United States v. Carrasquillo-Vilches ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1355
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL FRANCISCO CARRASQUILLO-VILCHES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Stephen V. Manning, with whom Spears Manning & Martini LLC
was on brief, for appellant.
Maarja Tiganik Luhtaru, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
were on brief, for appellee.
May 2, 2022
SELYA, Circuit Judge. This is a case in which defendant-
appellant Miguel Francisco Carrasquillo-Vilches, an apparent
apostle of audacity, has traveled a winding road that led him from
the finagled occupancy of an upscale apartment to a prison cell.
Following the defendant's guilty plea to charges of falsely
impersonating a federal officer and wire fraud, the district court
imposed five concurrent eighteen-month terms of immurement and
ordered restitution in the amount of $30,605.19. The defendant
appeals, challenging both the sentence and the restitution order.
After careful consideration, we affirm his sentence and affirm all
but a sliver of the restitution order.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. "Because this appeal 'follows a guilty plea, we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing.'" United States v. Merced-
García, 24 F.4th 76, 78 (1st Cir. 2022) (internal quotation
omitted) (quoting United States v. Dávila-González, 595 F.3d 42,
45 (1st Cir. 2010)).
In July of 2019, the defendant moved from Tennessee to
San Juan, Puerto Rico. Prior to moving, he contacted a local
realtor to assist with his search for a residence. The realtor
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put the defendant in contact with a prospective landlord, who had
an upscale apartment for rent.
Negotiations ensued. The defendant wanted a provision
in the lease that would allow him to terminate it at any time
without incurring financial liability. Believing that such an
early-termination provision would more readily be made available
for certain functionaries of the federal government, the defendant
falsely identified himself as an employee of the United States
Department of Homeland Security (DHS). Specifically, he referred
to himself as "Director Tactical Command of the Mid-South Region
for the Homeland Security Investigations agency."
To add a patina of plausibility to his falsehoods, he
generated what appeared to be a chain of emails between his
personal email address and a doctored DHS email address and
displayed this bogus email chain to both the realtor and the
prospective landlord. These emails gave the appearance that DHS
was aware of the defendant's plan to lease an apartment and was in
the process of issuing a formal approval of that plan.
When he submitted his rental application, the defendant
falsely represented that he would be entering the lease on behalf
of DHS and that he would be the employee who occupied the premises.
The application, he said, was "authorized by Bill Whitaker, Sub-
Director of DHS." For aught that appears, Whitaker was a figment
of the defendant's imagination.
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Even though several of the defendant's representations
were spurious, his rental application was approved and a twelve-
month lease agreement (the Lease) was executed. The Lease bore
the signatures of the landlord, the defendant, and what appeared
to be the authorizing signature of a DHS official (which the
defendant apparently forged). The Lease ran from July 15, 2019 to
July 14, 2020 and identified DHS as the lessee, the defendant as
the occupant, and the landlord as the lessor. The Lease provided
for rent of $7,500 per month, reflecting a total contract price of
$90,000 for the twelve-month term. It also provided for the
immediate delivery of a security deposit in the amount of $7,500.
At the defendant's instance, the Lease contained a
"Diplomatic Clause." This clause made DHS liable for any rent
that might remain unpaid should the defendant vacate the apartment
before the expiration of the Lease. During a later interview with
the probation officer, the defendant indicated that he wanted this
clause in the Lease because he planned to return to Tennessee in
or around December of 2019. DHS, of course, knew nothing about
the Lease and had no knowledge of the "Diplomatic Clause."
The defendant occupied the apartment for the first two
months of the term of the Lease without either delivering the
security deposit or paying the rent. Blaming nonpayment on
processing delays at DHS, the defendant sent the landlord a
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personal check for the overdue amounts ($22,500). The check
bounced and was returned to the landlord for insufficient funds.
The landlord complained to the realtor, and the realtor
belatedly submitted an inquiry to DHS regarding the defendant's
employment status and DHS's role in the Lease. Another month went
by: the defendant continued to reside in the apartment and the
rent continued to go begging.
By this time, the landlord's patience was exhausted and
he brought an eviction proceeding against the defendant in the
Puerto Rico Court of First Instance. During that proceeding, the
defendant admitted to owing "almost $30,000" but continued to lie
about his employment with DHS. He claimed that he expected DHS to
issue a check for the arrearage in short order. Unpersuaded, the
Puerto Rico court ordered the defendant's eviction, and the
defendant vacated the premises.
