* 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should not be published and is not precedent except under the limited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. 96-11160

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JERRY D. HOLLEY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:92-CR-059-P)

_________________________

July 9, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

John Holley was convicted of various bank fraud-related crimes

and was sentenced, inter alia, to pay restitution to the Federal

Deposit Insurance Corporation. He appealed, and this court vacated

the restitution award for recalculation, but we affirmed the

district court in all other respects. See United States v. Holley,
2

23 F.3d 902 (5th Cir. 1994). On remand and after a hearing, the

district court recalculated the restitution amount. Holley now

appeals that amount, and in the alternative seeks to set aside the

entire restitution order.

I.

Holley's challenges to the fact, rather than the amount, of

restitution are not properly before this court. On remand, a

district court may not reconsider any aspect of the sentence not

within the scope of the remand order. See United States v.

Marmolejo, 139 F.3d 528 (5th Cir. 1998). Our remand order was

specifically limited to a “recalculation of the amount of

restitution.” Holley, 23 F.3d at 915 (emphasis added).

II.

Where a district court has considered the proper factors in

calculating an award of restitution, that award will be reviewed

only for abuse of discretion. See United States v. Reese, 998 F.2d

1275, 1280-82 (5th Cir. 1993). We instructed the district court to

offset the loss for which restitution must be made by the value of

the foreclosed property returned to the financial institution

suffering that loss. See Holley, 23 F.3d at 914-15. On remand,

the government stipulated that the value of the loss should be

pegged at $5.7 million, so the only disputed issue was the value of
3

the offset, that is, of the returned property at the time it was

returned.

The district court valued the returned property at $2.8

million, a number derived from the sale price of the property in

1993, six years after it had been returned. Holley contends that

the property had declined in value; he presents appraisals from

1984, 1985, and 1986 in the amounts of $9.25 million, $6.7 million,

and $10 million, respectively, to show that the property was worth

substantially more than $2.8 million in 1987. He argues that the

district court erroneously calculated the property value as of

1993, rather than as of 1987 as required by our mandate. We

disagree.

The district court found Holley's mid-1980's appraisals

essentially incredible. The government's expert estimated the

market value in 1987 to have been $1 million to $1.5 million. The

price paid at the foreclosure sale, he said, had nothing to do with

the actual value but was simply the amount needed to extinguish the

outstanding obligations on the property. 

In fact, there is no evidence that anyone was willing to

purchase the property for any amount of money, prior to its sale in

1993. The district court found that by holding onto the property

through the nadir of the Texas real estate market, the bank was

able to command a higher price in 1993 than it would have received

in 1987 for an essentially defunct shopping center with an

occupancy rate as low as twenty percent. 
4

The district court did not abuse its discretion by finding the

value of the returned property to have been $2.8 million when

acquired. Using this amount, subtracted from the $5.7 million

loss, the court properly set restitution at $2.9 million. The

amended judgment is AFFIRMED.