*This order and judgment is not binding precedent, except under the

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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

Lynn Roy Oyler pled guilty to wire fraud in violation of 18 U.S.C. § 1343

and willful failure to file a tax return in violation of 26 U.S.C. § 7203. He was
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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 ordering restitution in an amount

beyond Mr. Oyler’s ability to pay. We vacate the order of restitution and remand

for clarification. 

The district court found that Mr. Oyler took $3,034,602.26 from the

victims of his scheme. In considering whether to order 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 that you have that it would be a

little optimistic to order you to pay $3 million-plus back to people.” Rec., vol.

III, at 12-13. The court then asserted its intention 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 supervised release. Id. at 26. However,

the docket entry reflects an order of restitution in the amount of $3,034,602.26. 

We review the district court’s factual findings supporting its restitution

order for clear error and we review the amount of the 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 defendant

fails to raise an objection to the sentence before the district court, our review is
1The Victim and Witness Protection Act was amended in 1996. Several

provisions of the previous version were retained in substance 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. 

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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 court may order restitution as

part of sentencing. In determining whether to do so, the court “shall consider”:

(I) the amount of loss sustained by any victim as a result of the

offense; and (II) the financial resources of the defendant, the

financial needs and earning ability of the defendant 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 defendant’s ability to pay, but that

present indigency “does not bar a restitution order where ‘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 several 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 and Mr. Oyler’s own concession
2

 At points in his brief, Mr. Oyler seems to argue that the district court

erred in ordering any restitution at all because to do so would unnecessarily

prolong or complicate sentencing in a manner outweighing the victims’ interest in

restitution. The district court determined at sentencing that an order of restitution

was feasible without undue delay. To the extent the district court found that Mr.

Oyler should pay restitution consistent with his ability to do so, it did not abuse

its discretion. 

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at sentencing that approximately 260 investors lost some $3 million, we cannot

say the district court’s finding of the amount owed the 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 deemed 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 victims 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 amount lost by the victims would

be an abuse of discretion. Indeed, the district court acknowledged at sentencing

that defendant could not pay the full amount. Moreover, we agree with the parties

that the record is ambiguous with regard to the amount the court ordered Mr.

Oyler to pay. Under such circumstances, a remand for 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 what
3

In addition to requesting a remand for clarification, the government asks

us to find that the district court adequately considered the needs of Mr. Oyler’s

dependents in fashioning its restitution order. While we do not say that an award

in the amount of $100 per month for the period of Mr. Oyler’s incarceration and

$200 per month for the period of his supervised release would necessarily be

improper, or that the district court failed to recognize the factors the statute

requires it to take into account in making such a determination, we cannot

proclaim that the district court adequately considered the needs of defendant’s

dependents given the ambiguity as to the actual amount ordered. 

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increments.3

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge