                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              OCT 15 2004
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 03-5198
 IVAN STEPANOVICH KRAVCHUK,                           (D.C. No. 01-CR-106-C)
 (originally indicted as Ivan Stephanovich               (N.D. Oklahoma)
 Krauchuk, then amended to reflect true
 name of Ivan Stepanovich Kravchuk),

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and HARTZ, 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Defendant Ivan Stepanovich Kravchuk appeals the district court’s ruling imposing


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and 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.
restitution in the amount of $9,000. He contends the district court erred in calculating the

amount of restitution, and also in failing to make specific findings to support its

restitution calculation as required by Federal Rule of Criminal Procedure 32(c)(1). Upon

review of the district court’s findings after remand, we affirm.

       In his prior appeal, defendant raised issues challenging both his conviction for

violation of 18 U.S.C. § 2113(b) (theft of an automatic teller machine) and his sentence.

See United States v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003) (Kravchuk I). We

affirmed his conviction and rejected several challenges to his sentence, but remanded, as

is pertinent here, for the district court to make written findings regarding defendant’s

objections to his presentence report.

       In Kravchuk I, defendant disputed the amount of restitution determined to be owed

to one of his victims. He argued there was no evidentiary basis to support the district

court’s adoption of $9,000 as the amount of the loss. In Kravchuk I, this court concluded

“the district court did not clearly err in its factual findings, and did not abuse its discretion

in the calculation of the award.” 335 F.3d at 1158. Therefore, “[b]ecause there was

evidence in the record to support the district court’s factual determination of the $9,000,

we upheld the substance of its findings.” Id. at 1160. However, the district court did not

reduce its factual findings to writing as required by Federal Rule of Criminal Procedure

32(c)(1) and this court remanded to the district court “for it to reduce to writing its factual




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findings regarding Kravchuk’s objections to his presentence report.” Id. at 1161.1

       On remand, the district court made findings in response to each of defendant’s

objections. The factual finding in response to defendant’s objection as to the amount of

the loss states in pertinent part:

       Upon further examination of the information related to money which was
       located in the floor safe, it was a reasonable conclusion that the safe
       contained $9,000 rather than $16,500. The victim is unable to document
       the amount of money he had in the safe at the time [it] was removed by the
       defendant from the store. In addition, statements made by other robbery
       participants and information gathered during the investigation, led to the
       reasonable conclusion that the safe contained no more than $9,000.

Statements of Reasons at 3; see also Transcript of Resentencing at 7. Defendant argues

the district court has again failed to comply with Rule 32(c)(1) by failing to give a

detailed analysis or sufficient reasons for the $9,000 amount and that the case should

again be remanded.

       In Kravchuk I, the court found “the testimony of Kravchuk’s co-participants at


       1
         Rule 32(c)(1) has been reformatted and the current version appears in several
subsections of Federal Rule of Criminal Procedure 32(i). At the time of defendant’s
sentencing, Rule 32(c)(1) read as follows:
       At the sentencing hearing, the court must afford counsel for the defendant and for
       the Government an opportunity to comment on the probation officer’s
       determinations and on other matters relating to the appropriate sentence, and must
       rule on any unresolved objections to the presentence report. The court may, in its
       discretion, permit the parties to introduce testimony or other evidence on the
       objections. For each matter controverted, the court must make either a finding on
       the allegation or a determination that no finding is necessary because the
       controverted matter will not be taken into account in, or will not affect, sentencing.
       A written record of these findings and determinations must be appended to any
       copy of the presentence report made available to the Bureau of Prisons.

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trial about the amount of money each of them had kept from the crime” to be sufficient to

demonstrate that the court did not clearly err in its factual findings, and did not abuse its

discretion in calculating the restitution amount. Id. at 1157. On remand, the district court

made written findings that its determination was based upon “statements made by other

robbery participants, the amount of cash found on the participants at the time of their

arrest, and information gathered during the investigation,” which led “to the reasonable

conclusion that the safe contained a conservative estimate of $9,000.” Transcript of

Resentencing at 7. As instructed, the district court reduced to writing its factual findings

regarding the $9,000 amount of restitution. See Statement of Reasons at 3.

       AFFIRMED.

                                                          Entered for the Court

                                                          Mary Beck Briscoe
                                                          Circuit Judge




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