United States v. Carrasquillo-Vilches

United States Court of Appeals
For the First Circuit

No. 21-1355

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL FRANCISCO CARRASQUILLO-VILCHES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Thompson, Selya, and Kayatta,
Circuit Judges.

Stephen V. Manning, with whom Spears Manning & Martini LLC
was on brief, for appellant.
Maarja Tiganik Luhtaru, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
were on brief, for appellee.

May 2, 2022
 SELYA, Circuit Judge. This is a case in which defendant-

appellant Miguel Francisco Carrasquillo-Vilches, an apparent

apostle of audacity, has traveled a winding road that led him from

the finagled occupancy of an upscale apartment to a prison cell.

Following the defendant's guilty plea to charges of falsely

impersonating a federal officer and wire fraud, the district court

imposed five concurrent eighteen-month terms of immurement and

ordered restitution in the amount of $30,605.19. The defendant

appeals, challenging both the sentence and the restitution order.

After careful consideration, we affirm his sentence and affirm all

but a sliver of the restitution order.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. "Because this appeal 'follows a guilty plea, we glean the

relevant facts from the change-of-plea colloquy, the unchallenged

portions of the presentence investigation report (PSI Report), and

the record of the disposition hearing.'" United States v. Merced-

García, 24 F.4th 76, 78 (1st Cir. 2022) (internal quotation

omitted) (quoting United States v. Dávila-González, 595 F.3d 42,

45 (1st Cir. 2010)).

In July of 2019, the defendant moved from Tennessee to

San Juan, Puerto Rico. Prior to moving, he contacted a local

realtor to assist with his search for a residence. The realtor

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put the defendant in contact with a prospective landlord, who had

an upscale apartment for rent.

Negotiations ensued. The defendant wanted a provision

in the lease that would allow him to terminate it at any time

without incurring financial liability. Believing that such an

early-termination provision would more readily be made available

for certain functionaries of the federal government, the defendant

falsely identified himself as an employee of the United States

Department of Homeland Security (DHS). Specifically, he referred

to himself as "Director Tactical Command of the Mid-South Region

for the Homeland Security Investigations agency."

To add a patina of plausibility to his falsehoods, he

generated what appeared to be a chain of emails between his

personal email address and a doctored DHS email address and

displayed this bogus email chain to both the realtor and the

prospective landlord. These emails gave the appearance that DHS

was aware of the defendant's plan to lease an apartment and was in

the process of issuing a formal approval of that plan.

When he submitted his rental application, the defendant

falsely represented that he would be entering the lease on behalf

of DHS and that he would be the employee who occupied the premises.

The application, he said, was "authorized by Bill Whitaker, Sub-

Director of DHS." For aught that appears, Whitaker was a figment

of the defendant's imagination.

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 Even though several of the defendant's representations

were spurious, his rental application was approved and a twelve-

month lease agreement (the Lease) was executed. The Lease bore

the signatures of the landlord, the defendant, and what appeared

to be the authorizing signature of a DHS official (which the

defendant apparently forged). The Lease ran from July 15, 2019 to

July 14, 2020 and identified DHS as the lessee, the defendant as

the occupant, and the landlord as the lessor. The Lease provided

for rent of $7,500 per month, reflecting a total contract price of

$90,000 for the twelve-month term. It also provided for the

immediate delivery of a security deposit in the amount of $7,500.

At the defendant's instance, the Lease contained a

"Diplomatic Clause." This clause made DHS liable for any rent

that might remain unpaid should the defendant vacate the apartment

before the expiration of the Lease. During a later interview with

the probation officer, the defendant indicated that he wanted this

clause in the Lease because he planned to return to Tennessee in

or around December of 2019. DHS, of course, knew nothing about

the Lease and had no knowledge of the "Diplomatic Clause."

The defendant occupied the apartment for the first two

months of the term of the Lease without either delivering the

security deposit or paying the rent. Blaming nonpayment on

processing delays at DHS, the defendant sent the landlord a

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personal check for the overdue amounts ($22,500). The check

bounced and was returned to the landlord for insufficient funds.

The landlord complained to the realtor, and the realtor

belatedly submitted an inquiry to DHS regarding the defendant's

employment status and DHS's role in the Lease. Another month went

by: the defendant continued to reside in the apartment and the

rent continued to go begging.

