United States v. Weir ( 2003 )

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.
_________________________________________________________________
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this opinion should not be published and is not precedent except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.
3