     Case: 10-50703     Document: 00511752344         Page: 1     Date Filed: 02/08/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 8, 2012
                                     No. 10-50703
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOE ALBERT SMITH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-59-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Joe Albert Smith pleaded guilty pursuant to a written plea agreement to
evasion of payroll taxes and received a sentence of 60 months in prison to be
followed by three years of supervised release. The district court also ordered
Smith to make restitution in the amount of $27,784,112.35. On direct appeal,
Smith argues that his conviction and sentence should be vacated because the
district court did not inform him that it was rejecting the written plea agreement
and did not provide the proper Federal Rule of Criminal Procedure 11 colloquy

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-50703    Document: 00511752344       Page: 2   Date Filed: 02/08/2012

                                   No. 10-50703

when it imposed restitution in an amount greater than the amount specified in
the plea agreement. He additionally argues that the Government breached the
plea agreement and that the district court erred in imposing restitution as a part
of his sentence and in calculating his restitution amount, in part, based on
relevant conduct.
      After plain error review, we affirmed Smith’s conviction and sentence;
however, after concluding that the district court plainly erred by imposing
restitution as a separate component of Smith’s sentence and by relying on
relevant conduct to calculate the restitution sum, we remanded the case for the
limited purpose of allowing the district court to decide whether it wanted to
order restitution as a condition of supervised release and, if so, how much. Upon
remand, the district court entered an amended judgment, clarifying that it was
ordering restitution in the amount of $5,057,119 as a condition of supervised
release.
      In the plea agreement, Smith agreed to pay $5,057,119 in restitution and
also agreed that the restitution amount was the result of his fraudulent conduct.
During the hearing on remand, Smith again acknowledged that $5,057,119 was
the correct restitution amount. Because restitution may be imposed as a
condition of supervised release under 18 U.S.C. § 3583 if the sum of taxes has
been acknowledged or conclusively established or is limited to the underlying
offense of conviction, there is no error, plain or otherwise, in the district court’s
amended restitution order. See United States v. Nolen, 523 F.3d 331, 332 (5th
Cir. 2008); United States v. Nolen, 472 F.3d 362, 382 (5th Cir. 2006).
Accordingly, we AFFIRM the judgment of the district court as amended.




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