At around the same time, DHS responded to the realtor's
inquiry. Its response made pellucid that the defendant was not a
DHS employee and had no authority to enter into the Lease on DHS's
behalf.
The scene soon shifted from a civil proceeding to a
criminal proceeding. On October 31, 2019, a federal grand jury
returned an indictment that charged the defendant with one count
of impersonating a federal officer, see 18 U.S.C. § 912, and four
counts of wire fraud related to his interstate email communications
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with the realtor and the landlord, see id. § 1343. After
originally maintaining his innocence, the defendant reversed his
field and entered a straight guilty plea to all five counts of the
indictment. The district court accepted his guilty plea and
ordered the preparation of a PSI Report. In that report, the
probation office recommended a total offense level of thirteen,
which included a six-level increase for the amount of the intended
loss (calculated to be $90,000). See USSG §2B1.1(b)(1)(D). This
offense level, coupled with a criminal history category of I,
yielded a guideline sentencing range (GSR) of twelve to eighteen
months.
The district court convened the disposition hearing on
April 13, 2021. The defendant objected to the PSI Report,
contending that the amount of loss was overstated. The court
overruled the defendant's objection and adopted the guideline
calculations limned in the PSI Report. The defendant then urged
the court to impose a sentence of probation. For its part, the
government urged the court to impose a prison sentence at the top
of the GSR.
The court sentenced the defendant to concurrent
eighteen-month terms of immurement on each of the five counts of
conviction. It also ordered the defendant to pay $30,605.19 in
restitution to the landlord. That sum comprised three months of
unpaid rent ($22,500), the unpaid security deposit ($7,500), and
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the expenses that the landlord incurred in traveling from Florida
to Puerto Rico to appear at the eviction proceeding ($605.19).
This timely appeal followed.
II. ANALYSIS
The defendant challenges his sentence as procedurally
infirm and substantively unreasonable. In addition, he challenges
the restitution order as excessive because it includes
(improperly, in his view) the unpaid security deposit and the
landlord's travel expenses. We address these challenges
sequentially.
A. The Sentence.
Our "review of claims of sentencing error entails a two-
step pavane." United States v. Vélez-Andino, 12 F.4th 105, 112
(1st Cir. 2021) (quoting United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017)). Thus, "we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." United States v.
Clogston, 662 F.3d 588, 590 (1st Cir. 2011). "At both steps of
this pavane, our review of preserved claims of error is for abuse
of discretion." United States v. Díaz-Lugo, 963 F.3d 145, 151
(1st Cir. 2020). Within the abuse-of-discretion rubric, "we review
the sentencing court's findings of fact for clear error and
questions of law (including the court's interpretation and
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application of the sentencing guidelines) de novo." United States
v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020).
Against this backdrop, we turn to the defendant's claims
of error (all of which were preserved below).
1. The Procedural Claim. The defendant first asserts
that his sentence was procedurally infirm because the district
court erroneously applied a six-level increase to his base offense
level. This assertion does not withstand scrutiny.
The defendant pleaded guilty both to impersonation of a
federal officer and to wire fraud. Because the wire fraud counts
called for a higher base offense level (seven) than the
impersonation count (six), the former provided the starting point
for calculation of the GSR. See USSG §2J1.4(c)(1).
In fraud cases, the amount of loss — actual or intended
— is an important integer in the calculation of a defendant's base
offense level. USSG §2B1.1 applies in this case, and that
guideline calls for graduated increases to the base offense level
depending on the extent of pecuniary loss sustained by the victim.
See id. §2B1.1(b)(1). For this purpose, "loss" is defined as "the
greater of actual loss or intended loss." Id. §2B1.1, cmt. n.3(A).
When calculating the defendant's base offense level,
both the PSI Report and the district court focused on intended
loss. In relevant part, the applicable sentencing guideline in
effect at the time of the defendant's offenses defined "intended
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loss" as "the pecuniary harm that the defendant purposely sought
to inflict." Id. cmt. n.3(A)(ii)(I). The PSI Report suggested —
and the district court found — that the intended loss was $90,000
(the total amount of rent due under the Lease for the full twelve-
month term). Because this amount exceeded $40,000, a six-level
increase to the defendant's base offense level was in order. See
USSG §2B1.1(b)(1)(D).
