United States v. Anderson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided November 14, 2008

No. 07-3045

UNITED STATES OF AMERICA,
APPELLEE

v.

WALTER ANDERSON,
APPELLANT

No. 07-3053

UNITED STATES OF AMERICA,
APPELLANT

v.

WALTER ANDERSON,
APPELLEE

Appeals from the United States District Court
for the District of Columbia
(No. 05cr00066-01)
 2

Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for the appellant/cross-appellee. A. J. Kramer, Federal
Public Defender, was on brief. Neil H. Jaffee and Michelle M.
Peterson, Assistant Federal Public Defenders, entered
appearances.
Elissa R. Hart-Mahan, Attorney, United States Department
of Justice, argued the cause for the appellee/cross-appellant.
Nathan J. Hochman, Assistant Attorney General, Jeffrey A.
Taylor, United States Attorney, and Alan Hechtkopf, Attorney,
were on brief.
Before: GINSBURG, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Walter
Anderson pleaded guilty to two counts of federal income tax
evasion, 26 U.S.C. § 7201, and one count of first degree fraud
in violation of the Code of the District of Columbia. D.C. Code
§ 22-3221(a). The district court sentenced Anderson to 108
months’ imprisonment on the federal counts and four years’
imprisonment (concurrent) on the fraud count and ordered him,
on the fraud count, to pay restitution in the amount of
$22,809,032 to the District of Columbia (District). The district
court utilized the 2001 version of the United States Sentencing
Guidelines (2001 Guidelines) but also made clear that the same
sentence was appropriate under the 2000 version thereof (2000
Guidelines). Anderson appeals his sentence, arguing that the
district court’s use of the 2001 Guidelines violated the Ex Post
Facto Clause of Article I, Section 9 of the United States
Constitution and in the alternative that the sentence of
imprisonment is unreasonable. The government cross-appeals
the district court’s denial of restitution to the United States as
part of Anderson’s sentence on the two federal counts. We
affirm the sentence of imprisonment but remand the federal
 3

restitution issue to the district court for further proceedings
consistent with this opinion.
I.
On September 30, 2005, a federal grand jury returned a
superseding indictment charging Anderson with one count of
corruptly obstructing, impeding and impairing the due
administration of the Internal Revenue laws, 26 U.S.C.
§ 7212(a), five counts of federal tax evasion, 26 U.S.C. § 7201,
and six counts of fraud in the first degree in violation of section
3221(a) of Title 22 of the D.C. Code. The 29-page indictment
charged Anderson with using a complex scheme involving
several foreign corporations to conceal approximately $450
million in earnings between 1995 and 1999. Anderson was
charged with not reporting the earnings to the United States or
to the District and evading payment of more than $200 million
in federal income taxes and District use taxes.
On September 8, 2006, Anderson and the government
entered into a plea agreement. Anderson agreed to plead guilty
to two counts of federal income tax evasion covering the 1998
and 1999 tax years and one count of fraud in the first degree
based on conduct occurring from January 1999 through
approximately October 23, 2000. Anderson and the government
agreed to a maximum term of imprisonment of ten years. They
agreed that the district court “is obligated to calculate and
consider, but is not bound by, the United States Sentencing
Guidelines (2001).” Plea Agreement at 1, United States v.
Anderson, Cr. No. 05-0066 (D.D.C. filed Sept. 8, 2006) (Plea
Agreement) (emphasis added). They also agreed that the federal
tax loss exceeded $100 million for the purpose of calculating a
sentence under the Guidelines. And finally, Anderson “agree[d]
that the court may order restitution pursuant to 18 U.S.C. § 3572
and 16 D.C. Code § 711.” Id. at 2 (emphasis added). On
September 8, 2006, Anderson pleaded guilty to the three counts
pursuant to the plea agreement.
 4

In its sentencing memorandum, the government requested
a ten-year term of imprisonment and full restitution to the
United States and to the District on the counts to which
Anderson pleaded guilty. The government also asserted that the
plea agreement obligated the district court to calculate and
consider the 2001 Guidelines. In his reply to the government’s
sentencing memorandum, Anderson argued for the first time that
the 2000 version of the Guidelines should apply because the
2001 Guidelines were not in effect at the time the federal
offenses were committed. The district court decided to use the
2001 Guidelines as specified in the plea agreement.
At the sentencing hearing, the government requested
restitution as a condition of supervised release. The district
court concluded that it could impose neither supervised release
nor restitution as a condition of supervised release, an issue the
government does not appeal.1 The government then requested
restitution to the United States, relying on the plea agreement
and on 18 U.S.C. § 3663(a)(3). Nevertheless, the district court
held that, because the plea agreement referenced 18 U.S.C.
§ 3572, which covers fines, and not 18 U.S.C. § 3663, which
covers restitution, it could not order restitution on the federal
counts.2

1
The district court concluded that under Federal Rule of Criminal
Procedure 11(c)(1)(C), the parties to a plea agreement must agree to
a term of supervised release for the court to order supervised release.
Anderson did not agree to supervised release. Because the district
court concluded it lacked authority to order supervised release, it also
concluded it was without authority to order restitution as a condition
of supervised release pursuant to 18 U.S.C. §§ 3583(d) and
3563(b)(2). As the government does not appeal these decisions, we
express no opinion as to their merits.
2
The government subsequently moved, pursuant to Fed. R. Crim.
P. 35(a), to correct clear error, which motion the court denied. It
 5

The district court sentenced Anderson to 60 months’
imprisonment on the 1998 count and 48 months’ imprisonment
on the 1999 count, to be served consecutively. It also imposed
a four-year concurrent sentence of imprisonment on the fraud
count. The judge spelled out the factors that influenced his
sentencing decision under 18 U.S.C. § 3553(a). Finally,
Anderson was ordered to pay $22,809,032 in restitution to the
District. In its Memorandum Opinion and Order filed the day
after sentencing, the district court stated that it would have
imposed the same sentence if it had used the 2000 Guidelines
“after consideration of all factors under Section 3553(a).” Mem.
Op. & Order at 2, United States v. Anderson, Cr. No. 05-0066
(D.D.C. filed Mar. 28, 2007) (Mem. Op.). Anderson timely
appealed his sentence and the government timely cross-
appealed.
II.
Anderson makes two challenges to his sentence to wit: (1)
the district court violated the Ex Post Facto Clause by using the
2001 Guidelines and (2) the sentence of 108 months’
imprisonment is unreasonable.3 The government cross-appeals
the district court’s failure to order restitution on the two federal
counts.
A. Ex Post Facto Clause
Anderson first contends that the district court violated the
Ex Post Facto Clause when it used the 2001 Guidelines in

observed, however, “I hope the government will appeal me on [the
federal restitution issue].” Sentencing Hr’g Tr. at 627, United States
v. Anderson, Cr. No. 05-0066 (D.D.C. Mar. 27, 2007) (3/27/07 Sent.
Tr.).
3
Anderson does not challenge the court’s ordering him to pay
$22,809,032 in restitution to the District.
 6

determining his sentence on the two federal counts. Our review
of this question of law is de novo. United States v. Dorcely, 454
F.3d 366, 371 (D.C. Cir. 2006); United States v. Alexander, 331
F.3d 116, 130 (D.C. Cir. 2003).
Anderson was sentenced on March 27, 2007 and, at that
time, the 2006 version of the Guidelines was in effect. It
directed the court to “use the Guidelines Manual in effect on the
date that the defendant is sentenced.” U.S. Sentencing
Guidelines Manual § 1B1.11(a) (2006) (U.S.S.G.). It also
directed the court to apply the Guidelines Manual in effect when
the “offense of conviction was committed” if applying a later
version would violate the Ex Post Facto Clause. Id. at
§ 1B1.11(b); see also United States v. Bolla, 346 F.3d 1148,
1151 n.1 (D.C. Cir. 2003) (“[C]ourts must apply the Guidelines
in effect on the date the offense was committed if using the
Guidelines in effect at the time of sentencing would yield a
longer sentence.”).
Anderson’s plea agreement recited that the district court “is
obligated to calculate and consider, but is not bound by, the
United States Sentencing Guidelines (2001).” Plea Agreement
at 1. In his Reply to the Government’s Memorandum in Aid of
Sentencing filed before sentencing, however, Anderson asked
the district court to consider the 2000 Guidelines because he
committed the offenses in 1998 and 1999. At the sentencing
hearing, the district court concluded that Anderson had waived
any objection to its use of the 2001 Guidelines by entering into
the plea agreement, which specified the 2001 version. The
district court also indicated at the hearing that a 71-month
sentence, the top of the sentencing range suggested under the
2000 Guidelines, would be insufficient. As noted earlier, the
district court subsequently ruled in the alternative that it would
have imposed the same sentence if it had consulted the 2000
version of the Guidelines. Because the district court determined
Anderson’s sentence using both the 2001 Guidelines and, in the
 7

alternative, the 2000 Guidelines, which alternative sentencing
we affirm as set forth infra at II.B., we need not reach
Anderson’s Ex Post Facto Clause challenge.
B. Reasonableness of Sentence
Anderson next argues that his nine-year imprisonment
sentence is unreasonable. In reviewing his sentence, we
undertake a two-part inquiry of any legal error and of the
“overall reasonableness” of the sentence in light of statutory
sentencing factors. United States v. Olivares, 473 F.3d 1224,
1226 (D.C. Cir. 2006); see United States v. Lawson, 494 F.3d
1046, 1056-57 (D.C. Cir. 2007). We review substantive
reasonableness under the abuse of discretion standard. Gall v.
United States, 128 S.Ct. 586, 597 (2007).
Anderson first argues that the district court did not explain
its upward departure from the recommended sentencing range
under the 2000 Guidelines.4 The sentencing court commits
procedural error if it “fail[s] to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 128 S.Ct. at 597; see also In re Sealed
Case, 527 F.3d 188, 193 (D.C. Cir. 2008) (vacating sentence
based on failure to explain upward deviation from advisory
Guidelines range). The district court here held in the alternative
that it “would have imposed the same sentence, even if the
[2000 Guidelines] were applicable, by varying upward under

4
In its Memorandum Opinion and Order filed the day after
sentencing, the district court imposed an alternative sentence using the
2000 Guidelines. Mem. Op. at 2. Because Anderson did not object
to the court’s alleged failure to explain the alternative sentence, we
apply plain error review to this challenge. See In re Sealed Case, 527
F.3d 188, 191-92 (D.C. Cir. 2008) (“Appellant did not object to the
district judge’s failure to explain his reasons [for an above-Guidelines
sentence] either orally or in writing . . . . We therefore review the
sentence for plain error.”).
 8

Booker and the Section 3553(a) factors.” Mem. Op. at 2. It
further noted “after consideration of all factors under Section
3553(a) that [the nine-year imprisonment] sentence is the one
that is ‘sufficient but not greater than necessary.’” Id. (quoting
18 U.S.C. § 3533(a)). The district court had expressly
considered the section 3553(a) factors during the sentencing
hearing and it was therefore unnecessary to repeat them in its
memorandum opinion and order issued thereafter.
Section 3553(a)(1) of Title 18 directs the district court to
consider “the nature and circumstances of the offense and the
history and characteristics of the defendant.” The sentence must
be “sufficient, but not greater than necessary . . . to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.” 18 U.S.C.
§ 3553(a)(2)(A). The sentence should also “afford adequate
deterrence to criminal conduct,” id. § 3553(a)(2)(B), and
“protect the public from further crimes.” Id. § 3553(a)(2)(C).
Anderson points to several mitigating factors that he claims
the district court did not properly consider in sentencing him.
According to Anderson, these factors included his exceptional
work history in the telecommunications industry, favorable
reputation as an honest and fair businessman, contributions to
the development of outer space through commercial and non-
profit entities, assistance to other inmates during his time in
prison, strong relationships with family, relatively modest
lifestyle and the fact that he did not embezzle money from an
employer or harm individuals. Anderson also argued that the
conditions of his pre-sentencing incarceration, which included
seven months in solitary confinement, and a sealed matter
supported a reduced sentence. Anderson further argued that his
age and lack of a criminal history suggested a low probability
for recidivism. He noted that he had already suffered severe
collateral damage due to market forces, the IRS investigation
and his criminal convictions. He also claimed that a lengthy
 9

sentence was not necessary to promote respect for the law or to
deter others from similar conduct.
In express recognition of the conditions and length of
Anderson’s pre-sentence incarceration and the sealed matter, the
district court sentenced Anderson to one year less than the ten-
year maximum permitted by the plea agreement. The district
court emphasized the extent and seriousness of Anderson’s
conduct5 and the need to promote respect for the law and deter
others from similar conduct. Considering the magnitude of
Anderson’s crimes and the need for deterrence, we believe the
district court justified the upward deviation from the 2000
Guidelines’ advisory sentence range and, accordingly, the
district court did not abuse its discretion in sentencing Anderson
to 108 months’ imprisonment.
C. Government’s Cross-Appeal
(Restitution on Federal Counts)
The government cross-appeals the district court’s ruling that
it lacked authority to order restitution to the United States.
While it ordered Anderson to pay $22,809,032 in restitution to
the District on the fraud count, it concluded that the plea
agreement did not authorize restitution to the United States.
United States v. Anderson, 491 F. Supp. 2d 1, 12 (D.D.C. 2007).
We interpret the terms of a plea agreement de novo. United
States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995).
Federal courts have authority to order restitution solely
pursuant to statute. United States v. Bok, 156 F.3d 157, 166 (2d
Cir. 1998) (citing United States v. Helmsley, 941 F.2d 71, 101
(2d Cir. 1991)). Section 3663(a)(1)(A) of Title 18 authorizes the
court to order restitution if the defendant violates certain

5
The district court observed, “This offense is serious. [Anderson]
may be the largest tax evader in the history of the country. If not, he’s
close.” 3/27/07 Sent. Tr. at 627.
 10

criminal statutes set forth therein. The statutes do not include 26
U.S.C. § 7201, the statute Anderson pleaded guilty to violating.
Nevertheless, the district court may also “order restitution in any
criminal case to the extent agreed to by the parties in a plea
agreement.” 18 U.S.C. § 3663(a)(3).
Anderson argues that the plea agreement is ambiguous as to
restitution on the federal counts and should be interpreted
against the government. See United States v. Rodgers, 101 F.3d
247, 253 (2d Cir. 1996) (“In determining whether any particular
plea agreement has been breached, we look to the reasonable
understanding of the parties and resolve any ambiguities in the
agreement against the government.”) (internal citation omitted).
If the parties make clear that the district court is authorized to
order restitution, however, then the use of an interpretive rule for
resolving ambiguities is unnecessary. See United States v.
Heard, 359 F.3d 544, 554 (D.C. Cir. 2004) (finding no
ambiguity in plea agreement because defense counsel made
clear at sentencing hearing that both parties agreed to leave
resolution of issue to district court); United States v. Gary, 291
F.3d 30, 33 (D.C. Cir. 2002) (declining to construe plea
agreement against drafter because agreement was not
ambiguous); United States v. Sparks, 20 F.3d 476, 478 (D.C.
Cir. 1994) (same).
In the section of the plea agreement entitled “Restitution,”
Anderson “agree[d] that the court may order restitution pursuant
to 18 U.S.C. § 3572 and 16 D.C. Code § 711.” Plea Agreement
at 2. But section 3572 of Title 18, titled “Imposition of a
sentence of fine and related matters,” addresses, unsurprisingly,
the imposition of a fine only. Subsection (a) lists several factors
the district court should consider in imposing a fine. Subsection
(b) states, “the court shall impose a fine or other monetary
 11

penalty only to the extent that such fine or penalty will not
impair the ability of the defendant to make restitution.”6
The parties’ citation to 18 U.S.C. § 3572 instead of 18
U.S.C. § 3663(a)(3) in the plea agreement does not preclude our
finding that the parties nonetheless agreed that restitution could
be ordered on the federal counts. First, section 3663(a)(3) does
not require that the plea agreement expressly include the
statutory basis for restitution. Moreover, the government
persuasively explained the reference to section 3572 as a
drafting mistake. If the parties had intended to authorize
restitution to the District only, it would have been unnecessary
to include any statute other than D.C. Code § 16-711. The
reference to a federal statute, albeit an incorrect one, indicates
the parties intended to authorize restitution to the United States
as well as to the District. Most important, the conduct of the
parties plainly reflects their understanding that the district court
had the authority to order restitution to the United States in an
amount to be determined by the court. During the plea hearing,
the assistant United States attorney stated, “The only other thing
I’d ask, that the government is also free to ask for restitution.”
Plea Tr. at 6, United States v. Anderson, Cr. No. 05-0066
(D.D.C. Sept. 8, 2006). Anderson’s counsel stated that the
parties had not agreed on an amount but that “[t]he government
is free to seek restitution under the plea agreement, and we’re
free to propose alternatives or other suggestions to the Court.”
Id. at 16. Anderson’s counsel later argued at sentencing that
Anderson would be better able to make restitution if he served

6
In contrast, the provision of the D.C. Code referenced in the plea
agreement, D.C. Code § 16-711, authorizes the court to order
“reasonable restitution or reparation.” D.C. Code § 16-711 (“In
criminal cases in the Superior Court, the court may, in addition to any
other sentence imposed as a condition of probation or as a sentence
itself, require a person convicted of any offense to make reasonable
restitution or reparation.”).
 12

a shorter sentence. Specifically, counsel stated, “If Mr.
Anderson is locked up for an extended period of time, he has
very little likelihood of being able to . . . generate wealth with
which to pay back the money that he owes the U.S. Government
and the DC government.” Sentencing Hr’g Tr. at 476, United
States v. Anderson, Cr. No. 05-0066 (D.D.C. Mar. 23, 2007)
(3/23/07 Sent. Tr.). And in his sentencing memorandum
submitted before sentencing, Anderson claimed that he could
not “be directed to pay restitution in an amount exceeding the
tax loss related to the tax evasion counts to which he pleaded
guilty.” Def. Mem. in Aid of Sentencing at 58, United States v.
Anderson, Cr. No. 05-0066 (D.D.C. filed Mar. 2, 2007).
In addition, Anderson’s presentation of evidence at
sentencing regarding the amount of federal tax loss supports the
conclusion that restitution to the United States was contemplated
by the parties. On the second day of the sentencing hearing,
Anderson’s expert witness proposed a lower federal tax loss and
a higher D.C. tax loss than the losses the government had
proposed. Anderson’s overall proposed tax loss was lower than
the government’s proposal. Anderson had no reason to propose
a higher D.C. tax loss if he believed that the district court had
authority to order restitution to the District only. Nor did he
have any reason to propose a lower federal tax loss if he did not
believe the court had authority to order him to make restitution
to the United States. Anderson’s response that he presented
evidence regarding the federal tax loss only because the D.C. tax
loss depended on the federal loss is not supported by the record.
Anderson’s expert witness determined a lower federal tax loss
by classifying certain income as long-term capital gains, which
are taxed at a lower rate. According to Anderson’s expert, the
government classified the income differently, resulting in a
higher tax rate and higher federal tax loss. Nevertheless, based
on our review of the transcript portions included in the record on
appeal, Anderson’s expert did not testify that calculation of the
federal tax loss was necessary to determine the District tax loss.
 13

And the government’s expert witness testified that he used
Anderson’s federal adjusted gross income computed by the IRS,
not the federal tax loss, as a starting point to determine the taxes
Anderson owed the District.
On the third day of the sentencing hearing, Anderson argued
for the first time that 18 U.S.C. § 3572 related to fines and did
not authorize the court to order restitution. His counsel then
said, “But we’re not arguing that that means he . . . can’t be
required to pay restitution if the court orders it.” 3/23/07 Sent.
Tr. at 521.
We conclude that the district court was authorized to order
restitution to the United States pursuant to 18 U.S.C.
§ 3663(a)(3). The parties’ conduct plainly evinced their intent
that the district court could order restitution to both the United
States and the District under the plea agreement. See Heard,
359 F.3d at 554 (parties’ conduct at sentencing hearing clarified
plea agreement).7

7
The district court also concluded that it was without authority to
order restitution on the separate ground that the parties had not agreed
to an amount of restitution or to a method to determine restitution.
Interpreting the phrase “to the extent agreed to by the parties” in 18
U.S.C. § 3663(a)(3), the district court stated that “even if . . . the plea
agreement had been an agreement by [Anderson] that he would pay
restitution, and even if it had cited to 18 U.S.C. § 3663(a)(3) instead
of to 18 U.S.C. § 3572, there still would be no unambiguous meeting
of the minds as to what was agreed.” Anderson, 491 F. Supp. 2d at 11
(emphasis in original). To have a meeting of the minds on all essential
terms, the court concluded, the parties had to have a “mutual
understanding that [Anderson] would pay restitution and in what
amount or, at the very least, how the amount of restitution would be
determined.” Id.
 14

