Judges: Per Curiam
Filed: May 03, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 1, 2019* Decided May 3, 2019 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-2076 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Western Division. v. No. 17 CR 50051-1 TER
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 1, 2019* Decided May 3, 2019 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-2076 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Western Division. v. No. 17 CR 50051-1 TERE..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 1, 2019*
Decided May 3, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2076
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Illinois, Western Division.
v.
No. 17 CR 50051‐1
TERESA L. JOHNSON,
Defendant‐Appellant. Frederick J. Kapala,
Judge.
O R D E R
Teresa Johnson, a collections officer for a stereo company, pleaded guilty to wire
fraud after embezzling over two million dollars from her employer. See 18 U.S.C. § 1343.
The plea agreement provided that Johnson would repay the amount she had stolen, less
the amount that the company already had recovered. At sentencing, however, the
parties forgot to deduct the recovered funds from the restitution amount, and, as a
result, the district court ordered Johnson to pay more than what she owed. We agree
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐2076 Page 2
with the parties that the restitution order is plainly erroneous, so we vacate and remand
for further proceedings.
As a collections officer, Johnson directed customers to send installment payments
to her personal bank account, defrauding her employer out of about $2.2 million. She
used most of this money to purchase and care for 60 Gypsy horses. Pursuant to a civil
judgment, Johnson surrendered the horses to the stereo company, which sold them for
about $170,000 but incurred costs for their care and sale.
Johnson pleaded guilty to one count of wire fraud, and in the plea agreement,
she acknowledged that she owed restitution in the amount of $2,204,508.52 minus any
credit funds paid to the company prior to sentencing. Drawing from the plea
agreement, the presentence investigation report recommended a restitution order for
$2,031,599.99, which represented the net loss, less the amount the stereo company
already had recovered. At sentencing, however, the parties expressly, but mistakenly,
agreed that Johnson still owed $2,204,508.52, so the district court ordered restitution in
that amount.
On appeal, the government confesses error and joins Johnson in requesting that
we vacate the restitution order even though Johnson expressly agreed to the amount it
reflects. We understand the government, in agreeing to plain‐error review, to be
waiving its possible waiver defense. See United States v. Adigun, 703 F.3d 1014, 1021–22
(7th Cir. 2012). We do not have to accept this waiver, see United States v. Combs, 657 F.3d
565, 571 (7th Cir. 2011), but we will. The government has not “proffer[ed] any strategic
justification” for Johnson’s agreement to repay an amount exceeding what she owed,
and we ourselves cannot “conceive of any strategic reason” for it, so we assume
forfeiture. United States v. Oliver, 873 F.3d 601, 607 (7th Cir. 2017) (quoting United States
v. Anderson, 604 F.3d 997, 1001–02 (7th Cir. 2010); United States v. Jaimes‐Jaimes, 406 F.3d
845, 848 (7th Cir. 2005)). We will therefore review the order for plain error, and reverse
if we find an error that is clear and affects Johnson’s substantial rights. United States
v. Olano, 507 U.S. 725, 732–34 (1993); United States v. Burns, 843 F.3d 679, 685–87 (7th Cir.
2016).
The restitution miscalculation is a plain error (though, we note, the error lies
with the parties). Under the Mandatory Victims Restitution Act, wire‐fraud victims may
“recover the full amount of their losses, but nothing more.” United States v. Walker,
746 F.3d 300, 308 (7th Cir. 2014) (quoting United States v. Newman, 144 F.3d 531, 542
(7th Cir. 1998)); see also 18 U.S.C. § 3663A(a)(1), (b)(1)(B), (c)(1)(B). At the time restitution
was entered, the victim here had recovered $170,000 that was not deducted from the
No. 18‐2076 Page 3
total loss of $2.2 million. The restitution order, therefore, reflected a clear miscalculation
that affected Johnson’s substantial rights because it obligated her to pay more than what
she owes. See Burns, 843 F.3d at 689.
Johnson next requests that we direct the district court to address on remand three
more issues: (1) whether the company’s horse‐care expenses should have been added to
the restitution amount, (2) whether a $500,000 insurance payment to the company
requires shifting Johnson’s liability for that amount to the insurer, and (3) whether the
company obtained cash from Johnson that should further decrease the restitution
amount. Johnson did not raise any of these issues in the district court and makes no
effort on appeal to argue that she forfeited, rather than waived, the arguments. Nor
does she assert that the plain‐error standard is met even if it applies. But because the
government does not object, and we have already decided to remand, we will leave it to
the district court’s discretion whether to address these issues.
We therefore VACATE the judgment and REMAND the case for the sole purpose
of redetermining the amount of restitution.