United States v. Conerly ( 2002 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-20923
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    AL SEVESTER CONERLY,
    Defendant-Appellant.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-00-CR-522-1
    - - - - - - - - - -
    September 19, 2002
    Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
    PER CURIAM:*
    Al Sevester Conerly appeals the order of restitution in the
    amount of $47,793.79, that was imposed as part of his sentence
    for theft of property in interstate commerce, in violation of
    18 U.S.C. § 659.    He argues that because the value of the
    computers he stole was only $33,377.48, the order was an abuse of
    discretion.    Conerly misconstrues the governing statute, which
    provides for restitution due to damage to or loss of property.
    *
    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    that this opinion should not be published and is not precedent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.
    No. 01-20923
    -2-
    18 U.S.C. § 3663A(b)(1).    While the stolen goods worth $33,377.48
    were not returned to the victim, the remainder of the shipment of
    computers was returned.    Part of that shipment was damaged by
    Conerly.   Restitution in the amount of $33,377.48 for the
    unreturned computers was proper as was restitution for the
    difference between the value of the remainder of the shipment
    when Conerly took possession of it and its value when it was
    recovered and returned to the victim of his theft, i.e.,
    $14,416.31.   18 U.S.C. § 3663A(b)(1)(B).    The Under 18 U.S.C.
    § 3663A(b)(1)(B), the victim was entitled to recover “the greater
    of the value of the property [the entire shipment was worth
    $521,436.10] on the date of the damage [or] loss . . . or the
    value of the property [$521,436.10] on the date of sentencing,
    less the value (as of the date the property is returned) of any
    part of the property that is returned.”     18 U.S.C.
    § 3663A(b)(1)(B).   The restitution calculation is the same under
    either prong of subsection (b)(1)(B).      The district court did not
    abuse its discretion in ordering restitution in the amount of
    $47,793.79.   See United States v. Hughey, 
    147 F.3d 423
    , 436 (5th
    Cir. 1998).
    AFFIRMED.
    

Document Info

Docket Number: 01-20923

Filed Date: 9/24/2002

Precedential Status: Non-Precedential

Modified Date: 4/18/2021