* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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. 

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

### FEB 18 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LYNN ROY OYLER, Defendant-Appellant. No. 97-4032 (D.C. No. 96-CR-42-J) (Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Lynn Roy Oyler pled guilty to wire fraud in violati on of 18 U.S.C. § 1343 and willful failure to file a tax return in violati on of 26 U.S.C. § 7203. He was-2-

sentenced to 46 months imprisonment and ordered to pay restitution. Mr. Oyler contends on appeal that the district court erred in determining the amount owed to Mr. Oyler’s victims and abused its discretion in or dering restitution in an amount beyond Mr. Oyler’s ability to pay. We vacate the o rder of restitution and remand for clarification. The district court found that Mr. Oyler took $3,03 4,602.26 from the victims of his scheme. In considering whether to o rder restitution and in what amount pursuant to 18 U.S.C. § 3663(a)(1) and (2), the court stated “it appears to me with the skills that you have and the talents th at you have that it would be a little optimistic to order you to pay $3 million-pl us back to people.” Rec., vol. III, at 12-13. The court then asserted its intenti on to enter a “general order” whereby Mr. Oyler would be required to pay not less than $100 per month during the period of his incarceration and $200 per month or more as determined by the probation officer during the period of his supervis ed release. Id. at 26. However, the docket entry reflects an order of restitution i n the amount of $3,034,602.26. We review the district court’s factual findings sup porting its restitution order for clear error and we review the amount of t he order for an abuse of discretion. See United States v. Grimes , 967 F.2d 1468, 1473 (10th Cir. 1992); United States v. Rogat , 924 F.2d 983, 984-85 (10th Cir. 1991). When a de fendant fails to raise an objection to the sentence before the district court, our review is1 The Victim and Witness Protection Act was amended i n 1996. Several

provisions of the previous version were retained insubstance but renumbered. Although Mr. Oyler was sentenced in January 1997, the parties refer in their briefs to the pre-1996 version of the statute. We employ the post-1996 numbering. -3- for plain error. See Fed. R. Crim. P. 52(b); United States v. Fisher , F.3d , No. 97-5056, 1997 WL 786638, at *3 (10th Cir. Dec. 23, 1997). Section 3663(a)(1) provides that the district courtmay order restitution as part of sentencing. In determining whether to do s o, the court “shall consider”: (I) the amount of loss sustained by any victim as aresult of the offense; and (II) the financial resources of the de fendant, the financial needs and earning ability of the defendan t and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3663(a)(1)(B)(i). 1 It is well established in the Tenth Circuit that a restitution order must be consistent with the defen dant’s ability to pay, but that present indigency “does not bar a restitution orderwhere ‘the evidence indicates a defendant has some assets or earning potential and thus possibly may be able to pay the amount ordered.’” United States v. McIlvain , 967 F.2d 1479, 1481 (10th Cir. 1992) (quoting Rogat , 924 F.2d at 985). Mr. Oyler contends the district court committed sev eral errors in arriving at $3,034,602.26 as the amount owed the victims. Mr. Oyler’s failure to object to this figure at sentencing requires us to review it for plain error. Given the detailed calculations provided by the government an d Mr. Oyler’s own concession2 At points in his brief, Mr. Oyler seems to argue t hat the district court

erred in ordering any restitution at all because to do so would unnecessarily prolong or complicate sentencing in a manner outwei ghing the victims’ interest in restitution. The district court determined at sent encing that an order of restitution was feasible without undue delay. To the extent th e district court found that Mr. Oyler should pay restitution consistent with his ability to do so , it did not abuse its discretion. -4- at sentencing that approximately 260 investors lostsome $3 million, we cannot say the district court’s finding of the amount owedthe victims constituted an obvious and substantial error. See United States v. Frady , 456 U.S. 152, 163 n.14 (1982); United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997). Moreover, disputed questions of fact not raised below are dee med waived on appeal. See Fisher , 1997 WL 786638, at *3; Gilkey , 118 F.3d at 704. We therefore affirm the district court’s finding of the amount owed the vic tims of Mr. Oyler’s actions. 2 As to the amount of restitution Mr. Oyler should pay, the government concedes that ordering Mr. Oyler to pay the full am ount lost by the victims would be an abuse of discretion. Indeed, the district co urt acknowledged at sentencing that defendant could not pay the full amount. More over, we agree with the parties that the record is ambiguous with regard to the amo unt the court ordered Mr. Oyler to pay. Under such circumstances, a remand f or clarification is appropriate. See McIlvain , 967 F.2d at 1481-82; Grimes , 967 F. 2d at 1473-74. We therefore
VACATE the order of restitution and REMAND to the district court for clarification of the total amount Mr. Oyler will be required to pay and in what3 In addition to requesting a remand for clarificatio n, the government asks

us to find that the district court adequately consi dered the needs of Mr. Oyler’s dependents in fashioning its restitution order. Wh ile we do not say that an award in the amount of $100 per month for the period of M r. Oyler’s incarceration and $200 per month for the period of his supervised rel ease would necessarily be improper, or that the district court failed to reco gnize the factors the statute requires it to take into account in making such a d etermination, we cannot proclaim that the district court adequately conside red the needs of defendant’s dependents given the ambiguity as to the actual amo unt ordered. -5- increments. 3
ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge