113 F. 3d 1247 - United States of America v. A Snider
113 F3d 1247 United States of America v. A Snider
113 F.3d 1247
97 CJ C.A.R. 739
UNITED STATES OF AMERICA, Plaintiff--Appellee,
v.
Gerald A. SNIDER, Defendant--Appellant.
No. 96-5133.
United States Court of Appeals, Tenth Circuit.
May 13, 1997.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before TACHA, BALDOCK and LUCERO, Circuit Judges.
Advertisement
ORDER AND JUDGMENT*
This case is before us on direct criminal appeal.1 The defendant presents two issues for our consideration: 1) "Whether the district court erroneously calculated Dr. Snider's Specific Offense Characteristic under the Sentencing Guidelines by using a loss calculation which is not supported by the record evidence" and 2) "Whether the district court erroneously ordered Dr. Snider to pay restitution for amounts which are attributable to losses caused by the acts of an alleged co-conspirator, which the government acknowledged were outside the scope of the charged conspiracy."
Regarding the first issue, the defendant failed to object to calculation of loss in the amended presentence report. Except for cases involving plain error, failure to object precludes appellate review. United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.1991). We have reviewed the record in its entirety and do not find plain error. Accordingly, United States v. Saucedo is dispositive of the first issue. Defendant having waived his right to challenge the calculation of loss, his requested relief is denied.
As to the second issue, regarding the amount of restitution, the government concedes that the restitution should have only been in the amount of $119,532. We agree. Review of the record corroborates the government's position and does not justify further reduction of the restitution award. We grant relief to the extent conceded by the government and remand to the district court for further proceedings consistent with this opinion. All other relief requested by defendant pursuant to this issue is denied.
The sentence is AFFIRMED. The matter is REMANDED to the district court for correction of the restitution order.2
The case is unanimously ordered submitted without oral argument pursuant to Fed. R.App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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
Our jurisdiction is based on 28 U.S.C. § 1291
Advertisement
The motion to expedite this appeal is denied as moot