United States v. Anderson, 080717 FED7, 16-3134
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
|Judge Panel:||Before Ripple, Rovner, and Hamilton, Circuit Judges.|
|Opinion Judge:||ROVNER, Circuit Judge.|
|Party Name:||United States of America, Plaintiff-Appellee, v. Deandre Anderson, Defendant-Appellant.|
|Case Date:||August 07, 2017|
Argued June 7, 2017
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CR-186 - Lynn Adelman, Judge.
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.
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.
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...
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