STIPULATION RE: REMAND AFTER APPEAL

WILLIAM B. SHUBB, District Judge.

In an opinion filed March 3, 2014, the Ninth Circuit affirmed defendant Thomas Tanke's convictions and sentence, except that the Court held, "in accord with the government's concession, that the district court plainly erred by including $44,715.21 in restitution for fraudulent credit card charges and $1,851.38 in restitution for wage overpayments that were not part of the offenses of conviction and by failing to note the waiver of interest on restitution in the judgment." U.S. v. Tanke, No. 12-10362, at 24 (9th Cir. March 3, 2014). See Dist. Court Docket Sheet, Document 103.

Tanke's petition for rehearing and rehearing en banc was denied on April 16, 2014. The mandate issued on April 25, 2014.

In this case, the presentence report indicated that Tanke made $44,715.21 in1 unauthorized credit card charges on Azteca's Visa and American Express credit cards and was overpaid on advanced vacation pay by $1,851.38. PSR, at 4, ¶7. The probation officer recommended that these amounts be included as part of the $136,518.02 in restitution to be payable to Michael Burkhart, Chapter 7 Trustee for Azteca Construction. Id. at 4, ¶7, at 6, ¶13. In sentencing defendant Tanke on July 6, 2012, U.S. District Judge Edward J. Garcia followed the probation officer's recommendation on restitution at sentencing. In its opinion, the Ninth Circuit held these amounts were erroneously included in restitution.

Pursuant to the Ninth Circuit's decision, the defendant Tanke, through his attorney John Balazs, and the United States, through its counsel, Assistant U.S. Attorney S. Robert Tice-Raskin, hereby stipulate that the judgment be amended on remand by (1) reducing the restitution ordered to Michael Burkhart, Chapter 7 Trustee for Azteca Construction from $136,518.02 to $89,951.43 to eliminate the $44,715.21 in fraudulent credit card charges and $1,851.38 in wage overpayments; and (2) to reflect that interest on restitution is waived with all other aspects of the original sentence remaining the same.

Defendant Thomas Tanke is currently incarcerated at FCI Englewood, Colorado. Counsel for Tanke represents that Tanke has been advised of his right to be present for resentencing. Pursuant to Federal Rule of Criminal Procedure 43(c)(1)(B), Tanke has executed the attached waiver of his right to be present at any re-sentencing proceeding. He also waives his rights to be present and to allocution at re-sentencing. He also agrees to the stipulation to amend the judgment.

IT IS SO STIPULATED.

ORDER

For the reasons set forth in the attached stipulation of the parties, the Court hereby re-sentences defendant Thomas Tanke on remand from appeal to the same sentence previously imposed except that the Court orders (1) that the restitution ordered payable to Michael Burkhardt, Chapter 7 Trustee for Azteca Construction be reduced from $136,518.02 to $89,951.43; and (2) that the judgment be amended to reflect that interest on restitution is waived. All other aspects of the sentence imposed by U.S. District Judge Edward J. Garcia on July 6, 2012 shall remain the same. The clerk is directed to issue an amended judgment reflecting these two changes.