                                                                              FILED
                            NOT FOR PUBLICATION                                DEC 10 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10089

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00018-ECR-
                                                 VPC-1
  v.

JULIUS HOLLEY,                                   MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                           Submitted December 4, 2012**
                             San Francisco, California

Before: D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.

       Julius Holley pled guilty to felony destruction of property within the special

jurisdiction of the United States without a plea agreement. 18 U.S.C. § 1363. The

district court awarded a total of $9,178.92 in restitution for a house and car, owned


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
by the victim Edith Tybo, damaged by Holley. Holley appeals, arguing that the

award was not based on substantial evidence and that portions of the award were

improperly allocated to Edith Tybo, despite her receipt of compensation from third

parties.

       The restitution order is reviewed for abuse of discretion. United States v.

Lazarenko, 624 F.3d 1247, 1249 (9th Cir. 2010). Factual findings supporting a

determination of restitution are reviewed for clear error, while the legality of such

an order, including whether the recipient of restitution is a victim, is reviewed de

novo. Id.

       Substantial evidence supported the restitution award—a detailed affidavit

from the victim and an evidentiary hearing that included testimony from four

witnesses. See United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008)

(“[V]ictim affidavits will generally provide sufficient, reliable evidence to support

a restitution order.”).

       Holley’s second argument is incorrect because “[i]n no case shall the fact

that a victim has received or is entitled to receive compensation with respect to a

loss from insurance or any other source be considered in determining the amount

of restitution.” 18 U.S.C § 3664(f)(1)(B). However, the award of $342.63

“jointly to Tybo and the Victims of Violence Fund” does not comply with 18


                                          2
U.S.C. § 3664(j)(1). First, the amount should have been awarded solely to the

Fund because it “provided . . . the compensation.” 18 U.S.C. § 3664(j)(1). Second,

the order should have indicated that “all restitution of victims required by the order

be paid to the victims before any restitution is paid to such a provider of

compensation.” Id.; see United States v. Stephens, 374 F.3d 867, 872 (9th Cir.

2004) (remanding to district court to clarify priority of payment under 18 U.S.C. §

3664(j)(1)).

      The Restitution Order is vacated in part and affirmed in part:

      Part I - Damage to Residence with respect to the $342.63 awarded jointly to

Tybo and the Victims of Violence Fund is VACATED.

      Part I - Damage to Residence with respect to the $1,039.29 awarded jointly

to Tybo and the Housing Authority is AFFIRMED.

      Part II - Damage to Personal Property is AFFIRMED.

      The case is REMANDED for the limited purpose of modifying the

restitution order with respect to the $342.63 payment to comply with 18 U.S.C. §

3664(j)(1).

      VACATED in part, AFFIRMED in part, and REMANDED.




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