                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 29 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-30341

              Plaintiff - Appellee,               D.C. No. 1:10-cr-00016-EJL-1

  v.
                                                  MEMORANDUM*
SHANE MERLIN HYMAS; LAURIE
KRECHELLE HYMAS,

              Defendants - Appellants.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                         Argued and Submitted July 8, 2014
                               Seattle, Washington

Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.

       Defendants Shane and Laurie Hymas pleaded guilty to one count each of

bank fraud in violation of 18 U.S.C. § 1344. After a sentencing hearing at which

the court heard evidence “on the issue of restitution,” the district court took the

issue under advisement. Over 521 days later, the district court ordered Shane and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Laurie to pay restitution in the amounts of $718,036.51 and $174,363.19,

respectively. Defendants appeal that order, arguing that it should be vacated as

untimely. Reviewing de novo, United States v. Waknine, 543 F.3d 546, 555 (9th

Cir. 2008), we agree with defendants and vacate the district court’s order.

      The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A(a)(1),

requires the district court to impose restitution when a defendant is convicted of

certain specified crimes. Although the MVRA also requires the district court to

make a “final determination” of restitution within 90 days of sentencing, 18 U.S.C.

§ 3664(d)(5), a court that misses that 90-day deadline retains authority to order

restitution so long as the court “made clear” prior to the deadline’s expiration that

it would do so, “leaving open (for more than 90 days) only the amount,” Dolan v.

United States, 560 U.S. 605, 608 (2010).

      Here, the district court did not make clear prior to the expiration of the 90-

day deadline that it intended to order restitution. At their sentencing hearing,

defendants had argued that the victim banks were not “victims” as that term is

defined under the MVRA. When the district court took the entire “issue of

restitution” under advisement, that threshold question was therefore yet to be

resolved. Thus, it could not have been clear before the district court issued its

order that restitution necessarily would be imposed. That the court made one


                                           2
reference at the sentencing hearing to the “restitution figure” as the matter pending

resolution is insufficient to compel a contrary conclusion.1

      RESTITUTION ORDER VACATED.




      1
             Defendants’ motion to supplement the record on appeal is DENIED.
The documents that defendants seek to make part of the record on appeal are not
necessary to resolve the issue this case presents.

                                          3
