conviction and are not

cognizable for these purposes. Id. at 365.

2 Motion to dismiss DENIED, Judgment AFFIRMED.