                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 29 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-1422
 v.                                               (D.C. No. 96-CR-491-S)
                                                        (Colorado)
 CHRISTOPHER SMITH,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Christopher Smith appeals from the district court’s order of restitution on

resentencing. We affirm.


      *
       This order and judgment is not binding precedent, except under the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.
      The facts of this case are set forth in this court’s prior opinion, United

States v. Smith, 156 F.3d 1046 (10th Cir. 1998)(Smith I). There we reversed the

district court’s prior order of restitution, stating in relevant part as follows:

             The district court ordered restitution in the amount of
      $1,209.98 to cover the cost of both guns stolen from the sporting
      goods store. . . .
             ....
             Mr. Smith argues that the district court ordered him to pay
      restitution in an amount greater than the loss he caused the sporting
      goods store. Although the record on appeal does not include a copy
      of the sentencing hearing transcript, both parties apparently agree
      that the government did not present evidence at the hearing concern-
      ing the appropriate amount of restitution.

Id. at 1057. Because the government bears the burden of proving the amount of

loss for restitution purposes, we reversed for resentencing.

      On resentencing, the government presented the court with a letter from

Jumbo Sports stating that it “suffered a loss of two (2) 45 cal. Semi-Automatic

Hand guns from its inventory. This occurred on January 15, 1996 and was due to

theft. The amount of the 2 Hand guns amounted to $1209.98.” The district court

awarded restitution in the amount of $1209.98.

      Mr. Smith first argues on appeal that the district court violated Mr. Smith’s

ex post facto rights by relying on the Mandatory Victim’s Restitution Act. As he

recognizes, however, this argument is foreclosed by this court’s opinion in United

States v. Nichols, 169 F.3d 1255,1279-80 (10th Cir. 1999), and we will therefore

not consider it further.

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      Mr. Smith also argues that the law of the case precludes the district court

from awarding restitution in the same amount it awarded in the first sentencing

because we reversed the restitution award in the first appeal. We are not

persuaded. Our decision in Smith I was based on the lack of a sentencing hearing

transcript or any other evidence in the record on appeal supporting the restitution

award. The fact that the original record in district court apparently contained the

same or similar letter from Jumbo Sports is irrelevant since that letter was not

before this court in the first appeal.

      While Mr. Smith argues further that one of the guns was recovered and

therefore the award should have been reduced accordingly, there is no evidence

the gun was ever returned to the owner. The record reflects that the second gun

was recovered in a used and battered condition, and that it was retained for

evidence in the trial. The letter from Jumbo Sports declaring that it “suffered a

loss of two” guns is sufficient to support the government’s burden of establishing

that Jumbo Sports in fact sustained the loss of two guns. The district court did

not err in holding Mr. Smith responsible for the whole loss.

      The judgment of the district court is AFFIRMED.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge


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