United States v. Anderson, 16-3134

866 F.3d 761

UNITED STATES of America, Plaintiff-Appellee,

v.Deandre ANDERSON, Defendant-Appellant.

No. 16-3134

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2017

Decided August 7, 2017

Benjamin W. Proctor, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Kelly B. Watzka, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, Brian P. Mullins, Attorney, Brian P. Mullins, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rock Island, IL, for Defendant-Appellant.

Before Ripple, Rovner, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

Deandre Anderson, who pleaded guilty to armed bank robbery, challenges an order of restitution. He contends that the district court compelled him to pay an extra $2,107—the value of stolen currency recovered by police minutes after the robbery and held by the government ever since. We agree with Anderson that the restitution award is overstated, and we remand for a determination of the correct amount.

I.

This case is before us after a remand for resentencing. See United States v. Anderson , No. 15-2710 (7th Cir. Feb. 4, 2016). Anderson and three accomplices had robbed a Milwaukee bank in 2014. He went inside with two others (one of them his brother), while a fourth man waited outside in a stolen car. The men grabbed bills and coins, and as they drove away, a dye pack burst inside a bag of currency—leaving some of the bills stained and singed. The robbers tossed the bag from the car, but a citizen found it and gave it to police. Authorities found more of the stolen currency when, a day later, they arrested Anderson's brother driving the stolen getaway car.

Anderson pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and admitted details of the offense in a factual basis incorporated into his plea agreement. He admitted stealing $4,237 in currency and about $500 in coins. The factual basis discloses that $561 was recovered at the time of his brother's arrest, but nothing is said about the discarded bag of money turned over to police.

Before Anderson's initial sentencing, a probation officer forgot to include the $500 in stolen coins when calculating the amount of money taken during the robbery. In her presentence report, the probation officer said that the total amount stolen was $4,237 and that, after subtracting the $561 recovered from the brother, the restitution obligation was $3,676.

At the initial sentencing the prosecutor told the district judge that the parties had agreed that the probation officer mistakenly omitted from her restitution calculation the $500 in stolen coins. And although the prosecutor disclosed that police had recovered $561 and the bag containing $2,107 in currency, she said the discarded bills "were burned and stained" and "non-useable because the dye pack had gone off." For that reason, the prosecutor insisted, Anderson's restitution obligation should include the value of the discarded bills. The judge asked if defense counsel agreed with the prosecutor, and counsel said yes. The judge imposed 156 months' imprisonment and ordered Anderson to pay $4,131 in restitution (an amount that could not have been correct, even under the prosecutor's logic, because $4,237 plus $500 minus $561 equals $4,176, not $4,131).

Anderson filed a notice of appeal, but he did not complain about the calculation of restitution. Instead, after Anderson obtained new counsel, the parties filed a joint motion asserting that, because of problematic conditions of supervised release, we should remand for resentencing in light of United States v. Thompson , 777 F.3d 368 (7th Cir. 2015), and United States v. Kappes , 782 F.3d 828 (7th Cir. 2015). We granted that motion.

On remand the case was assigned to a different judge, and Anderson again changed lawyers. This third lawyer filed objections to the presentence report along with a sentencing memorandum, but counsel still said nothing about restitution. At resentencing counsel limited his objections to those he filed. The judge, however, was doubtful about the presentence report's restitution calculation and sought clarification: "I want to confirm that the parties agree that the restitution is $4,131. The robbers took $4,237 in cash and 500 in coins. 561 was recovered from [Anderson's brother]. This leaves 4131." The lawyers concurred (even though that equation equals $4,176). Throughout this exchange the prosecutor remained silent about the $2,107 in the government's possession. The judge sentenced Anderson to 126 months' imprisonment and again ordered him to pay $4,131 in restitution.

II.

On appeal Anderson argues that the district court erroneously ordered him to pay as restitution the value of the $2,107 in the government's possession. That currency, says Anderson, should have been returned to the bank. The government defends the restitution order by contending that, first, Anderson waived this appellate claim and, second, he failed to prove that the recovered currency should "offset" the loss amount.

