     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 19, 2018

                                2018COA54

No. 15CA1816, People v. Butcher — Criminal Law —
Restitution; Criminal Procedure — Plain Error

     Reviewing this restitution appeal for plain error, a division of

the court of appeals finds one obvious error involving the

calculation of postjudgment interest. However, exercising its

discretion granted by “may” in Crim. P. 52(b), the division affirms

because the error does not seriously affect the fairness, integrity, or

public reputation of judicial proceedings.
COLORADO COURT OF APPEALS                                        2018COA54



Court of Appeals No. 15CA1816
Teller County District Court Nos. 10CR105 & 11CR118
Honorable Edward S. Colt, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Michael Butcher,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division III
                           Opinion by JUDGE WEBB
                         Tow and Casebolt*, JJ., concur

                           Announced April 19, 2018


Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Often, when an appellate court identifies an obvious but

 unpreserved trial error, the court will reverse under the plain error

 doctrine of Crim. P. 52(b). Yet, if the error does not seriously affect

 the fairness, integrity, or public reputation of judicial proceedings,

 may the court, exercising its discretion, still decline to reverse? We

 answer this novel question in Colorado “yes,” and do so here.

¶2    A jury convicted David Michael Butcher of two counts of

 securities fraud and two counts of theft from at-risk adults.

 Butcher appeals only the trial court’s amended restitution order,

 and on the sole ground that the court erred in its award of

 prejudgment and postjudgment interest. But he failed to raise

 these alleged errors in the trial court, which limits relief to plain

 error. Because the trial court’s single obvious error — accruing

 postjudgment interest from the date of conviction rather than from

 the date of the operative restitution order — does not seriously

 affect the fairness, integrity, or public reputation of judicial

 proceedings, we exercise our discretion and affirm.

                             I. Background

¶3    At the sentencing hearing in February 2013, three months

 after Butcher’s conviction, the prosecutor submitted a proposed


                                     1
 restitution order that included prejudgment and postjudgment

 interest. Attached to the proposed order were spreadsheets

 reflecting the prosecutor’s calculations for each victim. Butcher

 requested a hearing, without stating any specific objection. The

 trial court agreed to delay the restitution hearing pending the

 conclusion of an upcoming trial in a related case.

¶4    But neither party pursued restitution following resolution of

 the related case. In January 2014, the trial court entered the

 prosecutor’s proposed restitution order, in the principal amount of

 $122,000. The court gave Butcher fifteen days to file a written

 objection.

¶5    Fourteen months later, Butcher filed an objection to the

 restitution order, asserting that he was entitled to offsets. But the

 objection did not raise the amounts of prejudgment and

 postjudgment interest awarded. Despite Butcher’s delay, the court

 held a restitution hearing in September 2015.

¶6    At the hearing, the parties addressed only whether the amount

 of principal should be reduced based on various offsets, including a

 portion of the investment that one of the victims had recouped by

 selling real property which Butcher had acquired with some of the


                                   2
 victims’ money. The court agreed that the principal should be

 reduced by $8395.44 and directed the prosecutor to submit a

 proposed amended restitution order. Still, no one said anything

 about interest.

¶7    The prosecutor’s proposed amended restitution order adjusted

 the amount of restitution to each victim, again including

 prejudgment and postjudgment interest. The prosecutor also

 attached spreadsheets reflecting the calculations. Butcher did not

 object to the amended restitution order, and the court entered it.

                           II. Applicable Law

¶8    When a defendant steals money from a victim, the victim is

 entitled to prejudgment interest on the restitution award, accruing

 from the date of the loss to the date of the restitution order. See

 Roberts v. People, 130 P.3d 1005, 1006-10 (Colo. 2006).

 Prejudgment interest at the rate of eight percent annually is

 reasonable. Id. at 1010; see also § 5-12-101, C.R.S. 2017 (“If there

 is no agreement or provision of law for a different rate, the interest

 on money shall be at the rate of eight percent per annum,

 compounded annually.”). Prejudgment interest serves to make the




                                    3
  victim whole based on the loss of use of the money. Roberts, 130

  P.3d at 1009.

