                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                September 13, 2007
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 07-2045
          v.                                                D. N.M .
 LO N N IE M . B RO WN ,                           (D.C. No. CR-05-474 JC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before O’BRIEN, BROR BY, and GORSUCH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      After pleading guilty to one count of assault resulting in serious bodily

injury, Lonnie M . Brown was sentenced to twenty-seven months imprisonment,

followed by three years of supervised release. Brown was ordered to pay


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
restitution to the victim pursuant to the M andatory Victims Restitution Act

(“M VRA”), 18 U.S.C. § 3663A, in the amount of $23,890.02 for treatment at the

Gallup Indian M edical Center, and $4,055.00 for Native American Holistic

Services. 1 The court did not provide any justification for the restitution award,

despite the fact that Brown filed a formal objection to the portion of the

Presentence Report relating to restitution for the Native American Holistic

Services and raised his objections to both the amount and type of this claim at the

sentencing hearing. 2

      On appeal, Brow n contends that the district court erred because the court

did not resolve the dispute concerning the restitution for the Native American

Holistic Services by a preponderance of the evidence and did not place findings

of fact on the record supporting the award. See 18 U.S.C. § 3664(e) (“Any

dispute as to the proper amount or type of restitution shall be resolved by the

court by the preponderance of the evidence.”); United States v. Reano, 298 F.3d


      1
          The M VRA provides “when sentencing a defendant convicted of [assault
resulting in serious bodily injury], the court shall order . . . that the defendant
make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). The
order of restitution shall require the defendant “pay an amount equal to the cost of
necessary medical and related professional services and devices relating to
physical, psychiatric, and psychological care, including nonmedical care and
treatment rendered in accordance with a method of healing recognized by the law
of the place of treatment.” 18 U.S.C. § 3663A(b)(2)(A).
      2
         The probation officer responded to Brown’s objections by suggesting that
the district court review the restitution amount to determinate whether it was
appropriate. The government did not respond to Brown’s objections, either in
writing or at the sentencing hearing.

                                         -2-
1208, 1210-11 (10th Cir. 2002) (“The district court must support its restitution

order with findings of fact in the record.”) (internal quotations and citation

omitted). The government concedes that the district court erred in this regard.

Thus, the only issue is whether the restitution award of $4,055.00 for Native

American Holistic Services should be vacated because the government failed to

prove the facts underlying the award, as Brown contends, 3 or whether the district

court should be instructed to determine what amount, if any, is proper based on

the existing record. 4

       Brown cites our recent decision in United States v. Hudson, 483 F.3d 707

(10th Cir. 2007), in support of his argument. There, we reversed and vacated the

district court’s restitution order, holding “[b]ecause the government failed to

prove that M icrosoft suffered any actual loss, no restitution should have been

ordered.” Id. at 711. W e rejected the government’s assertion that the defendant’s




       3
         It is not entirely clear what relief Brown seeks. At one point, he argues
that the restitution order should be vacated, with instructions that Brown be
resentenced “on the existing record.” (See Reply Br. at 2.) Later, he argues that
the district court should be instructed to order restitution of only the amount
undisputed by Brown – presumably, only for treatment at the Gallup Indian
M edical Center. (Id. at 5.)
       4
        Brown argues that the government should not be allowed to present
additional evidence supporting the restitution award, but the government does not
appear to be seeking this relief. The government requests that this case “be
remanded to the district court for it to make specific findings with respect to the
amount of restitution payable . . . .” (See Answer Br. at 12.)

                                          -3-
actions deprived M icrosoft of potential sales, and found no other basis in the

record for a restitution award. Id.

      Here, by contrast, there is a basis in the record for at least a portion of the

restitution award for Native American Holistic Services. 5 However, the district

court failed to make any specific findings supporting his award. Thus, we remand

so the district court may make specific findings with respect to the amount of

restitution payable, if any, for Native American Holistic Services. The

government shall not have a “second bite at the apple,” and the district court must

make its findings on the evidence already in the record. See United States v.

Campbell, 372 F.3d 1179, 1182 (10th Cir. 2004) (“we decline to give [the

government] a second bite at the apple. . . . [o]ur reversal and remand for

resentencing here does not invite an open season for the government to make the

record that it failed to make in the first instance”) (internal citations and

quotations omitted); see also United States v. Poor Bear, 359 F.3d 1038, 1043

(8th Cir. 2004) (directing that “resentencing be conducted on the existing record

without the opportunity to reopen or add to the record”); United States v. Noble,

367 F.3d 681, 682 (7th Cir. 2004) (“the law does not allow” the government to

have “a second opportunity to meet the burden that it failed to carry at the

original sentencing hearing”); United States v. Hudson, 129 F.3d 994, 995 (8th

      5
         W e note, however, the itemized expenses listed for Native American
Holistic Services total $3,755.00, not $4,055.00, and there has been no
explanation as to the $300 discrepancy.

                                          -4-
Cir. 1997) (“Because we have clearly stated the governing principles as to when

and how disputed sentencing facts must be proved, we direct that resentencing on

remand be conducted on the existing sentencing record, with no opportunity for

either party to reopen or add to that record.”).

      For the foregoing reasons we VAC ATE the portion of the district court’s

restitution order which ordered Brown to pay $4,055.00 for Native American

Holistic Services, and we R EM AND to the district court to make specific

findings based on the record evidence with respect to the amount of restitution

payable, if any, for Native A merican H olistic Services.

                                        FOR TH E CO UR T:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                          -5-