We start with the question of waiver. The government asserts that Anderson waived his restitution claim for two reasons: (1) he did not raise the claim at his original sentencing or in his first appeal and (2) he agreed to the restitution amount at resentencing. We disagree. As to the first of these contentions, the answer is straightforward: "A remand in light of Thompson vacates the entire sentence, allowing the district court to alter any aspect of that sentence at resentencing." United States v. Lewis , 842 F.3d 467, 473 (7th Cir. 2016) ; see United States v. Mobley , 833 F.3d 797, 801 (7th Cir. 2016) (explaining that, after a Thompson remand, "the defendant may assert any argument she wishes").

The government's second contention is stronger, but that argument cannot carry the day unless Anderson, by agreeing to the restitution figure proposed by the judge at resentencing, intentionally relinquished a known right. See United States v. Butler , 777 F.3d 382, 387 (7th Cir. 2015). Only if a defendant chooses, "as a matter of strategy, not to present an argument" will that argument be deemed waived. United States v. Garcia , 580 F.3d 528, 541 (7th Cir. 2009) ; see United States v. Burns , 843 F.3d 679, 686–87 (7th Cir. 2016) (concluding that defendant who agreed to loss amount did not waive argument that he was responsible for less than full amount of restitution ordered); Butler , 777 F.3d at 387–88 (concluding that absence of objection to guidelines calculation was forfeiture, not waiver, because court could not conceive of strategic reason for not objecting); United States v. Jaimes-Jaimes , 406 F.3d 845, 848 (7th Cir. 2005) (concluding that defendant's acquiescence to upward adjustment under the sentencing guidelines had not waived appellate challenge to that increase because appellate court could not conceive of strategic reason for not objecting). Nothing in the record before us suggests that Anderson's new lawyer even knew about the robbery proceeds still in the government's possession. And the prosecutor stood by silently when the new judge asked the parties to confirm his restitution math.

What is more, it would not matter if Anderson's new lawyer did know about the $2,107, since the attorney's agreement with the court's loss calculation does not establish that counsel chose, on behalf of Anderson, to forgo objection as a matter of strategy. See United States v. Allen , 529 F.3d 390, 393–95 (7th Cir. 2008) (concluding that defendant did not waive objection to restitution amount, despite counsel's statement that defendant did not object, since defendant lacked strategic reason for abandoning challenge); cf. United States v. Venturella , 585 F.3d 1013, 1019 (7th Cir. 2009) (concluding that defendant waived argument by strategically withdrawing objection to obtain reduction for acceptance of responsibility). Anderson did not rely on the restitution calculation in any way, and saying nothing about the figure simply added thousands more to his restitution obligation. On this record, there is no reason to think that defense counsel intentionally decided against raising the claim presented in this appeal. And though he forfeited this claim, we will review a forfeited claim for plain error.

That brings us to the merits of Anderson's claim. The government says he seeks an "offset" and argues that Anderson was obligated to prove, but did not prove, that the restitution figure should be reduced by the amount of currency in its possession. Those bills, the government says, are "burned and dye stained" and possibly not replaceable by the Treasury Department. We conclude, however, that the government mischaracterizes what Anderson seeks and has misstated the burden of proof.

In a case involving stolen property, the restitution statute directs sentencing courts to order return of the property to the victim or, if return would be impossible, impracticable, or inadequate, to compel the defendant to pay the value of the property less the value of any property already returned. 18 U.S.C. § 3663A(b) ; see Robers v. United States , –––U.S. ––––, 134 S.Ct. 1854, 1857, 188 L.Ed.2d 885 (2014) (noting that, if the property damaged, lost, or destroyed was currency, then the property returned "need not be the very same bills"). Because the government bears the burden of establishing "the amount of the loss sustained by a victim," 18 U.S.C. § 3664(e), it falls on the government to prove that the victim will not be made whole by returning stolen property which has been recovered, see United States v. Fonseca , 790 F.3d 852, 855 (8th Cir. 2015). This is the rule governing the stolen currency in the government's possession.

Anderson is not seeking an "offset" as that word is understood in the restitution statute. A defendant is...