The PSI Report justified this intended loss calculation
in two ways. First, it found that the defendant "purposely sought
to inflict" a $90,000 loss on the landlord simply by entering into
the Lease. This finding captured the defendant's subjective intent
and conformed to the guideline's then-current definition of
intended loss. See id. §2B1.1, cmt. n.3(A)(ii). In a subsequent
addendum, however, the probation office cited a case interpreting
an outdated definition of intended loss, see United States v.
Alphas, 785 F.3d 775, 780 (1st Cir. 2015) (applying definition of
"intended loss" prior to 2015 guideline amendments), and described
the $90,000 amount as a "reasonable and foreseeable loss" in the
event of a breach. This description seemed to approach the amount
of intended loss from the standpoint of what was objectively
reasonable. Even so, that addendum noted that "subjective intent
may play some role" and reaffirmed the finding that the defendant
never intended to pay anything owed under the Lease. In this
regard, it depicted the defendant as a "true con artist."
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At sentencing, the government agreed with the PSI
Report's bottom-line intended loss determination but predicated it
solely on the basis of the defendant's subjective intent. The
government argued that the defendant's persistent lies and his
failure to pay any of the sums owed under the Lease plainly
reflected his intent to fleece the landlord. The defendant
objected to the six-level increase, arguing that he never intended
to default on the Lease and that the government failed to introduce
any evidence to the contrary. He also asserted that, by framing
its intended loss calculation in objective terms, the PSI Report
employed an incorrect legal standard to arrive at its
recommendation for the six-level increase. The district court
resolved this contretemps in the government's favor, finding
abundant evidence to support the defendant's intention to deprive
the landlord of the entire contract price under the Lease.
In this venue, the defendant seizes upon the district
court's statement that it agreed "100 percent" with the PSI
Report's recommendation for a six-level enhancement. Building on
this porous foundation, the defendant suggests that the PSI Report,
by portraying the intended loss (in an addendum) as "reasonable
and foreseeable," used an incorrect legal standard (that is, an
objective standard) to calculate the defendant's intended loss.
In the defendant's view, the district court — by announcing its
"100 percent" agreement with the PSI Report's recommendation —
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adopted this incorrect standard for determining the amount of
intended loss.
The defendant's argument draws some nourishment from a
2015 amendment to the sentencing guidelines. Prior to that
amendment, "intended loss" under USSG §2B1.1 was determined in
this circuit through an objective standard. See, e.g., United
States v. Innarelli, 524 F.3d 286, 291 (1st Cir. 2008) (focusing
"intended loss" inquiry "on the objectively reasonable expectation
of a person in [the defendant's] position at the time" of the
offense). But in 2015, the Sentencing Commission amended USSG
§2B1.1 to clarify that the "intended loss" inquiry must focus on
the degree of "pecuniary harm that the defendant purposely sought
to inflict" through his conduct. USSG §2B1.1, amend. 792. Given
this amendment, the district court was obliged to use a subjective
standard to determine intended loss.
Even so, the defendant's claim that the district court's
intended loss determination rests on an objective standard is too
much of a stretch. The PSI Report, read as a whole (including the
addenda), justified the intended loss calculation in two ways: at
various points, it used both a subjective standard and an objective
standard in explicating its $90,000 intended loss calculation.
Importantly, though, it explicitly described that amount as the
"pecuniary loss the defendant purposely sought to inflict." Even
if we take the district court's "100 percent" comment literally —
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a proposition that we regard as dubious — it would mean that the
district court agreed with the probation office that the intended
loss, whether measured either from a subjective standpoint or an
objective standpoint, was $90,000.
At any rate, the facts on the ground buttress a finding
of fraudulent intent. Noting that the defendant spuriously entered
the Lease "on behalf of the United States Government," the district
court found it "obvious that [the defendant's] intention was not
to pay" any amount that became due under the Lease. What is more,
nothing in the record compelled the district court to conclude
that the defendant had (or reasonably expected to obtain) the funds
needed to make the promised payments.
