June 7, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 14-CR-186 - Lynn Adelman, Judge.
Ripple, Rovner, and Hamilton, Circuit Judges.
ROVNER, Circuit Judge.
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.
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.
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.
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
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,
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.
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.
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, ...