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,
* 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should not be published and is not precedent except under the limited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.
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
2
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.
3
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.
4