United States v. Sarad , 227 F. Supp. 3d 1153 ( 2016 )

ORDER

KIMBERLY MUELLER, UNITED STATES DISTRICT JUDGE

On August 6, 2014, Matthew A. Sarad pled guilty to securities fraud. Mins, from Plea Hr’g, ECF No. 61. Part of Sarad’s plea deal included an agreement to abide by court-ordered restitution between $6,5 and $7.5 million. Plea Agreement, ECF No. 63. On November 26, 2014, the government recommended a restitution award of $7,052,200.52. Presentence Investigation Report (PSR) 22-35, ECF No. 70. On August 26, 2015, Sarad was sentenced to prison. Mins, from Sentencing, ECF No. 100. The parties agreed to waive the requirement that restitution be awarded within ninety days of Sarad’s sentencing. Stipulation, ECF No. 109. On October 26, 2015, Sarad filed a pleading arguing for no restitution and claiming the government failed to prove Sarad actually caused the victims’ losses. Def.’s Restitution Br., ECF No. 104. The matter is now before the court on the question of whether the record supports the government’s proposed restitution award. For the reasons discussed below, the court finds for the government on the issue of restitution, and accordingly ORDERS restitution in the amount of $7,052,200.52. ■ ■

I. BACKGROUND

A. Relevant Facts Relating to Sarad’s Fraudulent Misrepresentations

The government charged Sarad with securities fraud for false statements he made in connection with sales of stock in Telo-molecular Corporation (“Telomolecular”). Superseding Information, ECF No. 58. Sarad and the government entered a plea agreement on August 6, 2014, in which Sarad pled guilty to committing fraudulent interstate transactions, in violation of 15 U.S.C. §§ 77q(a) and 77x. ECF No. 63. In his plea agreement, Sarad admitted the following facts.

Sarad was the founder and chief executive officer of Telomolecular. Id, Ex. A at 1.. Telomolecular held itself out as a biotechnology startup and claimed to have developed nanoparticle technology that could cure cancer and treat other age-related diseases. Id. Between November 2005 and July 2008, Sarad and Telomolecu-lar raised approximately $6.5 million from more than 300 investors across the United States. Id. This fundraising was accomplished mostly by the selling of stock not properly registered with the Securities and Exchange Commission. Id. Sarad also made several material misrepresentations about Telomolecular and its- research in connection with the sale of the unregistered stock. Id. For example, Sarad told investors the company would complete government trials and be available on the market within three years, and that the University of Nebraska was doing research for Telomolecular with “exciting” and “very encouraging results.” Id. Sarad said Telomolecular believed its products could cure cancer, and that the company had regenerated aged tissue samples that remained permanently “young.” Id. He .falsely reported Telomolecular employed a management team with years- of relevant experience, including a team of more than fifty scientists, and that Telomolecular’s work was generating interest within the industry and among financial institutions. Id. He also told investors Telomolecular would have an estimated market capitalization of $400 million. Id.

In addition to Telomolecular, Sarad made misrepresentations relating to Sun Nanosystems, a company that he owned for a year in 2009. Id. at 2. Sun Nanosys-tems purported to be in the business of installing solar energy systems and falsely claimed to have developed nanoparticle technology that made solar panels fifty percent more efficient. Id. The company falsely represented to customers that it was experienced in installing these systems, that its customers were satisfied, and that it had installed these systems for large, organizational clients. Id. Under Sarad’s direction, Sun Nanosystems sold six systems and collected $300,000, but never installed any of them. Id.

B. Procedural History Relating to Restitution

As part of his plea deal, Sarad agreed to pay restitution to the victims of the above-mentioned fraudulent misrepresentations. See ECF 63 at 3. Specifically, Sarad agreed to the following:

The Mandatory Victim Restitution Act requires the Court to order restitution to the victims of certain offenses. Defendant agrees that his conduct is governed by the Mandatory Restitution Act pursuant to 18 U.S.C. § 3663A(c)(1)(A)(ii) and agrees to pay the full amount of restitution to all victims affected by this offense, including, but not limited to, the victims covered in the factual basis, victims covered in those counts to be dismissed as part of the plea agreement pursuant to 18 U.S.C. § 3663A(a)(3), and any other victims of the defendant’s conduct for the offenses charged from time periods of November 2005 through July 2008 and January 2009 through December 2009. The amount of restitution is estimated between $6.5 and $7.5 million ....