Notwithstanding his apparent shortage of funds, the
defendant signed the Lease, falsely representing that DHS would
defray the cost. And despite occupying the apartment for a full
three months, he never paid the landlord a single cent. He did
not even deliver the security deposit. Finally, he gave the
landlord a personal check written on insufficient funds. Presented
with credible evidence of the defendant's tendency to tell tall
tales and presented with no credible evidence suggesting that the
defendant (at the time that he entered into the Lease) had any
realistic prospect of being able to pay the rent, we cannot say
that the district court clearly erred in finding that the defendant
never intended to make any payments under the Lease.
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Nor does it help the defendant's cause that he told the
probation officer that he intended to "pay the rent until the month
of December and return to Tennessee" at that time. Assuming
without deciding that this statement deserved credence, it is at
best a two-edged sword: in light of the evidence establishing the
defendant's fraudulent intent, it simply indicates that he
intended to occupy the apartment rent-free for a minimum of five
months. Applying basic arithmetic, this would mean that the
defendant intended to inflict at least $45,000 of pecuniary loss
upon the landlord (free-riding with respect to five months' rent
and the required security deposit) — an amount that exceeds the
$40,000 threshold needed for the six-level increase in his base
offense level. See USSG §2B1.1(b)(1)(D).
The defendant balks, arguing that he could not have
intended to deprive the landlord of any amount beyond the first
few months' rent because his non-payment of the Lease would have
prompted a reasonable landlord to evict him and secure a
replacement tenant to mitigate the loss. See Imps. Ctr., Inc. v.
Newell Cos., 758 F.2d 17, 20-21 & n.3 (1st Cir. 1985)
(acknowledging application of mitigation doctrine under Puerto
Rico law). But speculation is not proof and, in all events, the
defendant's manifest intent to vacate the property after occupying
it rent-free for five months stops this argument in its tracks.
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The bottom line is that even if we assume for argument's
sake that the district court erred in finding that the defendant
purposely intended to inflict $90,000 of pecuniary harm on the
landlord through his ruse, that error was harmless. See United
States v. Tavares, 705 F.3d 4, 26 (1st Cir. 2013) (noting
applicability of harmless error doctrine to claims of procedural
error). The record amply supports the finding that the defendant
subjectively intended to inflict at least a $45,000 loss, which
achieves the same six-level enhancement that the district court
thought proper. Accordingly, we discern no procedural error.
2. The Substantive Claim. This brings us to the
defendant's claim that his eighteen-month sentence is
substantively unreasonable. As indicated above, we review this
claim for abuse of discretion. See Holguin-Hernandez v. United
States, 140 S. Ct. 762, 766 (2020).
When confronted with a claim that a sentence is
substantively unreasonable, our "key inquiry is whether the
sentencing court has articulated a plausible rationale and reached
a defensible result." United States v. Coombs, 857 F.3d 439, 452
(1st Cir. 2017). Because "reasonableness is a protean concept,"
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008), "[t]here
is no one reasonable sentence in any given case but, rather, a
universe of reasonable sentencing outcomes," Clogston, 662 F.3d at
592. We will vacate a "sentence as substantively unreasonable
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only if it lies 'outside the expansive boundaries' that surround
the 'universe' of reasonable sentences." Matos-de-Jesús, 856 F.3d
at 180 (quoting Martin, 520 F.3d at 92).
This standard typically presents a defendant "with an
uphill climb." Coombs, 857 F.3d at 452. That climb is made
steeper "where, as here, the challenged sentence is within a
properly calculated GSR." Clogston, 662 F.3d at 593. A defendant
who seeks to challenge such a within-the-range sentence "must
'adduce fairly powerful mitigating reasons and persuade us that
the district judge was unreasonable in balancing pros and cons
despite the latitude implicit in saying that a sentence must be
reasonable.'" United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st
Cir. 2011) (quoting United States v. Navedo-Concepción, 450 F.3d
54, 59 (1st Cir. 2006)).
The defendant strives to persuade us that he has made
this uphill climb. He offers a litany of factors that, in his
view, should have militated in favor of a lighter sentence. He
mentions his college education, his employment history, and his
close relationship with his son as evidence supporting his
potential for rehabilitation and the low likelihood of recidivism.
He also marshals statistics suggesting that defendants convicted
of arguably similar offenses in the District of Puerto Rico often
received sentences of probation.
