IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30096
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED RHOADS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 93-CR-354-G
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September 16, 1998
Before REAVLEY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Fred Rhoads appeals the sentence imposed after he was
convicted of mail fraud. He argues that the district court’s
$50,000 restitution order, requiring payment to the Louisiana
Insurance Guaranty Association (LIGA), should have been offset by
$30,000, the amount he agreed to pay the Louisiana Department of
Insurance in a settlement executed prior to sentencing.
Alternatively, he argues that the district court was foreclosed
from ordering any amount of restitution. Rhoads acknowledges
*
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that this opinion should not be published and is not precedent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. 97-30096
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that he failed to object to the court’s order of restitution, but
argues that the offset issue was preserved for review because it
was brought to the court’s attention by the government’s
attorney. Alternatively, he argues that both the failure to make
an offset and the imposition of any restitution amount to plain
error.
Under the circumstances of this case, we conclude that
Rhoads did not preserve either issue for review. Under Fed.
R. Crim. P. 52(b), this court may correct forfeited errors only
when the appellant shows the following factors: (1) there is an
error, (2) that is clear or obvious, and (3) that affects the
appellant’s substantial rights. United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States
v. Olano, 507 U.S. 725, 731-37 (1993)). If these factors are
established, the decision to correct the forfeited error is
within the sound discretion of the court, and the court will not
exercise that discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 732-37.
Neither of Rhoads’s contentions demonstrate an error that is
“clear or obvious.” See United States v. Sheinbaum, 136 F.3d
443, 447-49 (5th Cir. 1998); Calverley, 37 F.3d at 162-63.
Insofar as he argues that the $30,000 civil settlement should be
offset against the $50,000 restitution order, we have recognized
that “a court may offset restitution in a criminal’s case by the
amount of a civil settlement to avoid double recovery by
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victims.” United States v. Coleman, 997 F.2d 1101, 1107 (5th
Cir. 1993) (quoting United States v. Rico Indus., Inc., 854 F.2d
710, 715 (5th Cir. 1988)). Rhoads does not demonstrate that an
offset is necessary to prevent a double recovery, as he has not
shown that the combined $80,000 in criminal restitution and
settlement of the civil actions would compensate LIGA for more
than its actual losses. The presentence report estimated LIGA’s
losses at over $19 million.
Insofar as Rhoads argues that the civil settlement
forecloses altogether an order of restitution in the criminal
matter, we conclude that the result in Coleman turned on the fact
that “the same parties were involved in both criminal and civil
proceedings.” Coleman, 997 F.2d at 1107. “[A]s Coleman
stressed, it was the fact that the government negotiated the
settlement with the defendants that created an estoppel issue.”
Sheinbaum, 136 F.3d at 448. In the pending case, neither the
federal government nor LIGA were parties to the civil settlement.
AFFIRMED.