By this time, the landlord's patience was exhausted and

he brought an eviction proceeding against the defendant in the

Puerto Rico Court of First Instance. During that proceeding, the

defendant admitted to owing "almost $30,000" but continued to lie

about his employment with DHS. He claimed that he expected DHS to

issue a check for the arrearage in short order. Unpersuaded, the

Puerto Rico court ordered the defendant's eviction, and the

defendant vacated the premises.

At around the same time, DHS responded to the realtor's

inquiry. Its response made pellucid that the defendant was not a

DHS employee and had no authority to enter into the Lease on DHS's

behalf.

The scene soon shifted from a civil proceeding to a

criminal proceeding. On October 31, 2019, a federal grand jury

returned an indictment that charged the defendant with one count

of impersonating a federal officer, see 18 U.S.C. § 912, and four

counts of wire fraud related to his interstate email communications

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with the realtor and the landlord, see id. § 1343. After

originally maintaining his innocence, the defendant reversed his

field and entered a straight guilty plea to all five counts of the

indictment. The district court accepted his guilty plea and

ordered the preparation of a PSI Report. In that report, the

probation office recommended a total offense level of thirteen,

which included a six-level increase for the amount of the intended

loss (calculated to be $90,000). See USSG §2B1.1(b)(1)(D). This

offense level, coupled with a criminal history category of I,

yielded a guideline sentencing range (GSR) of twelve to eighteen

months.

The district court convened the disposition hearing on

April 13, 2021. The defendant objected to the PSI Report,

contending that the amount of loss was overstated. The court

overruled the defendant's objection and adopted the guideline

calculations limned in the PSI Report. The defendant then urged

the court to impose a sentence of probation. For its part, the

government urged the court to impose a prison sentence at the top

of the GSR.

The court sentenced the defendant to concurrent

eighteen-month terms of immurement on each of the five counts of

conviction. It also ordered the defendant to pay $30,605.19 in

restitution to the landlord. That sum comprised three months of

unpaid rent ($22,500), the unpaid security deposit ($7,500), and

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the expenses that the landlord incurred in traveling from Florida

to Puerto Rico to appear at the eviction proceeding ($605.19).

This timely appeal followed.

II. ANALYSIS

The defendant challenges his sentence as procedurally

infirm and substantively unreasonable. In addition, he challenges

the restitution order as excessive because it includes

(improperly, in his view) the unpaid security deposit and the

landlord's travel expenses. We address these challenges

sequentially.

A. The Sentence.

Our "review of claims of sentencing error entails a two-

step pavane." United States v. Vélez-Andino, 12 F.4th 105, 112

(1st Cir. 2021) (quoting United States v. Matos-de-Jesús, 856 F.3d

174, 177 (1st Cir. 2017)). Thus, "we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether it is substantively reasonable." United States v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011). "At both steps of

this pavane, our review of preserved claims of error is for abuse

of discretion." United States v. Díaz-Lugo, 963 F.3d 145, 151

(1st Cir. 2020). Within the abuse-of-discretion rubric, "we review

the sentencing court's findings of fact for clear error and

questions of law (including the court's interpretation and

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application of the sentencing guidelines) de novo." United States

v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020).

Against this backdrop, we turn to the defendant's claims

of error (all of which were preserved below).

1. The Procedural Claim. The defendant first asserts

that his sentence was procedurally infirm because the district

court erroneously applied a six-level increase to his base offense

level. This assertion does not withstand scrutiny.

The defendant pleaded guilty both to impersonation of a

federal officer and to wire fraud. Because the wire fraud counts

called for a higher base offense level (seven) than the

impersonation count (six), the former provided the starting point

for calculation of the GSR. See USSG §2J1.4(c)(1).

In fraud cases, the amount of loss — actual or intended

— is an important integer in the calculation of a defendant's base

offense level. USSG §2B1.1 applies in this case, and that

guideline calls for graduated increases to the base offense level

depending on the extent of pecuniary loss sustained by the victim.

See id. §2B1.1(b)(1). For this purpose, "loss" is defined as "the

greater of actual loss or intended loss." Id. §2B1.1, cmt. n.3(A).

