United States v. Deandre Anderson
2017 U.S. App. LEXIS 14484
| 7th Cir. | 2017Background
- In 2014 Anderson and accomplices robbed a Milwaukee bank; he admitted stealing $4,237 in bills and about $500 in coins.
- Police recovered a discarded bag containing $2,107 minutes after the robbery and later recovered $561 at the brother’s arrest.
- Presentence report initially omitted the $500 in coins; restitution calculations during two sentencings produced an imprecise restitution figure of $4,131.
- At both sentencings the prosecutor mentioned the recovered $2,107 as "burned and stained" but presented no proof that the bills were unreturnable; defense counsel did not press the issue.
- The case was remanded for resentencing under Thompson-related precedent; on remand the district court again ordered $4,131 restitution without resolving whether the $2,107 in government custody should be returned to the bank.
- Anderson appealed the restitution award; the Seventh Circuit found the government failed to prove the recovered currency could not be returned and vacated the restitution order, remanding for a limited hearing on the proper restitution amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution may include $2,107 in stolen bills held by the government | Anderson: the $2,107 should be returned to the bank and thus excluded from restitution | Government: Anderson waived the claim and government need not prove currency is returnable; bills are unusable (burned/ dyed) | Court: Government failed to prove bills are unreturnable; restitution including $2,107 was plain error — vacated and remanded for hearing |
| Whether Anderson waived appellate challenge to restitution | Anderson: remand under Thompson vacated sentence so challenge preserved | Government: Anderson agreed to restitution at resentencing and thus waived claim | Court: No waiver — defendant lacked evidence his lawyer intentionally relinquished the issue; review for plain error appropriate |
| Who bears burden to show recovered property can or cannot be returned | Anderson: government must prove recovered property is unreturnable so victim isn't made whole | Government: suggested defendant must disprove government’s loss assertion | Held: Government bears burden to show victim will not be made whole by returning recovered property (per § 3664(e) and precedent) |
| Whether physical condition of recovered currency (dye/burn) relieves government of returning it | Government: bills are burned/dyed and possibly nonreplaceable so cannot be returned | Anderson: condition not proven; regulations allow banks/Treasury to redeem damaged currency; government knew condition | Held: District court lacked evidentiary finding; government did not prove inadequacy; condition alone without proof insufficient to include amount in restitution |
Key Cases Cited
- Robers v. United States, 134 S. Ct. 1854 (2014) (explains restitution when property damaged or returned)
- United States v. Lewis, 842 F.3d 467 (7th Cir. 2016) (Thompson remand vacates entire sentence; defendant may raise arguments on remand)
- United States v. Butler, 777 F.3d 382 (7th Cir. 2015) (waiver requires intentional relinquishment of a known right)
- United States v. Allen, 529 F.3d 390 (7th Cir. 2008) (distinguishes forfeiture/waiver and burden when counsel states no objection)
- United States v. Fonseca, 790 F.3d 852 (8th Cir. 2015) (restitution should exclude recovered property that will be returned to victim)
- United States v. Burns, 843 F.3d 679 (7th Cir. 2016) (plain-error framework and prejudice in restitution errors)
- United States v. Newman, 144 F.3d 531 (7th Cir. 1998) (restitution aligns with uncontradicted evidence about what constituted the loss)
- United States v. Malone, 747 F.3d 481 (7th Cir. 2014) (defendant bears burden to prove offsets/setoffs for property or services returned prior to sentencing)