¶9     The restitution statute in effect at the time provided that

  victims were entitled to twelve percent annual postjudgment

  interest on their restitution awards. See Ch. 318, sec. 2,

  § 18-1.3-603(4)(b)(I), 2002 Colo. Sess. Laws 1422. Postjudgment

  interest serves to encourage expeditious payment of restitution.

  Roberts, 130 P.3d at 1009.

¶ 10   Turning to the plain error standard, “[a] plain error is one that

  is both ‘obvious and substantial.’” People v. Sandoval, 2018 CO 21,

  ¶ 11 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)). To

  warrant reversal, the error must have “undermined the

  fundamental fairness of the [proceeding] so as to cast serious doubt

  on the reliability of the judgment.” People v. Davis, 2015 CO 36M,

  ¶ 32 (citing Miller, 113 P.3d at 750).

¶ 11   In sentencing cases, our supreme court has reversed for plain

  error where “[t]he trial court’s imposition of an aggravated direct

  sentence to community corrections based on judicial fact-finding

  without a stipulation to that judicial factfinding by the defendant is

  the kind of error that ‘undermine[s] the fundamental fairness’ of the


                                     4
  sentencing proceeding.” Sandoval, ¶ 15 (quoting Davis, ¶ 32). But

  see People v. Banark, 155 P.3d 609, 611 (Colo. App. 2007) (“[W]e

  perceive no reasonable possibility, much less a reasonable

  probability, that defendant was actually prejudiced by the district

  court’s [Blakely] error.”).

             III. Butcher’s Unpreserved Contentions on Appeal

¶ 12     For the first time on appeal, Butcher raises the following

  objections to the amounts of prejudgment and postjudgment

  interest awarded.

        The amount of prejudgment interest in the amended

         restitution order should be reduced based on the offsets to the

         principal.

        The prejudgment interest rate of eight percent should have

         applied to the period from the date of the loss to the date of

         the amended restitution order.

        The postjudgment interest rate of twelve percent should have

         applied only from the date of the amended restitution order.

        The interest should have been calculated as simple interest

         rather than compounded monthly.




                                      5
                A. Did Butcher Waive These Objections?

¶ 13   According to the Attorney General, Butcher waived these

  objections, for two reasons. The record supports the first reason

  but the law does not support the second reason.

¶ 14   First, Butcher’s current challenges to the awarded amounts of

  prejudgment and postjudgment interest would have applied with

  equal force to the prosecutor’s original restitution request and the

  trial court’s original restitution order. But he did not object to the

  amounts of prejudgment and postjudgment interest in either the

  prosecutor’s original request or the court’s original order. The

  record supports this assertion, except as to the offsets that arose

  after entry of the first order, which have been resolved.

¶ 15   Second, “[a] defendant waives his or her objections to the

  amount of restitution by failing to go forward with evidence when

  given the opportunity to do so.” People v. Martinez, 166 P.3d 223,

  224 (Colo. App. 2007) (emphasis added); see also People v. Miller,

  830 P.2d 1092, 1094 (Colo. App. 1991) (same). While this question

  is closer, we decline to apply waiver because doing so would go

  beyond the rationale of Miller, 830 P.2d 1092.




                                     6
¶ 16   The Martinez division did not find a waiver. Instead, the

  division paraphrased Miller. See Martinez, 166 P.3d at 224. In

  Miller, the division said:

             A defendant has the right to be heard
             concerning matters in the presentence report
             or victim impact statement which she believes
             to be untrue. This includes the amount of
             restitution. However, if the defendant fails to
             show that the information is inaccurate or
             untrue, the trial court is entitled to rely upon
             the report or statement as submitted. Wolford
             v. People, 178 Colo. 203, 496 P.2d 1011
             (1972). Additionally, a defendant waives her
             objection to the restitution amount by failing
             to go forward with evidence which would place
             that amount in issue when she is offered the
             opportunity to do so. People v. Powell, 748
             P.2d 1355 (Colo. App. 1987).

  830 P.2d at 1094.

¶ 17   So, Miller stands only for the unremarkable proposition that

  where appellate review depends on factual findings and a defendant

  spurns the opportunity to make an appropriate record, the

  defendant waives appellate review. See, e.g., People v. Alameno, 193

  P.3d 830, 834 (Colo. 2008) (review of a suppression ruling calls for

  factual findings that appellate courts are not positioned to make);

  People v. Huynh, 98 P.3d 907, 913 (Colo. App. 2004) (same).




