United States v. Kravchuk , 110 F. App'x 866 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-5198
IVAN STEPANOVICH KRAVCHUK, (D.C. No. 01-CR-106-C)
(originally indicted as Ivan Stephanovich (N.D. Oklahoma)
Krauchuk, then amended to reflect true
name of Ivan Stepanovich Kravchuk),
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Defendant Ivan Stepanovich Kravchuk appeals the district court’s ruling imposing
*
This order and judgment is not binding precedent, except under the doctrines of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.
restitution in the amount of $9,000. He contends the district court erred in calculating the
amount of restitution, and also in failing to make specific findings to support its
restitution calculation as required by Federal Rule of Criminal Procedure 32(c)(1). Upon
review of the district court’s findings after remand, we affirm.
In his prior appeal, defendant raised issues challenging both his conviction for
violation of 18 U.S.C. § 2113(b) (theft of an automatic teller machine) and his sentence.
See United States v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003) (Kravchuk I). We
affirmed his conviction and rejected several challenges to his sentence, but remanded, as
is pertinent here, for the district court to make written findings regarding defendant’s
objections to his presentence report.
In Kravchuk I, defendant disputed the amount of restitution determined to be owed
to one of his victims. He argued there was no evidentiary basis to support the district
court’s adoption of $9,000 as the amount of the loss. In Kravchuk I, this court concluded
“the district court did not clearly err in its factual findings, and did not abuse its discretion
in the calculation of the award.” 335 F.3d at 1158. Therefore, “[b]ecause there was
evidence in the record to support the district court’s factual determination of the $9,000,
we upheld the substance of its findings.” Id. at 1160. However, the district court did not
reduce its factual findings to writing as required by Federal Rule of Criminal Procedure
32(c)(1) and this court remanded to the district court “for it to reduce to writing its factual
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findings regarding Kravchuk’s objections to his presentence report.” Id. at 1161.1
On remand, the district court made findings in response to each of defendant’s
objections. The factual finding in response to defendant’s objection as to the amount of
the loss states in pertinent part:
Upon further examination of the information related to money which was
located in the floor safe, it was a reasonable conclusion that the safe
contained $9,000 rather than $16,500. The victim is unable to document
the amount of money he had in the safe at the time [it] was removed by the
defendant from the store. In addition, statements made by other robbery
participants and information gathered during the investigation, led to the
reasonable conclusion that the safe contained no more than $9,000.
Statements of Reasons at 3; see also Transcript of Resentencing at 7. Defendant argues
the district court has again failed to comply with Rule 32(c)(1) by failing to give a
detailed analysis or sufficient reasons for the $9,000 amount and that the case should
again be remanded.
In Kravchuk I, the court found “the testimony of Kravchuk’s co-participants at
1
Rule 32(c)(1) has been reformatted and the current version appears in several
subsections of Federal Rule of Criminal Procedure 32(i). At the time of defendant’s
sentencing, Rule 32(c)(1) read as follows:
At the sentencing hearing, the court must afford counsel for the defendant and for
the Government an opportunity to comment on the probation officer’s
determinations and on other matters relating to the appropriate sentence, and must
rule on any unresolved objections to the presentence report. The court may, in its
discretion, permit the parties to introduce testimony or other evidence on the
objections. For each matter controverted, the court must make either a finding on
the allegation or a determination that no finding is necessary because the
controverted matter will not be taken into account in, or will not affect, sentencing.
A written record of these findings and determinations must be appended to any
copy of the presentence report made available to the Bureau of Prisons.
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trial about the amount of money each of them had kept from the crime” to be sufficient to
demonstrate that the court did not clearly err in its factual findings, and did not abuse its
discretion in calculating the restitution amount. Id. at 1157. On remand, the district court
made written findings that its determination was based upon “statements made by other
robbery participants, the amount of cash found on the participants at the time of their
arrest, and information gathered during the investigation,” which led “to the reasonable
conclusion that the safe contained a conservative estimate of $9,000.” Transcript of
Resentencing at 7. As instructed, the district court reduced to writing its factual findings
regarding the $9,000 amount of restitution. See Statement of Reasons at 3.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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