Id. at 3:2-13. On August 6, 2015, at his change-of-plea hearing, Sarad affirmed the agreement that he would pay restitution between $6.5 and $7.5 million. See Hr’g Tr. 6-8, ECF No. 96 (“Ms. Biekley: ... The defendant will pay restitution as ordered by the Court. It is presently estimated that the restitution will be between 6.5 million and 7.5 million dollars.... The Court: Mr. Sarad, does that in fact accurately summarize your agreement with the government as you understand it? The Defendant: It does.”). The government also included a recommended restitution of $7,052,200.52 in Sarad’s presentence report, ECF No. 70, and Sarad did not object to that amount. On August 26, 2015, the court sentenced Sarad to forty-eight months in prison and thirty-six months of supervised release. ECF No. 100; Judgment, ECF No. 101.

On October 26,2015, Sarad requested an order of no restitution, arguing the government failed to adequately prove the $7,052,200.52 figure in his presentence report. ECF No. 104. On October 27, 2015, the government opposed Sarad’s request. Gov’t Restitution Br., ECF No. 106. On November 3, 2015, the court held a restitution hearing and set a schedule for supplemental briefing regarding the issue of causation between Sarad’s misrepresentations and the actual estimate of the victims’ losses. ECF No. 107. Sarad filed his supplemental brief on November 10, 2015, ECF No. 110, and the government responded on November 17, 2015, ECF No. 113.

Sarad supports his request for an order of no restitution by characterizing the government’s evidence of the victims’ losses as a “generalized loss summary” in which the government “made no attempt to prove up the actual losses that were proximately caused by [his] conduct.” ECF No. 110. Sarad submits that the more sophisticated investors likely attributed no weight to his misrepresentations when they chose to invest, and therefore his misrepresentations did not cause their harm. Id. at 3. Sarad also argues that, because he left Telomole-cular years before the company’s ultimate demise, it may not have been his misinformation or misrepresentation, but rather the 2008 financial crisis or subsequent mismanagement that caused the company to fail. Id. at 3. Sarad also suggests the government’s restitution estimates are inaccurate as Telomolecular ultimately did use some of the investors’ money to pay “real scientists to perform real research,” as promised. Id. at 2-3 (quoting Sentencing Stip. 1, EOF No. 97). Lastly, Sarad argues the causation issue in this case is so complex that the court should decline to award restitution altogether. Id. at 4; EOF No. 104 at 3-4 (citing the MVRA complexity exception codified in 18 U.S.C. § 3663A(c)(3)(B)).

The government argues a restitution award of $7,047,200.52 is appropriate because that figure is derived directly from victims’ bank statements and because the factual admissions in Sarad’s plea agreement remove causation as a disputed or disputable issue. EOF No. 106 at 4-5. To prove causation, the government cites the portion of Sarad’s plea agreement where he agreed investors bought stocks based partially on his material misrepresentations. Gov’t Suppl. Br. at 1-2, EOF No. 113. The government contends that because causation is not at issue, the case does not fall within the MVRA complexity exception. Id. at 2-3. To rebut Sarad’s suggestion that sophisticated investors placed little weight on his misrepresentations, the government submits a letter from just such an investor stating the contrary. See id. Ex. A at 2 (explaining Sarad and Telomolecular fed sophisticated investors “a steady stream of false hope and promises” among other “distortions” and half-truths). The government also argues any factors that subsequently influenced the value of Telomolecular’s investments are irrelevant to a restitution order. Id. at 2-3.