                                    7
¶ 18     In contrast, Butcher’s objections regarding the amount of

  interest awarded do not require further factual development. All

  information necessary for appellate review appears in the

  spreadsheets attached to the initial and amended restitution orders.

¶ 19     In sum, we decline the Attorney General’s invitation to find

  waiver and turn to Butcher’s plea for plain error review.

      B. Should We Exercise Our Discretion to Reverse for Plain Error?

¶ 20     The Attorney General argues against plain error review, again

  on two grounds. This time, the law and the record support the

  Attorney General on both grounds.

¶ 21     First, the Attorney General points out that the word “may” in

  Crim. P. 52(b) suggests plain error review is a matter of discretion,

  not of right. See Woldt v. People, 64 P.3d 256, 269 (Colo. 2003)

  (explaining that the plain meaning of the word “may” usually

  indicates discretion).

¶ 22     True, our supreme court has never directly addressed the

  issue.1 But in People v. Gingles, 2014 COA 163, ¶ 32, the division


  1In at least one older case, however, the supreme court has said it
  would “elect not” to address an unpreserved issue. Morse v. People,
  168 Colo. 494, 497, 452 P.2d 3, 5 (1969).


                                     8
  held that Crim. P. 52(b) affords “discretion to address errors that

  both are ‘plain’ and ‘affect[] substantial rights.’” (Alteration in

  original.) See also People v. Valencia, 169 P.3d 212, 221 (Colo. App.

  2007) (“Crim. P. 52(b) provides us with discretion to notice ‘[p]lain

  errors or defects’ that ‘were not brought to the attention of the

  court’ . . . .”) (citation omitted), abrogated in part on other grounds

  by Brendlin v. California, 551 U.S. 249 (2007).

¶ 23   Crim. P. 52(b) is very similar to its federal counterpart.

  Compare Fed. R. Crim. P. 52(b) (“A plain error that affects

  substantial rights may be considered even though it was not

  brought to the court’s attention.”), with Crim. P. 52(b) (“Plain errors

  or defects affecting substantial rights may be noticed although they

  were not brought to the attention of the court.”). Because of this

  similarity, federal law interpreting the federal rule of criminal

  procedure is informative.2 See Warne v. Hall, 2016 CO 50, ¶¶ 12-13

  (noting the desirability of interpreting similar Colorado and federal


  2“Because the rules are similar, and because the supreme court
  adopted Crim. P. 52(b) in 1961, seventeen years after Congress
  adopted Fed. R. Crim. P. 52(b), it seems clear that the Colorado rule
  was patterned after the federal rule.” People v. Greer, 262 P.3d 920,
  937 (Colo. App. 2011) (J. Jones, J., specially concurring).


                                      9
  rules similarly); Crumb v. People, 230 P.3d 726, 731 n.5 (Colo.

  2010) (same).

¶ 24   The discretionary view aligns with United States Supreme

  Court precedent. The Court first “articulated the standard that

  should guide the exercise of remedial discretion under Rule 52(b)

  almost 70 years ago in United States v. Atkinson, 297 U.S. 157 . . .

  (1936).” Nguyen v. United States, 539 U.S. 69, 85 (2003).

  “Congress then codified that standard in Rule 52(b).” Id.

¶ 25   In United States v. Olano, 507 U.S. 725, 735 (1993), the Court

  said, “Rule 52(b) is permissive, not mandatory. If the forfeited error

  is ‘plain’ and ‘affect[s] substantial rights,’ the court of appeals has

  authority to order correction, but is not required to do so.” Then it

  discussed the principles that “guide the exercise of remedial

  discretion under Rule 52(b)” and noted that without those limiting

  principles “discretion . . . would be illusory.” Id. at 736-37.

¶ 26   Following Olano, we conclude that relief under Crim. P. 52(b)

  is a matter of discretion, not of right.

¶ 27   Second, the Attorney General continues, exercising discretion

  should be informed by asking whether any errors “seriously affect

  the fairness, integrity or public reputation of judicial proceedings.”


                                     10
  United States v. Young, 470 U.S. 1, 15 (1985) (quoting Atkinson, 297

  U.S. at 160). Yet, the parties have not cited a case, nor have we

  found one, in which our supreme court has expressly adopted or

  rejected this test.