When calculating the defendant's base offense level,

both the PSI Report and the district court focused on intended

loss. In relevant part, the applicable sentencing guideline in

effect at the time of the defendant's offenses defined "intended

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loss" as "the pecuniary harm that the defendant purposely sought

to inflict." Id. cmt. n.3(A)(ii)(I). The PSI Report suggested —

and the district court found — that the intended loss was $90,000

(the total amount of rent due under the Lease for the full twelve-

month term). Because this amount exceeded $40,000, a six-level

increase to the defendant's base offense level was in order. See

USSG §2B1.1(b)(1)(D).

The PSI Report justified this intended loss calculation

in two ways. First, it found that the defendant "purposely sought

to inflict" a $90,000 loss on the landlord simply by entering into

the Lease. This finding captured the defendant's subjective intent

and conformed to the guideline's then-current definition of

intended loss. See id. §2B1.1, cmt. n.3(A)(ii). In a subsequent

addendum, however, the probation office cited a case interpreting

an outdated definition of intended loss, see United States v.

Alphas, 785 F.3d 775, 780 (1st Cir. 2015) (applying definition of

"intended loss" prior to 2015 guideline amendments), and described

the $90,000 amount as a "reasonable and foreseeable loss" in the

event of a breach. This description seemed to approach the amount

of intended loss from the standpoint of what was objectively

reasonable. Even so, that addendum noted that "subjective intent

may play some role" and reaffirmed the finding that the defendant

never intended to pay anything owed under the Lease. In this

regard, it depicted the defendant as a "true con artist."

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 At sentencing, the government agreed with the PSI

Report's bottom-line intended loss determination but predicated it

solely on the basis of the defendant's subjective intent. The

government argued that the defendant's persistent lies and his

failure to pay any of the sums owed under the Lease plainly

reflected his intent to fleece the landlord. The defendant

objected to the six-level increase, arguing that he never intended

to default on the Lease and that the government failed to introduce

any evidence to the contrary. He also asserted that, by framing

its intended loss calculation in objective terms, the PSI Report

employed an incorrect legal standard to arrive at its

recommendation for the six-level increase. The district court

resolved this contretemps in the government's favor, finding

abundant evidence to support the defendant's intention to deprive

the landlord of the entire contract price under the Lease.

In this venue, the defendant seizes upon the district

court's statement that it agreed "100 percent" with the PSI

Report's recommendation for a six-level enhancement. Building on

this porous foundation, the defendant suggests that the PSI Report,

by portraying the intended loss (in an addendum) as "reasonable

and foreseeable," used an incorrect legal standard (that is, an

objective standard) to calculate the defendant's intended loss.

In the defendant's view, the district court — by announcing its

"100 percent" agreement with the PSI Report's recommendation —

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adopted this incorrect standard for determining the amount of

intended loss.

The defendant's argument draws some nourishment from a

2015 amendment to the sentencing guidelines. Prior to that

amendment, "intended loss" under USSG §2B1.1 was determined in

this circuit through an objective standard. See, e.g., United

States v. Innarelli, 524 F.3d 286, 291 (1st Cir. 2008) (focusing

"intended loss" inquiry "on the objectively reasonable expectation

of a person in [the defendant's] position at the time" of the

offense). But in 2015, the Sentencing Commission amended USSG

§2B1.1 to clarify that the "intended loss" inquiry must focus on

the degree of "pecuniary harm that the defendant purposely sought

to inflict" through his conduct. USSG §2B1.1, amend. 792. Given

this amendment, the district court was obliged to use a subjective

standard to determine intended loss.

Even so, the defendant's claim that the district court's

intended loss determination rests on an objective standard is too

much of a stretch. The PSI Report, read as a whole (including the

addenda), justified the intended loss calculation in two ways: at

various points, it used both a subjective standard and an objective

standard in explicating its $90,000 intended loss calculation.

Importantly, though, it explicitly described that amount as the

"pecuniary loss the defendant purposely sought to inflict." Even

if we take the district court's "100 percent" comment literally —

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a proposition that we regard as dubious — it would mean that the

district court agreed with the probation office that the intended

loss, whether measured either from a subjective standpoint or an

objective standpoint, was $90,000.

At any rate, the facts on the ground buttress a finding

of fraudulent intent. Noting that the defendant spuriously entered

the Lease "on behalf of the United States Government," the district

court found it "obvious that [the defendant's] intention was not

to pay" any amount that became due under the Lease. What is more,

nothing in the record compelled the district court to conclude

that the defendant had (or reasonably expected to obtain) the funds

needed to make the promised payments.

