                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 3 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 97-2269
v.                                               (District of New Mexico)
                                                 (D.C. No. CR-96-72-JC)
THOMAS DAVID MARTIN,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY and HOLLOWAY, Circuit Judges, and MAGILL, Senior
Circuit Judge. **


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the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.

       Honorable Frank J. Magill, Senior Circuit Judge, United States Court of
      **

Appeals, Eighth Circuit, sitting by designation.
      Thomas D. Martin appeals from the final judgment of the district court

which obligated Martin to pay restitution in the amount of $25,462.97 to the

victims of two robberies in which Martin participated. Martin contends that the

restitution order is illegal because it obligates Martin and a co-defendant to pay

an amount in restitution larger than the actual losses of the victims. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 1 and reverses.

      The restitution order at issue in this case was made pursuant to the Victim

and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663. This court has

summarized the law with regard to restitution orders under the VWPA as follows:

      “A sentencing court may not order restitution under the VWPA in an
      amount greater than the total loss caused by a defendant’s conduct.”
      United States v. Harris, 7 F.3d 1537, 1539 (10th Cir. 1993). In cases
      such as this when there are multiple defendants, “the VWPA does not
      indicate how a court should apportion a restitution award.” Id. at
      1540. As this court has held, however, a sentencing court may not
      require each codefendant to pay restitution for the entire loss
      suffered by the victim, because “victims theoretically could [thereby]
      receive more in restitution than they had lost, a result at odds with
      both the VWPA’s limited purpose and its language.” United States v.
      Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993) (vacating restitution
      order after concluding district court exceeded its statutory authority



      1
        The United States argues that this court lacks jurisdiction to entertain
Martin’s appeal because his notice of appeal was not timely filed. Although the
district court announced Martin’s sentence in open court on July 22, 1997, the
judgment was not entered on the docket until July 30, 1997. Because Martin filed
his notice of appeal on August 8, within ten days of the date the judgment was
entered on the docket, his appeal was timely and this court has jurisdiction. Fed.
R. App. P. 4(b).

                                         -2-
         because total amount of restitution orders imposed on codefendants
         exceeded total loss caused by conspiracy).

United States v. Gottlieb, No. 96-3278, 1998 WL 152984, at *8 (10th Cir. April 3,

1998).

         With that standard in mind, Martin contends that the restitution order is

illegal because under the order he is obligated to pay $25,462.97, the entire

amount of the victims’ losses, while his co-defendant is severally obligated to pay

$6365.24, twenty-five percent of the victims’ losses. 2 If, according to Martin,

both he and his co-defendant were to meet the restitution obligations imposed by

the district court, the victims would receive restitution in amounts exceeding their

losses. In response, the United States confesses error, agreeing that the district

court’s restitution order creates the possibility that the robbery victims will

receive an amount in restitution larger than their actual losses.

         This court has reviewed the parties’ briefs and the record on appeal. In

light of that review and the United States’ confession of error, we conclude that

the district court’s restitution order impermissibly creates the possibility that

Martin and his co-defendant will pay an amount in restitution greater than the




      Martin’s motion to supplement the record with his co-defendant’s
         2

judgment of conviction is hereby granted.

                                           -3-
total loss caused by their conduct. See Gottlieb, 1998 WL 152984, at *8.

Accordingly, we VACATE the district court’s restitution order and REMAND

the case to the district court for resentencing consistent with this opinion. 3

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




      3
        The United States further requests that this court instruct the district court
to make the restitution order joint and several. Under the joint and several
liability requested by the United States, Martin would receive credit for any
payments made by his co-defendant but would remain liable for the entire amount
of the loss should his co-defendant be unable to make restitution. Although the
district court certainly has discretion to impose the restitution obligation joint and
severally, it may also apportion restitution between co-defendants based on each
defendant’s degree of culpability. United States v. Harris, 7 F.3d 1537, 1540
(10th Cir. 1993). We leave that ultimate decision to the sound discretion of the
district court on remand.

                                          -4-