¶ 28   A closer look shows that, on the one hand, in Hagos v. People,

  2012 CO 63, ¶ 18, the court quoted the Young formulation. See

  also Stackhouse v. People, 2015 CO 48, ¶ 34 (Plain error requires

  reversal if it “seriously affects the fairness, integrity or public

  reputation of judicial proceedings.” (quoting Puckett v. United

  States, 556 U.S. 129, 135 (2009))) (emphasis omitted). But, on the

  other hand, the court also said that plain error review leads to

  reversal if it “so undermined the fundamental fairness of the trial

  itself so as to cast serious doubt on the reliability of the judgment of

  conviction.” Hagos, ¶ 14 (citation omitted).

¶ 29   Given these statements, one might ask whether our supreme

  court has simply collapsed the “seriously affects the fairness,

  integrity or public reputation of judicial proceedings” test into

  whether plain errors “cast serious doubt on the reliability of the

  judgment of conviction.” One might even inquire whether the court




                                      11
  implicitly reasoned that every unreliable conviction has such a

  serious effect.

¶ 30   But a restitution error does not taint the underlying judgment

  of conviction. As the court explained in Sanoff v. People, 187 P.3d

  576, 578 (Colo. 2008):

             [T]he revised statutory structure . . .
             undermines the continuing validity of our
             earlier conclusion that the amount of
             restitution must be part of a judgment of
             conviction. In fact, by specifying that an order
             of conviction need only include a
             determination whether the defendant is
             obligated to pay restitution, without
             designation of the amount, the General
             Assembly has made clear its intent that the
             amount of the defendant’s liability no longer be
             a required component of a final judgment of
             conviction . . . . [B]y express legislative action,
             a subsequent determination of the amount of
             restitution owed by a defendant, as
             distinguished from an order simply finding her
             liable to pay restitution, has been severed from
             the meaning of the term “sentence,” as
             contemplated by Crim. P. 32, and therefore
             from her judgment of conviction. Neither
             subsequent proceedings to determine, nor an
             order assessing, a specific amount of
             restitution directly affects that judgment.

  So, looking no further than the “reliability of the judgment of

  conviction” test could suggest a categorical rule foreclosing plain

  error review of all errors involving the amount of restitution.


                                     12
¶ 31   Our supreme court has never addressed plain error when

  faced with a restitution error. In People v. Ortiz, 2016 COA 58,

  ¶ 13, the division “review[ed] [the] defendant’s contention for plain

  error because he failed to argue in the district court that the state

  patrol was not a victim for restitution purposes.” Still, neither Ortiz

  nor any other court of appeals opinion answers the question

  whether all unpreserved but obvious errors in the amount of a

  restitution award demand plain error reversal.

¶ 32   But is trying to answer this question like a solution in search

  of a problem? We know that mathematics is “an exact science.”

  Chartrand v. Brace, 16 Colo. 19, 34, 26 P. 152, 157 (1891). From

  that perspective, every computational error in a restitution award

  that is more than de minimus could be said to undermine the

  fundamental fairness of the sentencing proceeding. And therein lies

  the problem.

¶ 33   Embracing hastily such a broad approach would ignore the

  limitation that plain error restricts an appellate court “to

  correct[ing] particularly egregious errors.” Wilson v. People, 743

  P.2d 415, 420 (Colo. 1987). Yet, how do we draw a line between de

  minimus and “particularly egregious?” To do so, we circle back to


                                     13
  whether errors in calculating interest on a restitution award

  seriously affect the fairness, integrity, or public reputation of

  judicial proceedings.3

¶ 34   Several federal circuits have rejected plain error claims that

  fail to meet the fourth element, without examining the other

  elements. See United States v. Maciel-Vasquez, 458 F.3d 994, 996

  (9th Cir. 2006) (“[The court] need not . . . construe condition [of

  supervised release for purposes of plain error review], because any

  error or prejudice caused by the district court’s decision to impose

  this condition did not seriously affect the fairness, integrity, or

  public reputation of the judicial proceedings.”); United States v.

  Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (“Even if the first three

  elements of the plain error test are satisfied, where the evidence on

  a misdescribed or omitted element of the offense is overwhelming,


  3 Specially concurring in People v. Greer, 262 P.3d 920, 938 (Colo.
  App. 2011), Judge Jones said, “under the current state of the law in
  Colorado, I do not have the authority to apply the fourth prong
  articulated in Olano to an unpreserved claim of error. Whether that
  prong should be applied in plain error review under Crim. P. 52(b)
  is for the Colorado Supreme Court to decide.” In our view, however,
  our supreme court’s citation of the Young formulation in Hagos and
  Stackhouse — both announced after Greer — leave us free to follow
  federal authority.


                                     14
  the fourth element, that the error seriously affects the fairness,

  integrity, or public reputation of judicial proceedings, is not.”);

  United States v. Hunerlach, 197 F.3d 1059, 1069 (11th Cir. 1999)

  (“Even if we were to assume that the district court committed plain

  error, . . . Appellant must show that the error ‘seriously affect[s] the

  fairness, integrity or public reputation of judicial proceedings.’”)

  (citation omitted).

¶ 35     Even so, in this case we eschew that approach because

  considering whether the trial court erred, and, if so, whether any

  error was obvious, shows that the relief to which Butcher would be

  entitled — while more than de minimus — is limited. We apply the

  error and obviousness factors as follows.

        The original restitution order and the amended restitution

         order awarded identical amounts of prejudgment interest.

         Butcher now argues that the prejudgment interest in the

         amended restitution order should have been reduced to

         account for the offset to the principal based on the victim’s

         sale of the property. The record indicates that the victim

         recouped some of the investment in January 2015, which

         would have affected the amount of prejudgment interest, but


                                     15
  only if it had been calculated through the date of the amended

  order, some eight months later. See Roberts, 130 P.3d at 1009

  (noting prejudgment interest is based on the loss of use of the

  stolen money). And because the prosecutor took this offset

  into account when calculating postjudgment interest, we

  discern no error, and therefore no plain error, on this issue.

 As for Butcher’s argument that the interest should have been

  simple interest rather than compounded monthly, the

  prosecutor’s proposed amended restitution orders list twelve

  percent as the “Rate of Interest” and “0.01” as the “monthly

  rate.” As well, the interest accrual goes up slightly each

  month on the same principal amount. That interest was being

  compounded monthly, from the date of the conviction, was

  obvious. Still, the postjudgment interest statute in effect at

  the time did not specify whether interest should be simple

  interest or compounded interest. See 2002 Colo. Sess. Laws

  at 1422. (It has since been amended to specify that it should

  be simple interest. See § 18-1.3-603(4)(b)(I), C.R.S. 2017.)

  Thus, error, if any, would not have been so clear cut and

  obvious that the trial court should have addressed the issue


                              16
  sua sponte. See People v. Valdez, 2014 COA 125, ¶ 27 (where

  case law on an issue is unsettled, an error is not obvious).

 Butcher also argues that the amended restitution order

  incorrectly calculated prejudgment interest (at eight percent)

  through the date of the conviction rather than the date of the

  amended restitution order and that postjudgment interest (at

  twelve percent) was calculated from the date of the conviction

  rather than after the date of the amended restitution order.

  The order recites that twelve percent interest was calculated

  “from the time of conviction.” In terms of postjudgment

  interest, the statute at issue at the time provided that the

  defendant owes interest “from the date of the entry of the

  order” at the rate of twelve percent annually. 2002 Colo. Sess.

  Laws at 1422; see also Roberts, 130 P.3d at 1006

  (Prejudgment interest should be awarded from the time the

  money is stolen “to the time a restitution award is entered.”).

  Therefore, we conclude that the trial court erred, and the error

  was obvious. See Sandoval, ¶ 12 (“We have previously

  explained that ‘[f]or an error to be obvious, the action

  challenged on appeal ordinarily must contravene (1) a clear


                               17
         statutory command; (2) a well-settled legal principle; or (3)

         Colorado case law. Scott v. People, 2017 CO 16, ¶ 16.”).4

¶ 36     Now, we are back to whether this one obvious error seriously

  affects the fairness, integrity, or public reputation of judicial

  proceedings. Viewing the facts through the lens of the following

  precedent shows three reasons why it does not.