Notwithstanding his apparent shortage of funds, the

defendant signed the Lease, falsely representing that DHS would

defray the cost. And despite occupying the apartment for a full

three months, he never paid the landlord a single cent. He did

not even deliver the security deposit. Finally, he gave the

landlord a personal check written on insufficient funds. Presented

with credible evidence of the defendant's tendency to tell tall

tales and presented with no credible evidence suggesting that the

defendant (at the time that he entered into the Lease) had any

realistic prospect of being able to pay the rent, we cannot say

that the district court clearly erred in finding that the defendant

never intended to make any payments under the Lease.

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 Nor does it help the defendant's cause that he told the

probation officer that he intended to "pay the rent until the month

of December and return to Tennessee" at that time. Assuming

without deciding that this statement deserved credence, it is at

best a two-edged sword: in light of the evidence establishing the

defendant's fraudulent intent, it simply indicates that he

intended to occupy the apartment rent-free for a minimum of five

months. Applying basic arithmetic, this would mean that the

defendant intended to inflict at least $45,000 of pecuniary loss

upon the landlord (free-riding with respect to five months' rent

and the required security deposit) — an amount that exceeds the

$40,000 threshold needed for the six-level increase in his base

offense level. See USSG §2B1.1(b)(1)(D).

The defendant balks, arguing that he could not have

intended to deprive the landlord of any amount beyond the first

few months' rent because his non-payment of the Lease would have

prompted a reasonable landlord to evict him and secure a

replacement tenant to mitigate the loss. See Imps. Ctr., Inc. v.

Newell Cos., 758 F.2d 17, 20-21 & n.3 (1st Cir. 1985)

(acknowledging application of mitigation doctrine under Puerto

Rico law). But speculation is not proof and, in all events, the

defendant's manifest intent to vacate the property after occupying

it rent-free for five months stops this argument in its tracks.

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 The bottom line is that even if we assume for argument's

sake that the district court erred in finding that the defendant

purposely intended to inflict $90,000 of pecuniary harm on the

landlord through his ruse, that error was harmless. See United

States v. Tavares, 705 F.3d 4, 26 (1st Cir. 2013) (noting

applicability of harmless error doctrine to claims of procedural

error). The record amply supports the finding that the defendant

subjectively intended to inflict at least a $45,000 loss, which

achieves the same six-level enhancement that the district court

thought proper. Accordingly, we discern no procedural error.

2. The Substantive Claim. This brings us to the

defendant's claim that his eighteen-month sentence is

substantively unreasonable. As indicated above, we review this

claim for abuse of discretion. See Holguin-Hernandez v. United

States, 140 S. Ct. 762, 766 (2020).

When confronted with a claim that a sentence is

substantively unreasonable, our "key inquiry is whether the

sentencing court has articulated a plausible rationale and reached

a defensible result." United States v. Coombs, 857 F.3d 439, 452

(1st Cir. 2017). Because "reasonableness is a protean concept,"

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008), "[t]here

is no one reasonable sentence in any given case but, rather, a

universe of reasonable sentencing outcomes," Clogston, 662 F.3d at

592. We will vacate a "sentence as substantively unreasonable

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only if it lies 'outside the expansive boundaries' that surround

the 'universe' of reasonable sentences." Matos-de-Jesús, 856 F.3d

at 180 (quoting Martin, 520 F.3d at 92).

This standard typically presents a defendant "with an

uphill climb." Coombs, 857 F.3d at 452. That climb is made

steeper "where, as here, the challenged sentence is within a

properly calculated GSR." Clogston, 662 F.3d at 593. A defendant

who seeks to challenge such a within-the-range sentence "must

'adduce fairly powerful mitigating reasons and persuade us that

the district judge was unreasonable in balancing pros and cons

despite the latitude implicit in saying that a sentence must be

reasonable.'" United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st

Cir. 2011) (quoting United States v. Navedo-Concepción, 450 F.3d

54, 59 (1st Cir. 2006)).

The defendant strives to persuade us that he has made

this uphill climb. He offers a litany of factors that, in his

view, should have militated in favor of a lighter sentence. He

mentions his college education, his employment history, and his

close relationship with his son as evidence supporting his

potential for rehabilitation and the low likelihood of recidivism.

