                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           DEC 30 2003

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                  Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 03-8018
 v.
                                                   (D.C. No. 02-CR-34-D)
                                                         (Wyoming)
 BRET ERICKSON, also known as
 Brett Erickson,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Bret Erickson pled guilty to interstate travel with intent to engage in a

sexual act with a minor, in violation of 18 U.S.C. § 2423(a). The district court

sentenced him to fifty-one months of incarceration and ordered him to pay


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
restitution in the amount of $138,996.61. Mr. Erickson appeals, claiming the

restitution order is illegal. We affirm.

      The amount the district court ordered Mr. Erickson to pay derives from the

costs borne by the State of Wyoming in its care for the minor victim of Mr.

Erickson’s crime. The district court made Mr. Erickson jointly and severally

liable for these costs with the other perpetrators of sex crimes against the victim.

The district court gave Mr. Erickson seven years and three months to pay the full

amount in monthly installments of no less than fifty dollars.

      Mr. Erickson’s first allegation as to the illegality of the restitution order is

that the government failed to prove the amount of the state’s loss, and the

sentencing court failed to make findings as to loss. The court clearly drew from

the presentence report in ordering restitution because the amount it ordered Mr.

Erickson to pay is identical to the amount recommended there. According to that

report, the $138,996.61 includes $59,091.61 already expended by the state for the

victim’s care and $105 per day for the cost of future treatment. The report also

notes that due to the severity of her psychological damage, the victim will remain

a ward of the state until she reaches the age of eighteen. Mr. Erickson lodged no

objection to the report. “Absent such a challenge, the sentencing court can rely

on any uncontested facts contained in the presentence report without requiring

production of evidence.” United States v. Patty, 992 F.2d 1045, 1051 n.5 (10th


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Cir. 1993). Consequently, the state was not required to present additional

evidence as to the amount of loss.

      Mr. Erickson’s quarrel with the district court’s failure to make specific

findings is meritless because “the sentencing court need not make specific factual

findings unless the restitution amount is disputed.” United States v. Gabriele, 24

F.3d 68, 72 (10th Cir. 1994) (citing 18 U.S.C. § 3664(d)). Mr. Erickson never

objected to paying restitution for the costs the state had already expended on the

victim’s behalf, so the court’s order as to that amount will only be reversed for

plain error. United States v. Herndon, 982 F.2d 1411, 1420 (10th Cir. 1992). He

did object to the “amount over and above that already incurred by the state.”

Sent. Tr. at 68. This court reviews “the amount of the restitution order for an

abuse of discretion.” United States v. Rogat, 924 F.2d 983, 985 (10th Cir. 1991).

      The presentence report adopted by the court indicated the victim would be

in the state’s care until the age of majority. At the sentencing hearing, the district

court found “[t]he impairment of this child’s intellectual, psychological,

emotional and behavioral functioning is unquestioned and severe beyond any that

I have seen as a sentencing judge. . . . Based on the testimony of [psychologists

attending the victim], the Court is satisfied, beyond any possible doubt, that this

child’s condition bespeaks severe sexual and physical abuse which will have long-

lasting impact.” Sent. Tr. at 55. Ordering Mr. Erickson to pay costs already


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expended to treat this severe trauma was not error, much less plain error.

Moreover, we cannot hold that including in its restitution order the costs of the

victim’s uncontested long-term care needs was an abuse of discretion.

      Mr. Erickson also asserts his restitution order is illegal because it includes

losses attributable to other defendants. He raises this argument for the first time

on appeal, so we review it for plain error. Herndon, 982 F.2d at 1420. We first

note the statute under which Mr. Erickson received his restitution sentence states

that “[i]f the court finds that more than 1 defendant has contributed to the loss of

a victim, the court may make each defendant liable for payment of the full amount

of restitution.” 18 U.S.C. § 3664(h). In addition, Dr. Lindberg, who treated the

victim, testified at Mr. Erickson’s sentencing hearing that the severe,

collaborative abuse of this child was cumulative in effect and could not be

apportioned to individual perpetrators of crimes against her. See Sent. Tr. at 29-

32. In relation to Mr. Erickson’s crimes, the district court found:

      It is no defense for this defendant to say there were other partners;
      that there were other people who are complicit. He knowingly
      preyed upon this child, exacerbating the extent of her victimization.
      He knew that others were abusing her; and he knew some of the
      manner and means by which they were accomplishing this abuse.
      He used that for his own purpose.

Id. at 55-56. The district court did not commit plain error in making Mr. Erickson

jointly and severally liable for the full cost of this victim’s treatment and care.

      Finally, Mr. Erickson argues “the district court’s failure to make any

                                          -4-
inquiry or finding regarding his financial condition mandates reversal.” Once

again, Mr. Erickson did not make this argument to the district court, so our review

is for plain error. The Mandatory Victim Restitution Act (MVRA) mandates that

a court “order [restitution paid] in the full amount of each victim’s losses as

determined by the court and without consideration of the economic circumstances

of the defendant.” 18 U.S.C. § 3664(f)(1)(A). This court has previously

addressed the same claim brought by a defendant who pleaded guilty to the same

crime as Mr. Erickson. See United States v. Johnson, 183 F.3d 1175, 1178-79

(10th Cir. 1999). We held then and reiterate now that § 3663A(c)(1)(A)(i) of the

MVRA “requires federal district courts to order restitution to the victim of [a

crime of violence] regardless of the defendant’s ability to pay.” Johnson, 183

F.3d at 1179. The district court need not make findings concerning a matter it has

been instructed not to consider. Mr. Erickson has not demonstrated plain error as

to the district court’s restitution order.

       We AFFIRM.

                                                   ENTERED FOR THE COURT

                                                   Stephanie K. Seymour
                                                   Circuit Judge




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