        “Generally, courts have relied on the presence of

         ‘overwhelming and uncontroverted evidence’ of guilt as a basis

         for finding that a plain error did not seriously affect the

         fairness, integrity or public reputation of judicial proceedings.”

         United States v. Hayat, 710 F.3d 875, 910 (9th Cir. 2013). The

         evidence of the principal amount Butcher owed as restitution,

         except for the modest offset that the trial court allowed, was

         uncontroverted.

  4 The Attorney General suggests that the trial court may have
  exercised its discretion to increase the rate of prejudgment interest
  from eight percent to twelve percent from the date of the conviction
  until the restitution orders were entered. The record in no way
  indicates that the trial court exercised its discretion in that way,
  nor did the prosecutor request that it do so. Rather, the record
  strongly suggests that prejudgment interest at the rate of eight
  percent was applied up to the date of the conviction, and that
  postjudgment interest at the rate of twelve percent was applied to
  the period following the date of conviction.


                                      18
 “[A] sentencing error seriously affects the fairness, integrity, or

  public reputation of judicial proceedings when a court’s error

  results in imposition of a sentence which is not authorized by

  law.” United States v. Page, 232 F.3d 536, 544 (6th Cir. 2000).

  Butcher has never disputed that the trial court had statutory

  authority to include interest in the restitution award.

 “When we apply the fourth element of plain error review to

  forfeited sentencing errors, the ‘key concern” is ‘whether

  correct application of the sentencing laws would likely

  significantly reduce the length of the sentence.’” United States

  v. Figueroa-Labrada, 720 F.3d 1258, 1268 (10th Cir. 2013)

  (emphasis added) (quoting United States v. Cordery, 656 F.3d

  1103, 1108 (10th Cir. 2011)). The one obvious error at most

  increased the amount Butcher owes by about 12.27%. (The

  amended restitution order calculated interest from November

  2012 until September 2015 at twelve percent rather than eight




                                19
       percent, making the difference four percent over thirty-five

       months, compounded annually.)5

¶ 37   For these reasons, we discern no serious effect on the fairness,

  integrity, or public reputation of judicial proceedings.6

¶ 38   Lastly, what about Ortiz? After all, we need say no more than

  that “one division of the court of appeals is not bound by a decision

  of another division.” People v. Abu-Nantambu-El, 2017 COA 154,

  ¶ 88. Still, “we give such decisions considerable deference.” People

  v. Smoots, 2013 COA 152, ¶ 20.

¶ 39   Ortiz does not indicate whether the Attorney General had

  challenged plain error review, as she does here. Perhaps for that


  5 The magnitude could be even less — accrual at eight percent
  rather than twelve percent for fifteen months (November 2012
  through January 2014). Butcher cites no authority supporting his
  assumption that reconsideration of the January order in September
  2015 alters the “date of the restitution order” for purposes of
  treating further interest as postjudgment. Nor have we found a
  Colorado statute or decision saying that a later modification of the
  amount of an otherwise valid judgment alters the date of the
  original judgment for this purpose.
  6 Of course, a mere interest error does not implicate “the stigma of a

  conviction and the burden of prison time.” People v. Stewart, 55
  P.3d 107, 119 (Colo. 2002). But see People v. Hill, 296 P.2d 121,
  125 n.3 (Colo. App. 2011) (a defendant could have a legal
  malpractice claim against attorney who rendered ineffective
  assistance concerning restitution).


                                    20
  reason, the division did not ask whether the error seriously affected

  the fairness, integrity, or public reputation of judicial proceedings.

  And in any event, the error alleged in Ortiz would have wiped out

  the entire restitution award, not just — as here — a small part of

  the interest.

¶ 40   In conclusion, we exercise our discretion under Crim. P. 52(b)

  and decline to disturb the postjudgment interest award for plain

  error.7

                             IV. Conclusion

¶ 41   The order is affirmed.

       JUDGE TOW and JUDGE CASEBOLT concur.




  7 In saying this much, we take care to point out what we are not
  saying: that a restitution error of about $7500 to $15,000 — the
  magnitude of error at issue — could never satisfy the “seriously”
  test. For example, such an error might constitute the entire
  restitution award or double the amount awarded. We leave the
  resolution of such cases for another day.


                                    21