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We are not convinced. A defendant cannot simply cherry-
pick mitigating factors which, viewed in isolation, might support
a lighter sentence and ignore the remainder of the relevant factors
(including aggravating factors). In setting forth the reasons for
its sentence, the district court noted that it had considered all
of the sentencing factors set forth in 18 U.S.C. § 3553(a) and
specifically discussed some of the mitigating factors. It then
recounted the course of mendacity that the defendant employed in
perpetuating his "scheme to defraud." The district court also
remarked that the defendant had made false representations
concerning his employment to the Puerto Rico court during the
eviction proceeding. And, finally, the district court stated that
the defendant's case was unique in its experience: it was unaware
of any other case involving the impersonation of a federal officer
in order to commit wire fraud. Based on this case-specific
assessment of the sentencing factors, the district court
determined that a sentence at the top end of the GSR appropriately
"reflect[ed] the seriousness of the offenses, promote[d] respect
for the law, protect[ed] the public from further crimes by [the
defendant], and addresse[d] the issues of deterrence and
punishment."
The district court's analysis constituted a plausible
rationale for the sentence imposed. The defendant showed himself
to be a persistent purveyor of prevarications, who brazenly assumed
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the mantle of a federal officer for his own comfort and
convenience, depriving an innocent third party of the rent for
which he had bargained. That the district court — in reaching
this conclusion — weighed the evidence before it differently than
the defendant would have preferred "does not undermine the
plausibility of [its] rationale." Coombs, 857 F.3d at 452.
The sentence also represented a defensible result. To
begin, a sentence — like this one — that falls "within a properly
calculated guideline sentencing range is entitled to significant
weight." United States v. Angiolillo, 864 F.3d 30, 35 (1st Cir.
2017); see Rita v. United States, 551 U.S. 338, 347 (2007). That
weight is determinative here, given the severity of the offenses
of conviction. Falsely identifying oneself as a federal officer
in order to dupe another party into offering favorable contract
terms is serious business, inviting serious punishment. Examining
the record as a whole, the sentence imposed was "responsive to the
nature and circumstances of the offense, the characteristics of
the offender, the importance of deterrence, and the need for
condign punishment." Matos-de-Jesús, 856 F.3d at 180. And, thus,
we find the sentence well within "'the expansive boundaries' that
surround the 'universe' of reasonable sentences." Id. (quoting
Martin, 520 F.3d at 92).
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B. The Restitution Order.
The defendant's remaining tranche of challenges targets
the calculation of the district court's restitution order. "We
review restitution orders for abuse of discretion, examining the
court's subsidiary factual findings for clear error and its answers
to abstract legal questions de novo." United States v. Chiaradio,
684 F.3d 265, 283 (1st Cir. 2012).
Under the Mandatory Victims Restitution Act (MVRA),
defendants convicted of certain federal crimes — including (as
relevant here) those "committed by fraud or deceit," 18 U.S.C.
§ 3663A(c)(1)(A)(ii) — must make restitution to their victims to
compensate the victims for their actual losses, see United States
v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018). An "actual loss"
in the MVRA context "is 'limited to [the] pecuniary harm that would
not have occurred but for the defendant's criminal activity.'"
United States v. Simon, 12 F.4th 1, 64 (1st Cir. 2021) (alteration
in original) (quoting Naphaeng, 906 F.3d at 179). For this
purpose, intended loss will not suffice. See Naphaeng, 906 F.3d
at 179.
Appellate courts do not demand absolute precision in the
fashioning of restitution orders. See Simon, 12 F.4th at 64. As
long as a district court's restitution "order reasonably responds
to some reliable evidence, no more is exigible." United States v.
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Sánchez-Maldonado, 737 F.3d 826, 828 (1st Cir. 2013); see Simon,
12 F.4th at 64-65.
In the case at hand, the defendant posits that the
district court doubly erred in compiling its restitution order:
first, by ordering restitution for the unpaid security deposit;
and second, by ordering restitution for the landlord's travel
expenses incurred in connection with the eviction proceeding.1 We
treat each claim of error separately.
1. The Security Deposit. At the commencement of the
Lease, the defendant was obligated to deliver a security deposit
of $7,500. The defendant never fulfilled this obligation, and the
district court included the amount of the security deposit as part
of the landlord's actual loss. The defendant challenges this
ruling, alleging that the inclusion of this amount provides the
landlord with a windfall. In support, the defendant adverts to a
provision in the Lease that, in substance, requires the return of
the security deposit to him at the termination of the Lease except
to the extent that the deposit (or some part of it) is needed to
defray rent arrearages or claims for damage to the demised
premises. The record contains no evidence of any damage to the
premises and — the defendant submits — allowing the landlord to
1 The defendant does not challenge that portion of the
restitution order that requires him to pay the landlord $22,500 in
back rent.
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recover all three months of unpaid rent and to keep the security
deposit without applying it toward the unpaid rent would unjustly
enrich the landlord.
As a general matter, restitution orders should not
generate windfalls. After all, the principal goal of restitution
is "to make the victim whole again," Innarelli, 524 F.3d at 293,
and "an order for restitution ought not to confer a windfall upon
a victim," Naphaeng, 906 F.3d at 179.
Here, however, there was no windfall. Pertinently, the
Lease provides: "In the event that [the lessee] leaves the
property before the end of the [Lease], the Security Deposit[]
will not be returned to [him]." Given this provision, we are
satisfied that the inclusion of the security deposit in the
restitution order reflects a reasonable response to reliable
record evidence. See Sánchez-Maldonado, 737 F.3d at 828. The
defendant was evicted from the apartment before the Lease
terminated and the provisions of the Lease permitted the landlord
to retain the security deposit upon an early departure, whether
voluntary or involuntary. The district court, therefore, did not
abuse its discretion by including the amount of the security
deposit in its restitution order.2
2 The defendant suggests that the government did not develop
this argument below, but the record belies this suggestion. The
government introduced the Lease as a sentencing exhibit and
underscored the provision permitting the landlord to retain the
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2. The Travel Expenses. The inclusion of the landlord's
travel expenses in the restitution order is a horse of a different
hue. The record discloses that the landlord incurred $605.19 in
expenses traveling from Florida to Puerto Rico in order to
prosecute an eviction proceeding against the defendant in the
Puerto Rico Court of First Instance. At the government's urging,
the district court found these expenses to have been incurred in
a "proceeding[] related" to the defendant's criminal prosecution,
see 18 U.S.C. § 3663A(b)(4), and included them in the restitution
award.
After this appeal was docketed, the government had
second thoughts. In its brief, it conceded that the MVRA did not
authorize the inclusion of these travel expenses in the restitution
order. This concession was appropriate: the MVRA, in relevant
part, provides that a restitution award shall require a defendant
to "reimburse the victim for . . . transportation[] and other
expenses incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings related to
the offense." See id. The Supreme Court has held that — for such
transportation expenses to be includable in a restitution award —
the "proceedings related to the offense" must be criminal in
security deposit in the event of early departure. And in all
events, "[w]e are at liberty to affirm a district court's judgment
on any ground made manifest by the record." United States v.
George, 886 F.3d 31, 39 (1st Cir. 2018).
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nature. See Lagos v. United States, 138 S. Ct. 1684, 1687 (2018).
The travel expenses at issue here were not incurred in connection
with a criminal proceeding but, rather, in connection with a civil
eviction proceeding. Thus, we agree with the parties that those
expenses do not fall within the reach of the MVRA.
Even so, the government's brief attempted to resurrect
the award of travel expenses by arguing — for the first time —
that the travel expenses were appropriately included as a function
of the district court's general sentencing discretion. This
argument, though, withered on the vine. In a post-briefing letter,
see Fed. R. App. P. 28(j), the government withdrew the argument.
We treat a withdrawn argument as waived. See United States v.
Padilla-Galarza, 990 F.3d 60, 87 (1st Cir. 2021).
That ends this aspect of the matter. The claim for
travel expenses has been waived. And in any event, the Lagos
Court's reading of the MVRA, see 138 S. Ct. at 1687, is clear.
Because the travel expenses were improperly included in the
restitution award, that award must be reduced by the amount of
those travel expenses ($605.19).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the defendant's sentence, affirm the restitution order
except as to the inclusion of the travel expenses ($605.19), and
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remand for the entry of an amended restitution order consistent
with this opinion.
So Ordered.
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