                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1599
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the Northern
                                       * District of Iowa.
Julie Ann Miller, also known as        *
Julie Johnson, also known as           *
Julie DeBruin, also known as           *
Julie Kerns,                           *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 18, 2004
                                Filed: August 19, 2005
                                 ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      Julie Miller appeals the restitution portion of her sentence1 in this direct
criminal appeal. We affirm.




      1
       The Honorable Linda Reade, United States District Judge for the Northern
District of Iowa.
I.    BACKGROUND

       In January 2001, in Bellevue, Iowa, Miller's paramour killed his roommate,
Greg May. While Miller was not criminally charged in May's death, she did help her
boyfriend remove the body from the house. She later helped her boyfriend clear out
the residence, including May's belongings. The pair sold some of May's belongings,
gave other things to friends and to Goodwill, but loaded the remainder, including an
extensive antique Civil War collection, into a moving van, and the two absconded to
Arizona. Miller contends that she did not know which items in the moving van
belonged to her boyfriend, and which belonged to May. Along the way to Arizona,
Miller helped to either sell off or destroy many of May's belongings.

       Once caught, Miller pled guilty to interstate transport of stolen property. In
addition to a 37-month sentence, Miller was ordered to pay $122,165 in restitution
pursuant to the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A (MVRA). The
restitution order is the only portion of Miller's sentence being challenged in this direct
appeal. Miller stipulated in her plea agreement that the value of May's personal
belongings was between $120,000 and $200,000. But some of that loss was
recovered by law enforcement. And, the presentence investigation report (PSR)
indicated that restitution was still being investigated and would be set at a later date.

       At the sentencing hearing, Officer Rahn testified that law enforcement had not
been able to recover all of May's belongings, and he also acknowledged that there
was no inventory of or insurance records regarding the estate. Rahn noted that Miller
had actually made a list of items to be sold, apparently in an attempt to keep track of
the couple's inventory. Rahn also testified about pictures of both Miller and her
boyfriend taken on the journey to Arizona, which showed some of May's collection
that had not yet been recovered.




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       May's son testified that he knew from personal experience, and from
interviewing friends and other family members, that his father's Civil War collection
was extensive. Prior to the sentencing hearing, the son completed a "declaration of
loss" statement for the probation office, containing a list of items worth $42,165,
which he believed was a partial list of what was stolen from the estate. At sentencing,
the son also produced Exhibit 14, which showed additional losses to his father's estate
in the amount $80,000 for lost property (which included personal property other than
the Civil War collection), and $15,000 in cash that his father usually kept in the
residence. In addition to the aforementioned friends and family, May spoke with an
antique firearms appraiser in coming up with the total valuation for Exhibit 14.

II.   DISCUSSION

        We review for clear error the district court's determination of the amount of
restitution under the MVRA. United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir.
2005). The government has the burden of proving the amount of restitution by a
preponderance of the evidence. United States v. Young, 272 F.3d 1052, 1056 (8th
Cir. 2001). Our circuit has determined that the preponderance-of-evidence burden
in restitution cases is unchanged by the United States Supreme Court's recent decision
in United States v. Booker, 125 S. Ct. 738 (2005). United States v. May, 413 F.3d
841, 849 (8th Cir. 2005) (finding "persuasive" cases from our sister circuits which
hold that Apprendi, Blakely, or Booker do not affect the manner in which restitution
findings can be made).

       Miller contends that the government's evidence regarding the final loss to the
victim's estate, after discounting the items which were ultimately recovered, was not
sufficiently reliable for sentencing purposes. Relying on Young, 272 F.3d 1052,
Miller also argues that allegations in the plea agreement or the PSR do not bind her
to a specific amount of restitution. The defendant in Young challenged the amount
of restitution awarded for the victim's lost profits. The government argued that the

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defendant was bound by unobjected-to admissions regarding lost profits in the PSR.
However, the PSR in Young only recounted the victim's estimate of lost retail sales,
and contained no independent documentation verifying the estimate. Also, the PSR
acknowledged that the amount of restitution owed was uncertain. At sentencing, the
victim elected not to testify, and the government therefore provided no evidence
regarding lost profits. On appeal, the defendant argued that the government's proof
for the restitution amount was lacking. We agreed, and held that "[b]ecause the
district court relied only on the victim's 'uncertain' estimate [in the PSR] in ordering
restitution for lost profits" the district court committed clear error in determining the
amount of restitution. Id. at 1056.

        Young is distinguishable. In the instant case, the government did not simply
rely upon the PSR or stipulated facts from the plea agreement, but instead presented
a plethora of restitution evidence at the sentencing hearing. As indicated, Officer
Rahn testified about items from May's estate that were sold and never recovered,
based upon, among other things, photographs of Miller and her boyfriend. May's son
testified that in order to discover the extent of his father's collection, he interviewed
family, friends and fellow collectors. The son also produced an inventory list for the
probation office and another one for the sentencing hearing, assigning the value to the
still-missing items (including cash) at $137,165. These assigned values were based
upon personal recollection, and consultations with family, friends, and a source
knowledgeable about Civil War weaponry.

       The government concedes that there is some overlap in the son's two lists,
specifically $6,900 attributed to a train, phonographs, and movie posters. The
government argues, however, that Miller failed to object to any double-counting at
the sentencing hearing, and in any event, other items on both lists were not assigned
any value, nullifying the effect of the double-counting.




                                          -4-
       We find that the government met its burden of proving the amount of
restitution by a preponderance of the evidence. As stated above, the government put
on extensive proof at the sentencing hearing, and produced exhibits assigning value
to the estate. Government witnesses provided explanations for items on the list and
how their values were calculated. And, while acknowledging that it was not her
burden to do so, we note that Miller certainly did not put forth any contrary evidence
with regard to valuation.

       Finally, we agree with the government's argument about double-counting. We
note that certain items were not accounted for in the final totals–most notably in
Exhibit 14, where May's son estimated that May kept $15,000 in cash at the
residence. Clearly the district court did not take the missing cash into account in
figuring restitution, because the total–$122,165–equals the exact amount attributed
to missing property (minus suspected missing cash) on both inventory lists.
Accordingly, we find the district court did not clearly err in setting restitution in the
amount of $122,165.

       Miller also argues that the district court ordered restitution without making
findings about her ability to pay restitution. However, the amount of restitution in
this case was set pursuant to the MVRA, which provides that restitution is mandatory,
and shall be imposed "without consideration of the economic circumstances of the
defendant." 18 U.S.C. § 3664(f)(1)(A). Instead, "[t]he offender's ability to pay is
relevant only in determining whether restitution should be paid by lump sum, a
schedule of payments, or nominal payments." United States v. Gray, 175 F.3d 617,
617-18 (8th Cir. 1999). Here the district court required Miller to begin paying by
having her prison wages garnished, and made provisions for future payments when
Miller is placed on supervised release. Thus, we find no error on this point.




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III.   CONCLUSION

       We affirm the restitution order set by the district court.
                       ______________________________




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