                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              DEC 9 2004
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-4053
          v.                                          (District of Utah)
 KIRK IRVING KOSKELLA,                           (D.C. No. 00-CR-594-JTG)

               Defendant-Appellant.


                           ORDER AND JUDGMENT            *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.           **




      Kirk Irving Koskella, along with several other individuals whose cases are

currently pending in this court and the District of Utah, pled guilty to conspiring

to defraud the Internal Revenue Service (IRS) in violation of 18 U.S.C. § 371

(2000), and wire fraud in violation of 18 U.S.C. § 1343 (2000). The district court

ordered Koskella to individually pay $14,733,439.91 in restitution, the payment


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
schedule for which was to be determined by the Bureau of Prisons (BOP) and the

United States Probation Office. Koskella appeals the court’s order requiring the

BOP to set the payment schedule and the court’s failure to order restitution jointly

and severally among all co-conspirators. The government concedes both issues.

Taking jurisdiction pursuant to 28 U.S.C. § 1291 (2000) and 18 U.S.C. § 3742(a)

(2000), we find that the district court erred and thus reverse and remand.

                                 BACKGROUND

      Koskella and his co-conspirators created programs designed or advertised

to reduce or eliminate federal income tax liabilities for anyone who invested

money into the programs. After being charged with conspiracy to defraud the IRS

and wire fraud, Koskella pled guilty and agreed to cooperate with the prosecution.

Koskella’s cooperation with the government fell through, and as a result he

sought to obtain new counsel and withdraw his guilty plea. After a competency

hearing, at which the court deemed Koskella competent, the court denied his

motion to withdraw his plea.

      Koskella received the statutory maximum of five years incarceration for

each crime and the court ordered the sentences to be served consecutively. In

addition, the court ordered Koskella to pay $14,733,439.91 in restitution, but

delegated the responsibility of setting a payment schedule to the BOP and the




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Probation Office. Furthermore, despite its intention that the restitution should be

shared jointly and severally, the court’s order was not so limited.

                                      ANALYSIS

      Ordinarily, we review a district court’s order of restitution de novo, but

because Koskella failed to object to the order of restitution, we review it for plain

error. United States v. Overholt , 307 F.3d 1231, 1253 (10th Cir. 2002).

      1. Restitution Payment Schedule Must be Set by the District Court

      We recently held that a district court cannot delegate the responsibility of

determining a payment schedule for restitution pursuant to 18 U.S.C. § 3664.

Overholt , 307 F.3d at 1256. Here, the district court’s order specifically states that

“Restitution shall be paid as determined by the Bureau of Prisons Inmate

Financial Responsibility Program while [Koskella is] incarcerated and the United

States Probation Office following [Koskella’s] release from imprisonment.”

Thus, the court did precisely what   Overholt prohibits it from doing. What is

more, the government concedes in its brief that   Overholt is controlling and

requires reversal. Therefore, we find that the district court committed plain error

when it delegated the scheduling of restitution payments.

      2. Restitution Should Be Joint and Several Among Co-Conspirators

      The conspiracy with which Koskella was charged involves several other

persons. Currently, there are three related cases pending, none of which has yet


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reached the sentencing phase. If Koskella is ordered to pay full restitution and

other co-conspirators are also ordered to pay restitution, the victims may collect

more than their actual loss. This potential outcome contravenes the purpose of

restitution and exceeds the district court’s authority.     See United States v.

Gottlieb , 140 F.3d 865, 873-74 (10th Cir. 1998). Moreover, not only does the

government support joint and several restitution, the record also shows that the

district court itself intended such a result. Koskella’s counsel stated that any

restitution order “would be joint and several with anyone else who would be

convicted of the fraud scheme in this case.” The court agreed. Therefore, on

remand the court should reconsider whether Koskella’s order of restitution should

be joint and several.

       Based on the foregoing, we REVERSE and REMAND to the district court.

                                                          Entered for the Court

                                                          Timothy M. Tymkovich
                                                          Circuit Judge




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