* This order and judgment is not binding precedent, except under the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.

1 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 5 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENNY LITSON,

Defendant-Appellant.

No. 97-2056

(D.C. No. 95-CR-579-BB)

(D. N.M.)

ORDER AND JUDGMENT*

Before TACHA, LOGAN, and LUCERO, Circuit Judges.

Defendant Benny Litson appeals the district court’s restitution order

following his guilty plea to the charge of conspiracy to commit embezzlement

from a tribal organization. We affirm.1
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Defendant was ordered to pay restitution in the amount of $4,127.58, the

value of nine head of cattle stolen from Chester Yazzie. Defendant had included

those cattle on a fraudulent Navajo Livestock Inspection Certificate which

permitted him to sell them without having them inspected. A proper inspection

would have revealed that they had been stolen. Defendant claimed that he had

purchased the cattle from one Rose Sandman and that he did not know they had

been stolen from Mr. Yazzie. The district court found no need for an evidentiary

hearing because the only disputed fact was whether defendant knew the cattle

were stolen and neither side had any evidence relevant to that issue.

On appeal, defendant claims that the district court erred in failing to

receive evidence on the question of whether he had stolen the cattle and to permit

him to contest the amount of the restitution order. He also complains that a

specific finding that he had stolen the livestock was not made. Citing Hughey v.

United States, 495 U.S. 411, 413 (1990), defendant apparently argues that he was

improperly required to pay restitution for a loss caused by conduct other than the

conduct for which he was convicted.

We review the district court’s findings of fact underlying a restitution order

for clear error. See United States v. Copus, 110 F.3d 1529, 1537 (10th Cir.

1997). “[T]he amount of the restitution order is reviewed for abuse of

discretion.” Id. The 1990 amendments to the Victim and Witness Protection Act,
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18 U.S.C. §§ 3663-3664, apply to defendant’s offense, which occurred on or

about October 8, 1991.

At the sentencing hearing, defendant was afforded an opportunity to present

evidence, but he declined. Contrary to defendant’s position, a finding that he had

stolen the livestock was not a prerequisite to a restitution order. Restitution was

appropriate based on defendant’s conduct in conspiring to obtain a fraudulent

inspection certificate to facilitate the sale of Mr. Yazzie’s stolen cattle. See

18 U.S.C. § 3663(a)(2) (restitution may be ordered for victim of conspiracy to

“any person directly harmed by the defendant’s criminal conduct in the course of

the . . . conspiracy”). Even though § 3663(a)(2) supersedes Hughey, see, e.g.,

United States v. Hensley, 91 F.3d 274, 276-77 (1st Cir. 1996), the restitution

order in this case comports with Hughey because it was for a loss caused by the

conduct that formed the basis of defendant’s conviction.

Defendant did not object to the amount of restitution, except to argue that

the amount of the loss should have been limited to the value of the inspection

certificate, $9.00. The presentence investigation report indicates that defendant

sold Mr. Yazzie’s cattle for the sum of $4,127.58, the amount of the restitution

order. Accordingly, we hold that the government carried its burden of

demonstrating the amount of the loss sustained by Mr. Yazzie, see 18 U.S.C. 
-4-

§ 3664(e), and we find no abuse of discretion in the restitution order.

AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge