United States v. Zander, 705 F. App'x 707

Zander was convicted by jury of mail and wire fraud, money laundering, and failing to file tax returns for diverting federal grant funds from the Paiute Indian Tribe of Utah for his benefit.
District court initially sentenced Zander to 68 months and awarded $202,543.92 restitution; PSR recommended a 10-level loss enhancement but court applied a 12-level enhancement.
On direct appeal this Court affirmed convictions but remanded for resentencing with a corrected loss within the $120,000–$200,000 range and for reconsideration of restitution under MVRA standards. United States v. Zander, 794 F.3d 1220.
On remand the district court reduced restitution to $176,698, kept the 68-month sentence, then (without a new in-person hearing) entered a further amended judgment reducing the sentence to 63 months after a Rule 35(a) correction.
The government concedes and the panel holds that sentencing via videoconference violated Fed. R. Crim. P. 43(a)(3), requiring remand for resentencing in the defendant’s physical presence.
The Court limited the district court’s authority under the mandate rule to issues within the prior remand (corrected loss range) but held the district court erred to the extent it refused to consider additional restitution challenges on remand.

Issue	Zander's Argument	Government's Argument	Held
Whether sentencing by videoconference complied with Rule 43	Rule 43 requires defendant be physically present at sentencing	Concedes video sentencing was improper	Video sentencing violated Rule 43; remand for in-person resentencing
Scope of resentencing: whether district court must conduct de novo resentencing and consider other guideline issues	Resentencing should be de novo and reconsider loss, sophisticated-means, and other guideline calculations	Prior mandate limited resentencing to corrected loss; district court should follow mandate rule	Mandate rule limited district court to corrected loss range; district court correctly refused to reopen issues beyond remand; no exception shown
Whether district court could consider additional restitution challenges on remand	District court should address sufficiency arguments that some checks did not cause Tribe loss or paid for work performed	Government points to prior mandate and argues estoppel to deny relitigation	Prior remand left restitution for reconsideration; district court erred to the extent it refused any additional restitution challenges; on remand court may exercise discretion to consider them
Whether case should be reassigned to a different judge for resentencing	Zander claimed need for reassignment	Government opposed reassignment	Reassignment denied; no proof of personal bias or extraordinary circumstances

United States v. Torres-Palma, 290 F.3d 1244 (10th Cir. 2002) (video conferencing for sentencing is outside district court discretion and Rule 43 violations are per se prejudicial)
United States v. Keifer, 198 F.3d 798 (10th Cir. 1999) (resentencing is typically de novo but subject to the mandate rule)
United States v. Webb, 98 F.3d 585 (10th Cir. 1996) (mandate rule prohibits district court from deviating from appellate instructions)
United States v. West, 646 F.3d 745 (10th Cir. 2011) (exceptional circumstances may permit departure from mandate; district court has discretion on issues left open on remand)
United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. 2006) (elements and limits of judicial estoppel doctrine)
Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) (reassignment on remand requires proof of personal bias or extreme circumstances)
United States v. Zander, 794 F.3d 1220 (10th Cir. 2015) (prior opinion: affirmed convictions, remanded for corrected loss-based resentencing and restitution reconsideration)