United States v. Conerly

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20923
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AL SEVESTER CONERLY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-522-1
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September 19, 2002
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Al Sevester Conerly appeals the order of restitution in the
amount of $47,793.79, that was imposed as part of his sentence
for theft of property in interstate commerce, in violation of
18 U.S.C. § 659. He argues that because the value of the
computers he stole was only $33,377.48, the order was an abuse of
discretion. Conerly misconstrues the governing statute, which
provides for restitution due to damage to or loss of property.
*
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that this opinion should not be published and is not precedent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.
No. 01-20923
-2-
18 U.S.C. § 3663A(b)(1). While the stolen goods worth $33,377.48
were not returned to the victim, the remainder of the shipment of
computers was returned. Part of that shipment was damaged by
Conerly. Restitution in the amount of $33,377.48 for the
unreturned computers was proper as was restitution for the
difference between the value of the remainder of the shipment
when Conerly took possession of it and its value when it was
recovered and returned to the victim of his theft, i.e.,
$14,416.31. 18 U.S.C. § 3663A(b)(1)(B). The Under 18 U.S.C.
§ 3663A(b)(1)(B), the victim was entitled to recover “the greater
of the value of the property [the entire shipment was worth
$521,436.10] on the date of the damage [or] loss . . . or the
value of the property [$521,436.10] on the date of sentencing,
less the value (as of the date the property is returned) of any
part of the property that is returned.” 18 U.S.C.
§ 3663A(b)(1)(B). The restitution calculation is the same under
either prong of subsection (b)(1)(B). The district court did not
abuse its discretion in ordering restitution in the amount of
$47,793.79. See United States v. Hughey, 147 F.3d 423, 436 (5th
Cir. 1998).
AFFIRMED.