Case Information
*1 Before R IPPLE R OVNER H AMILTON , Circuit Judges . R OVNER Circuit Judge
. Deandre who pleaded guilty armed robbery, challenges an restitu tion. He contends compelled him extra $2,107—the police minutes after robbery held govern ment ever since. agree award overstated, remand determination correct amount. *2 No.
I. us after a remand resentencing. Anderson Feb. Anderson and three accomplices robbed a Mil waukee bank in 2014. He went inside two others (one them his brother), while a fourth man waited outside a stolen car. men grabbed bills and coins, and they drove away, a pack burst inside a bag currency— leaving some stained and singed. robbers tossed bag from car, but citizen found and gave it police. Authorities found more stolen currency when, day later, they arrested Anderson’s brother driving stolen getaway car. pleaded guilty armed robbery, U.S.C. § 2113(a), (d), admitted details offense factual basis incorporated into his plea agreement. He ad mitted stealing about $500 coins. factual basis discloses $561 was recovered time brother’s arrest, nothing said dis carded bag money turned over police.
Before initial sentencing, probation officer forgot include $500 stolen coins calculating money taken during robbery. In her presentence report, probation officer said total after subtracting $561 from brother, $3,676.
At initial told parties agreed probation officer mistakenly omitted her calculation $500 *3 3 in coins. although prosecutor disclosed police recovered $561 and bag containing $2,107 currency, she said discarded “were burned and stained” and “non useable because pack gone off.” For reason, insisted, res ‐ titution should include discarded bills. The judge asked defense counsel agreed with prosecutor, and counsel said yes. The imposed months’ imprisonment and ordered Anderson $4,131 (an could have correct, even under prosecutor’s logic, plus $500 minus $561 equals $4,176, $4,131).
Anderson filed notice appeal, but com plain about calculation restitution. Instead, after An derson obtained new counsel, parties filed joint motion asserting problematic conditions super vised release, remand resentencing light Thompson 2015), and Kappes grant ed motion.
On remand was assigned different judge, again changed lawyers. This third lawyer filed objections presentence report along sen tencing memorandum, counsel still said nothing about At resentencing counsel limited objections those filed. judge, however, doubtful presentence report’s calculation sought clari fication: “I want confirm parties agree $4,131. robbers took cash coins. [Anderson’s brother]. leaves 4131.” lawyers concurred (even though equa *4 3134 tion equals $4,176). Throughout this exchange remained silent $2,107 government’s posses ‐ sion. The judge sentenced Anderson months’ impris ‐ onment again ordered him pay
II. On appeal Anderson argues district court erro ‐ neously ordered him as restitution government’s possession. That currency, says Anderson, should have bank. gov ernment defends restitution by contending that, first, Anderson waived appellate claim and, second, he failed prove “offset” amount.
We start question waiver. serts waived his claim two rea sons: (1) raise claim at his original first appeal (2) agreed at resentencing. disagree. As first these contentions, answer straightforward: “A remand light Thompson vacates entire sentence, allowing alter any aspect sentence resentenc ing.” United States v. Lewis F.3d 467, (7th Cir. 2016); see Mobley 2016) (explaining after Thompson remand, “the may assert argument she wishes”). second contention stronger,
argument cannot carry day unless agree figure proposed resen tencing, intentionally relinquished known right. Butler Only de *5 5 16 3134 fendant chooses, “as matter strategy, not present argument” will that argument deemed waived. United States v. Garcia , F.3d 528, (7th Cir. 2009); see United States v. Burns , F.3d 679, 686–87 (7th Cir. 2016) (conclud that defendant who agreed loss did not waive argument that responsible for less than full ordered); Butler , F.3d 387–88 (concluding absence objection guidelines calculation forfei ture, not waiver, court could not conceive strate gic reason for not objecting); United States v. Jaimes Jaimes F.3d 845, (7th Cir. 2005) (concluding defendant’s acquiescence upward adjustment under guidelines not waived appellate challenge crease appellate could not conceive strategic reason for not objecting). Nothing record us suggests Anderson’s new lawyer even knew about robbery proceeds still possession. stood silently new asked parties confirm math.
What more, not matter new lawyer did know $2,107, since attorney’s agreement court’s calculation does not establish counsel chose, on behalf forgo objection matter strategy. Allen 393–95 2008) (concluding defendant did waive objection amount, despite counsel’s statement defendant did object, since defendant lacked strategic reason abandoning challenge); cf. Venturella 2009) (concluding waived argument stra tegically withdrawing objection obtain reduction ac ceptance responsibility). rely res *6 titution calculation any way, and saying nothing the figure simply added thousands more obli gation. On this record, there no reason think de fense counsel intentionally decided against raising the claim presented appeal. though forfeited this claim, will review forfeited claim plain error.
That brings us the merits claim. government says seeks “offset” and argues An derson obligated prove, not prove, the figure be reduced by the cur rency possession. Those bills, government says, are “burned stained” possibly replaceable by Treasury Department. conclude, however, government mischaracterizes what seeks has misstated burden proof.
In involving stolen property, statute directs courts return property victim or, if return impossible, impracticable, or inadequate, compel value property less property already returned. U.S.C. § 3663A(b); see Robers S. Ct. (2014) (noting property damaged, lost, destroyed currency, then property “need very same bills”). Because bears burden establishing “the sustained victim,” U.S.C. § 3664(e), falls prove will made whole returning stolen which has recovered, see Fonseca rule gov erning possession. *7 7 16 3134
Anderson is not seeking “offset” word is understood statute. A defendant is on hook for stolen property truly is unreturnable to rightful owner. Sometimes when stolen property cannot returned defendant may seek to reduce his commensurately other or services conveyed to victim sentencing. See U.S.C. § 3663A(b)(1)(B)(ii); Allen , F.3d 397 (remanding for valuation services defendant had provided fraud scheme); United States v. Shepard , F.3d 884, 887–88 (7th Cir. 2001) (remanding for valuation improvements defendant made victim’s home). is what courts mean “offset” “setoff,” offset is issue, bears burden proof he knows best what he returned victim. Malone F.3d Anderson is not saying gave bank a substitute asset; what wants is give back bank stolen currency held government.
