                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50388

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00316-DSF-1

  v.
                                                 MEMORANDUM *
JOHN S. LIPTON,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                           Submitted December 5, 2012 **
                               Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.


       John Lipton appeals a $2,915,427.16 restitution order, imposed after he pleaded

guilty to conspiring to defraud the United States of tax revenue in violation of 18

U.S.C. § 371 and to willfully attempting to evade assessment and payment of

        *
             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).
individual income taxes in violation of 26 U.S.C. § 7201. He argues that the district

court abused its discretion by holding him jointly and severally liable with his co-

conspirators for the full amount of tax loss caused by the conspiracy.

      Under 18 U.S.C. § 3664(h), the district court had the discretion either to “make

each defendant liable for payment of the full amount of restitution or . . . apportion

liability among the defendants to reflect the level of contribution to the victim’s loss

and economic circumstances of each defendant.” The district court expressly noted

its discretion under the statute and chose to impose the full amount of restitution upon

Lipton. The court noted that Lipton was not just a participant in the conspiracy, but

was a manager and likely a leader. These observations are supported by the record;

the district court therefore did not abuse its discretion by imposing the full amount of

restitution upon Lipton.

      Lipton also argues that the district court erred by imposing upon him the full

amount of restitution because lesser amounts were imposed on some (but not all) of

his co-conspirators. Because this argument was not made until his reply brief, it was

waived. See United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006). But even

assuming the argument was not waived, we find it unpersuasive. Under § 3664(h),

a judge may structure differing restitution amounts jointly and severally. See United

States v. Foreman, 329 F.3d 1037, 1039 (9th Cir. 2003) overruled on other grounds


                                           2
by United States v. Jacobo Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en banc);

United States v. Klein, 476 F.3d 111, 114 (2d Cir. 2007).

      Finally, Lipton suggests that his restitution obligation will not be reduced by

the amount of payments made by his co-conspirators. Such a concern is unmerited.

Any payment made by one of the designated co-conspirators will reduce the total

amount of restitution required from Lipton; a contrary result would improperly permit

the United States to recover more restitution than the harm it suffered as a result of the

conspiracy. See Klein, 476 F.3d at 114.

      AFFIRMED.




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