* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designati on.

UNITED STATES COURT OF APPEALS Filed 12/20/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MORGAN ANNE DETHOUARS, also known as Morgan Counts, also known as Linda Anne Morgan,

Defendant-Appellant. No. 96-1039 (D.C. No. 94-CR-405) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant Morgan Anne DeThouars pled guilty to one count of wire fraud under 18 U.S.C. §§ 1343 and 2, and one count of mon ey laundering under 18 U.S.C. §§ 1957 and 2. The district court senten ced defendant to eighteen months’ imprisonment, and ordered her to make full restitution of $3,472,090, to be paid jointly and severally with her husband, cod efendant William Olson. Defendant appeals the restitution order, contending the district court improperly required her to pay the ordered amount w hen there was no evidence of her ability to pay. We review de novo the legality of a district court’s order of restitution, and review for clear error any underly ing factual findings. United States v. Guthrie , 64 F.3d 1510, 1514 (10th Cir. 1995). Usually, we review the amount of the restitution order within statutory li mits for an abuse of discretion. United States v. Harris , 7 F.3d 1537, 1539 (10th Cir. 1993). However, in this case our review is for plain error because defendant did not make any objection to the restitution order. United States v. Wainwright , 938 F.2d 1096, 1098 (10th Cir. 1991). We have jurisdiction pursuant to 28 U. S.C. § 1291, and we affirm. Defendant stipulated in her plea agreement that she and her husband “knowingly and intentionally devised and aided and abetted a scheme to defraud investors of approximately $4,178,697 in funds fromapproximately 700 investors1 This statute was amended April 24, 1996, and it nowprovides: “In each

order of restitution, the court shall order restitu tion to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). Our review in this case, however, is limited to the sentence imposed on the defendant by the district court prio r to the amendment. -3- by means of false representations and promises. . . .” R. Vol. I, Doc. 11, at 9. Defendant agreed the amount of loss to the investor s was $3,472,090, the full amount of the funds misappropriated by defendant an d her husband, less refunds already made to some victims. R. Vol. I, Doc. 31. Restitution orders are governed by the Victim and W itness Protection Act, 18 U.S.C. §§ 3663-3664. At the time of defendant’s sentencing, restitution orders were required to “be consistent with a defendant's ability to pay.” United States v. McIlvain , 967 F.2d 1479, 1481 (10th Cir.1992); see also 18 U.S.C. § 3664(a)(stating that the court shall co nsider “the financial resources of the defendant” in determining whether to order r estitution). 1 “The burden of demonstrating the financial resources of the defend ant and the financial needs of the defendant . . . shall be on the defendant.” 18 U.S.C. § 3664(d). “The fact that a defendant is without financial resources at the t ime of sentencing is not a bar to a restitution order.” United States v. Kunzman , 54 F.3d 1522, 1532 (10th Cir. 1995)(citing United States v. Gabriele , 24 F.3d 68, 73 (10th Cir.1994)). The order “will be upheld if the evidence indicates a d efendant has some assets or-4-

earning potential and thus possibly may be able to pay the amount ordered.” United States v. Rogat , 924 F.2d 983, 985 (10th Cir.), cert. denied , 499 U.S. 982 (1991). The plea agreement stipulated that the district cou rt would order restitution of at least $894,420, the amount that would otherwi se have been subject to criminal forfeiture, and not more than $3,472,090, the amount of full restitution. R. Vol. I, Doc. 11, at 6. Prior to entering the pl ea agreement, the government informed the defendant and the district court that it intended to request the full restitution of $3,472,090. R. Vol. III, at 3. Def endant did not make an objection at that time that she would be financially unable t o make full restitution, id. at 3-4, 9-21, nor did she do so at sentencing, R. Vol. IV, at 9-15, 21-22. Defendant stipulated in the plea agreement that she had “used several bank accounts, including several domestic accounts and o ffshore accounts in the Bahamas, as a repository of investor funds.” R. Vo l. I, Doc. 11, at 10. Defendant does not dispute that evidence was presented in herhusband’s case that approximately $3-4 million of investor money was pl aced in these bank accounts. Defendant told the district court at sentencing that her husband might be able to locate the money deposited in these accounts. R. V ol. IV, at 14. In ordering full restitution, to be paid jointly and severally with defendant’s husband, the district court primarily considered defendant’s ability to i nfluence her husband to locate-5-

the funds secreted in these domestic and offshore b ank accounts. Id. at 16, 17. The court also took into consideration that defenda nt would not likely be able to pay the full restitution when she was released fromprison, but noted that the obligation to make restitution would extend over he r lifetime. The court also noted that defendant should be able to gain employm ent after her release from prison because she was a talented interior decorato r and had a large support group of family and friends. Id. at 7. We conclude that defendant did not meet her burden of demonstrating her inability to pay the restitution order, and that th e district court did not abuse its discretion, let alone commit plain error, in orderi ng defendant to make full restitution. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge