In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3134
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DEANDRE ANDERSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14‐CR‐186 — Lynn Adelman, Judge.
____________________
ARGUED JUNE 7, 2017 — DECIDED AUGUST 7, 2017
____________________
Before RIPPLE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Deandre Anderson, who pleaded
guilty to armed bank robbery, challenges an order of restitu‐
tion. 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 govern‐
ment ever since. We agree with Anderson that the restitution
award is overstated, and we remand for a determination of
the correct amount.
2 No. 16‐3134
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 Mil‐
waukee 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 ad‐
mitted 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 dis‐
carded 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
No. 16‐3134 3
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 res‐
titution 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 com‐
plain about the calculation of restitution. Instead, after An‐
derson obtained new counsel, the parties filed a joint motion
asserting that, because of problematic conditions of super‐
vised 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 grant‐
ed 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 sen‐
tencing 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 clari‐
fication: “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 equa‐
4 No. 16‐3134
tion equals $4,176). Throughout this exchange the prosecutor
remained silent about the $2,107 in the government’s posses‐
sion. The judge sentenced Anderson to 126 months’ impris‐
onment and again ordered him to pay $4,131 in restitution.
II.
On appeal Anderson argues that the district court erro‐
neously 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 gov‐
ernment 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 as‐
serts that Anderson waived his restitution claim for two rea‐
sons: (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 resentenc‐
ing.” 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 agree‐
ing to the restitution figure proposed by the judge at resen‐
tencing, intentionally relinquished a known right. See United
States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015). Only if a de‐
No. 16‐3134 5
fendant 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) (conclud‐
ing 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 forfei‐
ture, not waiver, because court could not conceive of strate‐
gic 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 in‐
crease 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 stra‐
tegically withdrawing objection to obtain reduction for ac‐
ceptance of responsibility). Anderson did not rely on the res‐
6 No. 16‐3134
titution calculation in any way, and saying nothing about the
figure simply added thousands more to his restitution obli‐
gation. On this record, there is no reason to think that de‐
fense 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 An‐
derson was obligated to prove, but did not prove, that the
restitution figure should be reduced by the amount of cur‐
rency 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, 134 S. Ct.
1854, 1857 (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 gov‐
erning the stolen currency in the government’s possession.
No. 16‐3134 7
Anderson is not seeking an “offset” as that word is
understood in the restitution statute. A defendant is on the
hook for stolen property that truly is unreturnable to the
rightful owner. Sometimes when stolen property cannot be
returned the defendant may seek to reduce his restitution
obligation commensurately with the value of other property
or services conveyed to the victim before sentencing.
See 18 U.S.C. § 3663A(b)(1)(B)(ii); Allen, 529 F.3d at 397
(remanding for valuation of services that defendant had
provided to victim of fraud scheme); United States v. Shepard,
269 F.3d 884, 887–88 (7th Cir. 2001) (remanding for valuation
of improvements that defendant had made to victim’s
home). This is what courts mean by “offset” or “setoff,” and
when offset is the issue, the defendant bears the burden of
proof because he knows best what he returned to the victim.
United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014).
Anderson is not saying he gave the bank a substitute asset;
what he wants is for the government to give back to the bank
the stolen currency held by the government.
According to Anderson, the government never proved
that the stolen currency in its possession could not be re‐
turned to the bank. An example makes his point: Suppose
while fleeing Anderson had dropped a bag of stolen curren‐
cy that a bank employee immediately retrieved and returned
to the vault. That currency would not be a “loss” to the bank
for purposes of restitution. See United States v. Newman, 144
F.3d 531, 543 (7th Cir. 1998) (concluding that restitution fig‐
ure was accurately based on government’s uncontradicted
representation that money strewn across bank floor was not
included in loss amount). That the police, not a bank em‐
ployee, recovered the $2,107 in this case is irrelevant.
See Fonseca, 790 F.3d at 855 (“When a criminal proceeding is
8 No. 16‐3134
completed, the government has a duty to return property in
its custody to the rightful owner, unless it is subject to forfei‐
ture.”). We do not have a situation involving forfeiture or
doubt about the ownership of property in the government’s
possession; the $2,107 always has belonged to the victim
bank, and the government always has known that this money
belongs to the bank. Cf. United States v. Taylor, 128 F.3d 1105,
1111 (7th Cir. 1997) (rejecting bank robbers’ argument that
amount of restitution should be reduced by value of cash re‐
covered from robbers but never “proven to be part of the
proceeds of the robbery”).
The government contends that returning the $2,107 to the
bank would be “inadequate” because, the government as‐
serts, the bills are burned and stained. But in the district
court the prosecutor never sought to prove this assertion,
nor did she ever say why the appearance of the bills matters.
At Anderson’s initial sentencing the prosecutor first dis‐
closed that $2,107 in currency had been recovered but then
said the bills were “non‐useable” because they were “burned
and stained.” There is nothing in the record suggesting that
the bills in the government’s possession are “non‐usable,”
nor did the judge at either sentencing hearing make a find‐
ing on that question. Indeed, the evidence undermines the
government’s position: Just three months before Anderson’s
resentencing, the government had introduced those very
bills during the trial of Anderson’s brother (who was con‐
victed of other charges but acquitted of bank robbery). And
during that trial a Milwaukee police officer testified that he
had counted $2,107 in bills; he described some as having dye
stains but did not say that any were burned, let alone that
the entire bag of money was “non‐usable.” Although the
judge at Anderson’s resentencing would have been free to
No. 16‐3134 9
consider evidence from the brother’s trial, see United States v.
Are, 590 F.3d 499, 524 (7th Cir. 2009), the judge, who presided
over both proceedings, apparently did not recall the officer’s
testimony about the $2,107 when calculating restitution.
The government suggests also that the $2,107 might be
inadequate because, according to a commercial website cited
by Anderson, the Treasury Department may not exchange
bills damaged by explosion. This suggestion is absurd. In‐
stead of a commercial website, we look to applicable federal
law to understand the circumstances in which damaged cur‐
rency may be exchanged for fresh bills. Federal regulations
provide that currency “unfit for further circulation” because
of its physical condition—e.g., “torn, dirty, limp, worn or de‐
faced”—is redeemable at any commercial bank; only if a bill
is so badly damaged that (1) one‐half or less of the note re‐
mains or (2) doubt exists about the denomination will it be
necessary to send that bill to the Treasury Department for
discretionary replacement. See 31 C.F.R. §§ 100.5, 100.7; Ser‐
vices: Redeem Mutilated Currency, Dep’t of Treas.,
http://www.moneyfactory.gov/services/currencyredemption.
html (visited July 26, 2017). The government cannot claim
ignorance about the condition of currency in its custody.
The government’s fallback is that returning the $2,107 to
the victim bank is “impracticable” because Anderson’s
brother has appealed, and, according to the government, the
currency will be needed as evidence if he must be resen‐
tenced. This argument falls flat. The government conceded
at oral argument that a defendant should not be ordered to
pay in restitution the value of useable bills that the govern‐
ment has retained solely as evidence.
10 No. 16‐3134
The Sixth Circuit has a single nonprecedential decision
which favors the government’s position, but we are not per‐
suaded by that decision. In United States v. Calhoun, the de‐
fendant robbed a bank of $4,259. All of that currency had
been recovered and returned to the bank before sentencing,
but the defendant still was ordered to pay restitution in the
same amount. 513 F. App’x. 514, 516 (6th Cir. 2013). On ap‐
peal the defendant argued for the first time that no amount
of restitution was authorized because the bank’s money had
been returned. Id. at 518–19. The Sixth Circuit disagreed, rea‐
soning that the currency given back to the bank had been
burned when the dye pack exploded and, because the de‐
fendant had not raised the issue at sentencing, there was no
way to know if the Treasury Department would replace the
damaged bills. Id. at 519. This reasoning, we conclude, im‐
properly flips the burden of proof from the government to
the defendant; the defendant is not required to disprove the
amount of loss alleged by the government.
At one time the Eighth Circuit followed an approach sim‐
ilar to that in Calhoun, but a more‐recent Eighth Circuit deci‐
sion requires the district court to exclude from the restitution
obligation property that will be returned to the victim. In the
earlier of these decisions, United States v. McCracken, the
Eighth Circuit upheld a restitution order that disregarded
the recovery of $850 from the defendant when he was arrest‐
ed for bank robbery. 487 F.3d 1125, 1128–29 (8th Cir. 2007).
The district court simply had trusted an assurance from gov‐
ernment counsel that the seized money eventually would be
returned to the victim bank and the restitution amount “ad‐
justed” accordingly. Id. More recently, in Fonseca, a case in‐
volving stolen guns recovered and retained by authorities,
the Eighth Circuit vacated a restitution order that included
No. 16‐3134 11
the value of the recovered guns and remanded for a gov‐
ernment accounting of the firearms, including an explana‐
tion of when they would be returned or why they would not
be. 790 F.3d at 855. The court reasoned that the value of guns
should not be included in the restitution obligation if they
would be returned because that would provide double re‐
covery to the victim. Id. The Eighth Circuit attempted to dis‐
tinguish McCracken on the theory that, unlike cash, the value
of guns changes over time and, because of this fluctuation,
the district court had to determine the guns’ value as of the
date of sentencing and reduce the restitution amount accord‐
ingly. Despite the valuation distinction, in McCracken the
court affirmed an order of restitution that included property
seized by the government and slated for return to the victim,
but in Fonseca eight years later the court said that such prop‐
erty is not counted as loss. The government does not rely on
Calhoun or McCracken, and, in our view, Fonseca is the better‐
reasoned of these decisions from out of circuit.
We conclude that plain error resulted from the govern‐
ment’s failure at resentencing to offer evidence that the
$2,107 of stolen currency in its possession is inadequate for
return to the victim bank. Had the prosecutor disclosed to
the resentencing judge (who, quite understandably, may not
have recalled all of the testimony from the trial of Ander‐
son’s brother) that the government still possessed the $2,107,
the judge could have adhered to the restitution statute by
hearing evidence and deciding if any of that amount was re‐
turnable to the bank, 18 U.S.C. § 3663A(b)(1)(B)(i), or if these
bills are so badly damaged that they cannot be replaced. The
government did not prove that the discarded proceeds are
unreturnable; therefore, the order of restitution, by obligat‐
ing Anderson to repay the value of those proceeds, errone‐
12 No. 16‐3134
ously exceeds the proven loss. That error is obvious under
the law, even if not obvious to the judge at resentencing.
See Burns, 843 F.3d at 687–88. And it harms both the defend‐
ant’s substantial rights and the fairness, integrity, and public
reputation of judicial proceedings when district courts order
restitution that exceeds the proven loss. Burns, 843 F.3d at
689; United States v. Yihao Pu, 814 F.3d 818, 831 (7th Cir. 2016);
United States v. Kieffer, 794 F.3d 850, 854 (7th Cir. 2015).
III.
Because the record does not support the amount of loss
reflected in the order of restitution, we VACATE the restitu‐
tion award and REMAND for a hearing limited to determin‐
ing the proper amount of restitution. The remainder of An‐
derson’s sentence is left undisturbed.