According never proved stolen currency possession could not re turned bank. An example makes point: Suppose while fleeing dropped a bag curren cy bank employee immediately retrieved vault. That “loss” bank purposes See Newman 1998) (concluding fig ure accurately based uncontradicted representation money strewn across bank floor included amount). That police, em ployee, irrelevant. Fonseca (“When criminal proceeding *8 ‐ completed, the government has duty return property in custody the rightful owner, unless subject forfei ture.”). do have situation involving forfeiture doubt the ownership of in the government’s possession; the $2,107 always has belonged the bank, the government always has known that this money belongs the bank. Cf. Taylor 1997) (rejecting bank robbers’ argument that reduced of cash re covered robbers but never “proven part proceeds robbery”). government contends returning $2,107
bank would “inadequate” because, as serts, bills are burned stained. But prosecutor never sought prove assertion, nor did she ever say why appearance bills matters. At Anderson’s initial sentencing first dis closed had been but then said bills were “non ‐ useable” they were “burned stained.” There nothing record suggesting bills government’s possession are “non usable,” nor did judge either hearing make find question. Indeed, evidence undermines position: Just three months Anderson’s resentencing, introduced those very during trial Anderson’s brother (who con victed other charges but acquitted robbery). during trial Milwaukee police officer testified counted bills; described some having stains say were burned, let alone entire bag money “non usable.” Although resentencing have free *9 consider evidence brother’s trial, see Are 2009), judge, who presided over both proceedings, apparently recall officer’s testimony about $2,107 calculating
The government suggests also might be inadequate because, according commercial website cited Treasury Department may exchange bills damaged explosion. This suggestion is absurd. In stead commercial website, look applicable federal law understand circumstances which damaged cur rency may be exchanged for fresh bills. Federal regulations provide currency “unfit further circulation” its physical condition—e.g., “torn, dirty, limp, worn or de faced”—is redeemable commercial bank; only if bill is so badly damaged (1) one half or less note re mains (2) doubt exists about denomination will be necessary send bill Treasury Department discretionary replacement. C.F.R. §§ 100.5, 100.7; Ser vices: Redeem Mutilated Currency Dep’t Treas., http://www.moneyfactory.gov/services/currencyredemption. html (visited July cannot claim ignorance condition currency custody. fallback returning “impracticable” brother has appealed, and, according government, will needed as evidence must resen tenced. argument falls flat. conceded oral argument ordered useable govern ment has retained solely evidence. *10 Sixth Circuit has a single nonprecedential decision
which favors the position, but we are per ‐ suaded by that decision. In Calhoun the de ‐ fendant robbed a bank $4,259. All currency had been recovered returned to the bank sentencing, but the defendant still was ordered restitution the same amount. F. App’x. 2013). On ap ‐ peal the defendant argued the first time no amount restitution was authorized the bank’s money had been returned. Id. at 518–19. Sixth Circuit disagreed, rea ‐ soning the given back the bank had burned when pack exploded and, the de ‐ fendant raised issue sentencing, there no way know Treasury Department would replace damaged bills. Id. 519. reasoning, conclude, im properly flips burden proof from defendant; defendant required disprove alleged government.
At one time Eighth Circuit followed an approach sim ilar Calhoun, more recent Eighth Circuit deci sion requires district court exclude from restitution will returned victim. In earlier these decisions, McCracken Eighth Circuit upheld order disregarded recovery $850 from arrest ed bank robbery. 1128–29 simply trusted assurance gov ernment counsel seized money eventually “ad justed” accordingly. Id. More recently, Fonseca volving guns retained authorities, Eighth Circuit vacated included *11 the value of the guns and remanded for gov ‐ ernment accounting of the firearms, including an explana ‐ tion of they would be returned or why they would not be. 855. The court reasoned that the value of guns not included the restitution if they that would provide double re ‐ covery the victim. Id. Eighth Circuit attempted to dis ‐ tinguish McCracken on the theory unlike cash, the value of guns changes over time and, of fluctuation, the court determine the guns’ value as of the date of reduce accord ‐ ingly. Despite valuation distinction, McCracken court affirmed order of included seized by government slated return victim, Fonseca eight years later said such prop erty is counted loss. government does not rely Calhoun or McCracken and, our view, Fonseca better reasoned these decisions from out circuit. conclude plain error resulted from govern
ment’s failure resentencing offer evidence possession inadequate return bank. Had disclosed resentencing judge (who, quite understandably, may have recalled all testimony trial Ander son’s brother) still possessed $2,107, could have adhered statute hearing evidence deciding if re turnable bank, U.S.C. § 3663A(b)(1)(B)(i), these are so badly damaged they cannot replaced. prove discarded proceeds are unreturnable; therefore, restitution, obligat repay those proceeds, errone *12 ously exceeds proven loss. That error obvious under law, even obvious at resentencing. Burns , F.3d 687–88. harms both defend ant’s substantial rights fairness, integrity, public reputation judicial proceedings courts order exceeds proven loss. Burns F.3d 689; Yihao Pu 2016); Kieffer
III. Because record does support reflected restitution, VACATE restitu tion award REMAND hearing limited determin proper remainder An derson’s sentence left undisturbed.