* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-30096

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED RHOADS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 93-CR-354-G

- - - - - - - - - -

September 16, 1998

Before REAVLEY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

 Fred Rhoads appeals the sentence imposed after he was

convicted of mail fraud. He argues that the district court’s

$50,000 restitution order, requiring payment to the Louisiana

Insurance Guaranty Association (LIGA), should have been offset by

$30,000, the amount he agreed to pay the Louisiana Department of

Insurance in a settlement executed prior to sentencing. 

Alternatively, he argues that the district court was foreclosed

from ordering any amount of restitution. Rhoads acknowledges
No. 97-30096

-2-

that he failed to object to the court’s order of restitution, but

argues that the offset issue was preserved for review because it

was brought to the court’s attention by the government’s

attorney. Alternatively, he argues that both the failure to make

an offset and the imposition of any restitution amount to plain

error.

 Under the circumstances of this case, we conclude that

Rhoads did not preserve either issue for review. Under Fed.

R. Crim. P. 52(b), this court may correct forfeited errors only

when the appellant shows the following factors: (1) there is an

error, (2) that is clear or obvious, and (3) that affects the

appellant’s substantial rights. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States

v. Olano, 507 U.S. 725, 731-37 (1993)). If these factors are

established, the decision to correct the forfeited error is

within the sound discretion of the court, and the court will not

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings. Olano, 507 U.S. at 732-37.

 Neither of Rhoads’s contentions demonstrate an error that is

“clear or obvious.” See United States v. Sheinbaum, 136 F.3d

443, 447-49 (5th Cir. 1998); Calverley, 37 F.3d at 162-63. 

Insofar as he argues that the $30,000 civil settlement should be

offset against the $50,000 restitution order, we have recognized

that “a court may offset restitution in a criminal’s case by the

amount of a civil settlement to avoid double recovery by
No. 97-30096

-3-

victims.” United States v. Coleman, 997 F.2d 1101, 1107 (5th

Cir. 1993) (quoting United States v. Rico Indus., Inc., 854 F.2d

710, 715 (5th Cir. 1988)). Rhoads does not demonstrate that an

offset is necessary to prevent a double recovery, as he has not

shown that the combined $80,000 in criminal restitution and

settlement of the civil actions would compensate LIGA for more

than its actual losses. The presentence report estimated LIGA’s

losses at over $19 million.

Insofar as Rhoads argues that the civil settlement

forecloses altogether an order of restitution in the criminal

matter, we conclude that the result in Coleman turned on the fact

that “the same parties were involved in both criminal and civil

proceedings.” Coleman, 997 F.2d at 1107. “[A]s Coleman

stressed, it was the fact that the government negotiated the

settlement with the defendants that created an estoppel issue.” 

Sheinbaum, 136 F.3d at 448. In the pending case, neither the

federal government nor LIGA were parties to the civil settlement.

 AFFIRMED.