* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-4053
v. (District of Utah) KIRK IRVING KOSKELLA,

Defendant-Appellant. (D.C. No. 00-CR-594-JTG)

ORDER AND JUDGMENT *
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. ** Kirk Irving Koskella, along with several other indi viduals whose cases are currently pending in this court and the District of Utah, pled guilty to conspiring to defraud the Internal Revenue Service (IRS) in vi olation of 18 U.S.C. § 371 (2000), and wire fraud in violation of 18 U.S.C. § 1343 (2000). The district court ordered Koskella to individually pay $14,733,439.91 in restitution, the payment-2-

schedule for which was to be determined by the Bure au of Prisons (BOP) and the United States Probation Office. Koskella appeals the court’s order requiring the BOP to set the payment schedule and the court’s fai lure to order restitution jointly and severally among all co-conspirators. The government concedes both issues. Taking jurisdiction pursuant to 28 U.S.C. § 1291 (2 000) and 18 U.S.C. § 3742(a) (2000), we find that the district court erred and t hus reverse and remand. BACKGROUND Koskella and his co-conspirators created programs d esigned or advertised to reduce or eliminate federal income tax liabiliti es for anyone who invested money into the programs. After being charged with conspiracy to defraud the IRS and wire fraud, Koskella pled guilty and agreed to cooperate with the prosecution. Koskella’s cooperation with the government fell thr ough, and as a result he sought to obtain new counsel and withdraw his guilty plea. After a competency hearing, at which the court deemed Koskella compete nt, the court denied his motion to withdraw his plea. Koskella received the statutory maximum of five yea rs incarceration for each crime and the court ordered the sentences to b e served consecutively. In addition, the court ordered Koskella to pay $14,733 ,439.91 in restitution, but delegated the responsibility of setting a payment s chedule to the BOP and the-3-

Probation Office. Furthermore, despite its intenti on that the restitution should be shared jointly and severally, the court’s order was not so limited. ANALYSIS Ordinarily, we review a district court’s order of r estitution de novo, but because Koskella failed to object to the order of r estitution, we review it for plain

error. United States v. Overholt , 307 F.3d 1231, 1253 (10th Cir. 2002). 1. Restitution Payment Schedule Must be Set by the District Court We recently held that a district court cannot deleg ate the responsibility of determining a payment schedule for restitution purs uant to 18 U.S.C. § 3664. Overholt , 307 F.3d at 1256. Here, the district court’s ord er specifically states that “Restitution shall be paid as determined by the Bur eau of Prisons Inmate Financial Responsibility Program while [Koskella is ] incarcerated and the United States Probation Office following [Koskella’s] rele ase from imprisonment.” Thus, the court did precisely what Overholt prohibits it from doing. What is more, the government concedes in its brief that Overholt is controlling and requires reversal. Therefore, we find that the dis trict court committed plain error when it delegated the scheduling of restitution pay ments. 2. Restitution Should Be Joint and Several Among C o-Conspirators The conspiracy with which Koskella was charged invo lves several other persons. Currently, there are three related cases pending, none of which has yet-4-

reached the sentencing phase. If Koskella is order ed to pay full restitution and other co-conspirators are also ordered to pay resti tution, the victims may collect more than their actual loss. This potential outcom e contravenes the purpose of restitution and exceeds the district court’s authority. See United States v. Gottlieb , 140 F.3d 865, 873-74 (10th Cir. 1998). Moreover, not only does the government support joint and several restitution, the record also shows that the district court itself intended such a result. Kosk ella’s counsel stated that any restitution order “would be joint and several with anyone else who would be convicted of the fraud scheme in this case.” The c ourt agreed. Therefore, on remand the court should reconsider whether Koskella ’s order of restitution should be joint and several. Based on the foregoing, we REVERSE and REMAND to th e district court. Entered for the Court Timothy M. Tymkovich Circuit Judge