He also marshals statistics suggesting that defendants convicted

of arguably similar offenses in the District of Puerto Rico often

received sentences of probation.

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 We are not convinced. A defendant cannot simply cherry-

pick mitigating factors which, viewed in isolation, might support

a lighter sentence and ignore the remainder of the relevant factors

(including aggravating factors). In setting forth the reasons for

its sentence, the district court noted that it had considered all

of the sentencing factors set forth in 18 U.S.C. § 3553(a) and

specifically discussed some of the mitigating factors. It then

recounted the course of mendacity that the defendant employed in

perpetuating his "scheme to defraud." The district court also

remarked that the defendant had made false representations

concerning his employment to the Puerto Rico court during the

eviction proceeding. And, finally, the district court stated that

the defendant's case was unique in its experience: it was unaware

of any other case involving the impersonation of a federal officer

in order to commit wire fraud. Based on this case-specific

assessment of the sentencing factors, the district court

determined that a sentence at the top end of the GSR appropriately

"reflect[ed] the seriousness of the offenses, promote[d] respect

for the law, protect[ed] the public from further crimes by [the

defendant], and addresse[d] the issues of deterrence and

punishment."

The district court's analysis constituted a plausible

rationale for the sentence imposed. The defendant showed himself

to be a persistent purveyor of prevarications, who brazenly assumed

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the mantle of a federal officer for his own comfort and

convenience, depriving an innocent third party of the rent for

which he had bargained. That the district court — in reaching

this conclusion — weighed the evidence before it differently than

the defendant would have preferred "does not undermine the

plausibility of [its] rationale." Coombs, 857 F.3d at 452.

The sentence also represented a defensible result. To

begin, a sentence — like this one — that falls "within a properly

calculated guideline sentencing range is entitled to significant

weight." United States v. Angiolillo, 864 F.3d 30, 35 (1st Cir.

2017); see Rita v. United States, 551 U.S. 338, 347 (2007). That

weight is determinative here, given the severity of the offenses

of conviction. Falsely identifying oneself as a federal officer

in order to dupe another party into offering favorable contract

terms is serious business, inviting serious punishment. Examining

the record as a whole, the sentence imposed was "responsive to the

nature and circumstances of the offense, the characteristics of

the offender, the importance of deterrence, and the need for

condign punishment." Matos-de-Jesús, 856 F.3d at 180. And, thus,

we find the sentence well within "'the expansive boundaries' that

surround the 'universe' of reasonable sentences." Id. (quoting

Martin, 520 F.3d at 92).

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 B. The Restitution Order.

The defendant's remaining tranche of challenges targets

the calculation of the district court's restitution order. "We

review restitution orders for abuse of discretion, examining the

court's subsidiary factual findings for clear error and its answers

to abstract legal questions de novo." United States v. Chiaradio,

684 F.3d 265, 283 (1st Cir. 2012).

Under the Mandatory Victims Restitution Act (MVRA),

defendants convicted of certain federal crimes — including (as

relevant here) those "committed by fraud or deceit," 18 U.S.C.

§ 3663A(c)(1)(A)(ii) — must make restitution to their victims to

compensate the victims for their actual losses, see United States

v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018). An "actual loss"

in the MVRA context "is 'limited to [the] pecuniary harm that would

not have occurred but for the defendant's criminal activity.'"

United States v. Simon, 12 F.4th 1, 64 (1st Cir. 2021) (alteration

in original) (quoting Naphaeng, 906 F.3d at 179). For this

purpose, intended loss will not suffice. See Naphaeng, 906 F.3d

at 179.

Appellate courts do not demand absolute precision in the

fashioning of restitution orders. See Simon, 12 F.4th at 64. As

long as a district court's restitution "order reasonably responds

to some reliable evidence, no more is exigible." United States v.

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Sánchez-Maldonado, 737 F.3d 826, 828 (1st Cir. 2013); see Simon,

12 F.4th at 64-65.

In the case at hand, the defendant posits that the

district court doubly erred in compiling its restitution order:

first, by ordering restitution for the unpaid security deposit;

and second, by ordering restitution for the landlord's travel

expenses incurred in connection with the eviction proceeding.1 We

treat each claim of error separately.