For the foregoing reasons, we affirm the district court’s
sentence of 108 months’ imprisonment and its order of

Although we have not interpreted the phrase “to the extent agreed
to by the parties,” two of our sister circuits have. The Ninth and
Second Circuits have upheld restitution orders under section
3663(a)(3) notwithstanding the parties did not specify an amount of
restitution or a method to determine restitution. See United States v.
Phillips, 174 F.3d 1074, 1076-77 (9th Cir. 1999) (restitution
authorized when defendant agreed to plea agreement that recited, in
part, “that the Court can order you to pay restitution for the full loss
caused by your activities”); United States v. Silkowski, 32 F.3d 682,
685, 690 (2d Cir. 1994) (restitution authorized when defendant agreed
“to make full restitution to the Social Security Administration for the
full amount of the loss suffered by the Social Security Administration
said amount of restitution and loss to be determined by the Court”).
We believe that, while the parties may agree to a specific amount or
to a cap on restitution, such an agreement is not required under section
3663(a)(3). Cf. United States v. Gottesman, 122 F.3d 150, 152 (2d
Cir. 1997) (suggesting in dicta that phrase “to the extent agreed to by
the parties” means court can “order restitution only in an amount not
to exceed that agreed upon by the parties” but expressing no opinion
as to whether parties must agree to amount); United States v. Bartsh,
985 F.2d 930, 932-33 (8th Cir. 1993) (upholding restitution order for
amount below maximum amount agreed to by parties). The Seventh
Circuit has also concluded that parties to a plea agreement need not
agree to an amount of restitution under a statute in pari materia, 18
U.S.C. § 3663A(a)(3), which reads, “The court shall also order, if
agreed to by the parties in a plea agreement, restitution to persons
other than the victim of the offense.” United States v. Peterson, 268
F.3d 533, 534-35 (7th Cir. 2001). While section 3663A(a)(3) does not
contain the phrase “to the extent agreed to by the parties,” the Seventh
Circuit’s observation that it may be impossible in some cases for
parties to reach an agreement if they are required to specify an amount
of restitution would seem to fit section 3663(a)(3) as well. See id.
 15

restitution to the District of Columbia. We reverse the district
court’s holding that it lacks authority to order restitution to the
United States and remand for further proceedings consistent
with this opinion.8
So ordered.

8
As we have noted, the district court sentenced Anderson to four
years’ imprisonment (concurrent) on the fraud count. In its
Memorandum Opinion and Order filed the day after sentencing,
however, the district court increased the sentence on the fraud count
to eight years’ imprisonment. The original judgment, filed March 30,
2007, reflected the increased sentence on the fraud count. Also on
March 30, 2007, Anderson moved to vacate that portion of the
Memorandum Opinion and Order increasing the sentence on the fraud
count. Anderson then filed his appeal on April 9, 2007. On April 16,
2007, the government joined in Anderson’s motion to vacate the
increased sentence of imprisonment on the fraud count. The
government filed its appeal on May 1, 2007. On June 15, 2007, the
district court granted Anderson’s motion to vacate the increased
sentence on the fraud count and filed an amended judgment reinstating
the four-year sentence. We conclude that the district court was
without jurisdiction to enter an amended judgment after the parties
appealed and, accordingly, we vacate it. See United States v. DeFries,
129 F.3d 1293,1302 (D.C. Cir. 1997) (“The filing of a notice of
appeal . . . ‘confers jurisdiction on the court of appeals and divests the
district court of control over those aspects of the case involved in the
appeal.’” (quoting Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982) (per curiam))); cf. Fed. R. App. P. 4(b)(5) (court
can correct sentence under Fed. R. Crim. P. 35(a) notwithstanding
filing of notice of appeal but only within seven days after sentencing).
We also vacate that portion of the judgment entered on March 30,
2007, imposing an eight-year sentence on the fraud count and remand
for resentencing on the fraud count consistent with this opinion.