1. The Security Deposit. At the commencement of the

Lease, the defendant was obligated to deliver a security deposit

of $7,500. The defendant never fulfilled this obligation, and the

district court included the amount of the security deposit as part

of the landlord's actual loss. The defendant challenges this

ruling, alleging that the inclusion of this amount provides the

landlord with a windfall. In support, the defendant adverts to a

provision in the Lease that, in substance, requires the return of

the security deposit to him at the termination of the Lease except

to the extent that the deposit (or some part of it) is needed to

defray rent arrearages or claims for damage to the demised

premises. The record contains no evidence of any damage to the

premises and — the defendant submits — allowing the landlord to

1 The defendant does not challenge that portion of the
restitution order that requires him to pay the landlord $22,500 in
back rent.

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recover all three months of unpaid rent and to keep the security

deposit without applying it toward the unpaid rent would unjustly

enrich the landlord.

As a general matter, restitution orders should not

generate windfalls. After all, the principal goal of restitution

is "to make the victim whole again," Innarelli, 524 F.3d at 293,

and "an order for restitution ought not to confer a windfall upon

a victim," Naphaeng, 906 F.3d at 179.

Here, however, there was no windfall. Pertinently, the

Lease provides: "In the event that [the lessee] leaves the

property before the end of the [Lease], the Security Deposit[]

will not be returned to [him]." Given this provision, we are

satisfied that the inclusion of the security deposit in the

restitution order reflects a reasonable response to reliable

record evidence. See Sánchez-Maldonado, 737 F.3d at 828. The

defendant was evicted from the apartment before the Lease

terminated and the provisions of the Lease permitted the landlord

to retain the security deposit upon an early departure, whether

voluntary or involuntary. The district court, therefore, did not

abuse its discretion by including the amount of the security

deposit in its restitution order.2

2 The defendant suggests that the government did not develop
this argument below, but the record belies this suggestion. The
government introduced the Lease as a sentencing exhibit and
underscored the provision permitting the landlord to retain the

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 2. The Travel Expenses. The inclusion of the landlord's

travel expenses in the restitution order is a horse of a different

hue. The record discloses that the landlord incurred $605.19 in

expenses traveling from Florida to Puerto Rico in order to

prosecute an eviction proceeding against the defendant in the

Puerto Rico Court of First Instance. At the government's urging,

the district court found these expenses to have been incurred in

a "proceeding[] related" to the defendant's criminal prosecution,

see 18 U.S.C. § 3663A(b)(4), and included them in the restitution

award.

After this appeal was docketed, the government had

second thoughts. In its brief, it conceded that the MVRA did not

authorize the inclusion of these travel expenses in the restitution

order. This concession was appropriate: the MVRA, in relevant

part, provides that a restitution award shall require a defendant

to "reimburse the victim for . . . transportation[] and other

expenses incurred during participation in the investigation or

prosecution of the offense or attendance at proceedings related to

the offense." See id. The Supreme Court has held that — for such

transportation expenses to be includable in a restitution award —

the "proceedings related to the offense" must be criminal in

security deposit in the event of early departure. And in all
events, "[w]e are at liberty to affirm a district court's judgment
on any ground made manifest by the record." United States v.
George, 886 F.3d 31, 39 (1st Cir. 2018).

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nature. See Lagos v. United States, 138 S. Ct. 1684, 1687 (2018).

The travel expenses at issue here were not incurred in connection

with a criminal proceeding but, rather, in connection with a civil

eviction proceeding. Thus, we agree with the parties that those

expenses do not fall within the reach of the MVRA.

Even so, the government's brief attempted to resurrect

the award of travel expenses by arguing — for the first time —

that the travel expenses were appropriately included as a function

of the district court's general sentencing discretion. This

argument, though, withered on the vine. In a post-briefing letter,

see Fed. R. App. P. 28(j), the government withdrew the argument.

We treat a withdrawn argument as waived. See United States v.

Padilla-Galarza, 990 F.3d 60, 87 (1st Cir. 2021).

That ends this aspect of the matter. The claim for

travel expenses has been waived. And in any event, the Lagos

Court's reading of the MVRA, see 138 S. Ct. at 1687, is clear.

Because the travel expenses were improperly included in the

restitution award, that award must be reduced by the amount of

those travel expenses ($605.19).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the defendant's sentence, affirm the restitution order

except as to the inclusion of the travel expenses ($605.19), and

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remand for the entry of an amended restitution order consistent

with this opinion.

So Ordered.

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