II. DISCUSSION

The MVRA, which governs restitution in this case, “makes restitution mandatory for particular crimes, including those offenses which involve fraud or deceit.” United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004) (citing 18 U.S.C. § 3663A(c)(1)(A)(ii)); see ECF No. 63 at 3. The purpose of the MVRA is “to ensure that the loss to crime victims is recognized,” that “[victims] receive the restitution that they are due,” and that the “offender pays the debt owed to the victim as well as to society.” United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006). To trigger mandatory restitution under the MVRA, the government must prove, by a preponderance of the evidence: (1) the number of victims to whom defendant owes restitution and (2) the amount of restitution defendant owes each victim. United States v. Waknine, 543 F.3d 546, 558 (9th Cir. 2008) (citing 18 U.S.C. § 3664(e)). If the government proves these two elements, court-ordered restitution is mandatory for each person “directly and proximately harmed as a result of [the covered offenses],” 18 U.S.C. § 3663A(a)(2), and any “persons other than the victim of the offense” if “agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663A(a)(3).

Although restitution is presumptively mandatory under the MVRA, the statute delineates an exception whereby the court may decline to order restitution in cases where calculating restitution is unusually complex or burdensome. 18 U.S.C. § 3663A(c)(3)(B).¹ Sarad argues this “MVRA complexity exception” applies in this case because the court would have to engage in a lengthy and complicated evi-dentiary process to determine causation. ECF No. 104 at 3-4; ECF 110 at 4. Because the complexity exception could counsel against restitution altogether, the court first examines whether the complexity exception applies, and then moves on to determining the appropriate amount of restitution to award, if any.

A. The MVRA Complexity Exception

The MVRA “complexity exception” permits a sentencing court to decline to award restitution to a fraud victim where the burden in calculating restitution outweighs the need to compensate a particular victim. See United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). More specifically, 18 U.S.C. § 3663A(c)(3)(B) relieves a district court of its obligation to impose restitution for fraud crimes if the court finds “determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.” 18 U.S.C. § 3663A(c)(3)(B). A district court’s decision to invoke this exception is reviewed for abuse of discretion. See Cienfuegos, 462 F.3d at 1162.

The Ninth Circuit has analyzed the MVRA complexity exception only twice, and both times found it inapplicable. United States v. Conway, 323 Fed.Appx. 517 (9th Cir. 2009) (affirming the district court’s refusal to apply the exception); Cienfuegos, 462 F.3d at 1168 (holding district court abused its discretion by invoking the MVRA complexity exception, and explaining a determination of future lost earnings is not enough to trigger exception). Other circuit courts have examined the complexity exception and made clear that a district court cannot avoid its obligation to award restitution under the MVRA simply because the government is unable to prove the exact sum a victim lost as a result of the defendant’s conduct. Gallant, 537 F.3d at 1251-54; see also United States v. Futrell, 209 F.3d 1286, 1292 (11th Cir. 2000) (holding restitution could be based on reasonable estimate of losses when it would be impossible to determine precise amount); United States v. Jackson, 155 F.3d 942, 949 n.3 (8th Cir. 1998) (“in a case of fraud or theft, the loss need not be determined with precision”). Rather, a Sentencing court may safely resolve restitution uncertainties “with a view towards achieving fatness to the victim,” so long as it still makes a “reasonable determination of appropriate restitution” rooted in a calculation of actual loss. United States v. Vaknin, 112 F.3d 579, 587 (1st Ct. 1997) (quotation omitted).

Here, this matter is not so complex as to warrant an exception to the MVRA under section 3663A(c)(3). There is sufficient evidence in the record to support the government’s recommended restitution award. Although Sarad attempts to frame the restitution issue before the court as raising a complicated threshold determination of causation, Sarad’s plea agreement and subsequent letters to the court have established causation. In his plea agreement, Sarad admits he “raised approximately $6.5 million from over 300 investors across the country through the fraudulent sale of securities.” EOF No. 63 at A-l. Sarad further admits that he, “together with others acting under his direction and using information provided by him, solicited individuals nationwide to invest in Telomolecular, primarily through the purchase of stock.” Id. “In selling the Telomolecular stock, Sarad obtained money by means of untrue statements of material facts,” and Sarad also “omitted statements of material facts.” Id. Sarad also admits every investor listed in the government’s victim loss sheet was exposed to his material misrepresentations. Id. Despite these admissions, Sarad .now argues: (1) the government cannot prove the victim-investors actually relied on Sar-ad’s false statements when they chose to invest; (2) the government cannot prove how much money his statements alone reduced the value of the investment; and (3) the calculation of restitution is complicated by the fact that some of the victims’ money actually went into scientific research. ECF No. 110 at 3.

The court is not persuaded by Sar-ad’s arguments. As to his first argument, the degree to which investors relied on his misrepresentations is inconsequential, because the “[d]efendant’s conduct need not be the sole cause” of the victims’ decision to invest, as long as intervening causes also directly relate to the defendant’s conduct. United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 928 (9th Cir. 2001). Moreover, a letter from J.S., one of Telomolecular’s largest investors, exemplifies sophisticated investors’ reliance in fact on Sarad’s misrepresentations. See ECF No. 113, Ex. A. Specifically, the letter explains how Sarad and Telomolecular fed sophisticated investors “a steady stream of false hope and promises” among other “distortions” and half-truths. Id. at 2. The court need not embark on a fact-finding mission to determine how much weight these investors attributed to Sarad’s misrepresentations.

The court is also not persuaded by Sarad’s claim that the government cannot prove how much of the victims’ losses are attributable to Sarad’s misstatements. Sarad argues the 2008 financial crisis and the subsequent Telomolecular leadership may be partially to blame for devaluing the victims’ investments. ECF No. 110 at 3. However, even where other “contributing factors” might have compounded the victims’ losses giving rise to restitution, the district court does not have to apportion restitution, where, as here, the defendant has been found culpable and the causal chain “is not extended so far as to become unreasonable.” United States v. Peterson, 538 F.3d 1064, 1077 (9th Cir. 2008). Moreover, Sarad cannot alleviate his own liability by citing subsequent factors that depreciated Telemolecular stock further, because Sarad is the one who bears the risk for the loss of investments he fraudulently obtained. See Gordon, 393 F.3d at 1053 (when determining restitution in securities fraud cases, it is appropriate for “district courts to place the risk of downward' fluctuations in stock prices on defendants rather than victims”) (citation omitted).

Lastly, Sarad suggests the calculation of restitution is complicated by the fact that Telomolecular ultimately did use some of the investors’ money to pay “real scientists to perform real research,” such that their investments were not valueless. ECF No. 110 at 2-3 (quoting Sentencing Stip. 1, ECF No. 97). However, what eventually happened to the investor’s' money is irrelevant under the MVRA because the statute provides for calculating restitution based on what the victims lost at the time of Sarad’s fraudulent conduct, not afterwards. See Gordon, 393 F.3d at 1053 (“[t]he purpose of restitution is ... to restore the defrauded party to the position he would have had absent the fraud”). Here,' the investors were fraudulently induced to invest in the first place and are therefore entitled to recover their full investment. Moreover, a defendant’s subsequent action only alters a restitution award under the MVRA when the action physically returns any fraudulently-obtained funds or property to the victims. See 18 U.S.C. § 3668(b)(1)(B)(ii).² The “real research” Telomoleeular paid scientists to perform with the investors’ money did not physically return property or funds to the victims and is therefore not relevant.

Thus, Sarad raises no new issues that call causation into question, and the court therefore need not delve into the facts Sarad throws out at this late stage.

The MVRA exception does not apply in this case. The court thus turns the question of whether the government has met its burden to prove the recommended $7,047,200.52 restitution award.

B. Calculation of Sarad’s Restitution Obligation

To prove restitution in this case, the government must show, by a preponderance of the evidence: (1) the identity of the victims; and (2) the amount of restitution the defendant owes to each victim. Waknine, 543 F.3d at 556. Under the MVRA, a “victim” is any

person directly and proximately harmed as a result of the commission of an offense ... including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2); Gallant, 537 F.3d at 1247. Here, the government has submitted a detailed investor-by-investor list of each victim who invested in Telomoleeular, derived directly from the victims’ bank records. ECF No. 63 Ex. 1. Sarad has never disputed the accuracy of this list. Sarad admits every victim the government listed did in fact receive his material misstatements before choosing to invest in his company. ECF No. 63 Ex. A-1. As the record stands, there is sufficient evidence that every investor listed in the government’s investor sheet is a victim for purposes of restitution.

To determine the amount of restitution owed to each victim, the district court may rely only on evidence that possesses “sufficient indicia of reliability to support its probable accuracy.” Waknine, 543 F.3d at 557 (citing United States v. Garcia-Sanchez, 189 F.3d 1143, 1148-49 (9th Cir. 1999)). If the parties agree on a restitution amount, the court is not required to “consider certain factors or make findings of fact on the record” before issuing a restitution award. Peterson, 538 F.3d at 1077. However, if the parties dispute the proper amount of restitution, a district court must resolve the dispute applying a preponderance of the evidence standard, and “set forth an explanation of its reasoning, supported by the record.” United States v. Tsosie, 639 F.3d 1213, 1221 (9th Cir. 2011) (interpreting holding in Waknine, 543 F.3d at 566).

The court first reviews the Waknine requirements for resolving restitution disputes and then analyzes whether the record in this case supports the government’s recommended restitution award under Waknine.

1. The Waknine Standard

In Waknine, the Ninth Circuit reversed the district court’s restitution award because the district court failed to explain how it arrived at a particular restitution amount. Id. The government in Waknine admitted the amount of restitution was “unclear” and “[fell] somewhere between $250,000 and $595,000.” Waknine, 543 F.3d at 556. Additionally, the government’s “summary of losses” listed only the claimant and the amount of loss, with no explanation, justification, or proof of accuracy. See id. at 557. The district court ordered restitution in the amount of $371,000, without much explanation as to how it arrived at that amount, and the Ninth Circuit was unable to reverse-engineer that calculation for review with the evidence of record. Id. at 556-57. The Ninth Circuit reversed the restitution award due to the district court’s “inadequate explanation as to how it determined [the] award amount and insufficient reasoning as to why it accepted the nonitemized victim affidavits.” Id. at 557.

Since Waknine, additional Ninth Circuit opinions have grappled with contested restitution calculations and determined that a restitution award cannot be based solely on unsupported and unexplained victim statements of losses. See United States v. Andrews, 600 F.3d 1167, 1172 (9th Cir. 2010) (reversing a restitution order because it was issued in exclusive relianee on the victim’s evidence as to causation, and the defendant’s expert witness was not allowed to testify); Tsosie, 639 F.3d at 1222-23 (finding a spreadsheet of doubtful accuracy and offered without sworn statements explaining its entries to be insufficient under the Waknine standard).

The court next assesses whether the government’s proof of restitution in this case satisfies the Waknine standard.

2. Government’s Proof of Victims’ Losses

The government argues the court should award restitution in the amount of $7,047,200.52 and supports this calculation with an itemized loss sheet derived from the victims-investors’ bank accounts. ECF No. 63 Ex. 1. Sarad argues either for no restitution or for a reduced amount but has not offered an alternative sum. Because the parties dispute the appropriate amount of restitution, Waknine requires that the court explain how the record supports the restitution it ultimately awards.

Here, the government’s proof of victims’ losses, which is consistent with the government’s calculation of loss throughout the sentencing process, provides “sufficient in-dicia of reliability” for this court’s decision to award restitution in the requested amount of $7,047,200.52. Waknine, 543 F.3d at 557 (citation omitted). First, the court notes that, because this case involves fraud, the government need not prove each victim’s loss with precision. Gallant, 537 F.3d at 1251-54; Jackson, 155 F.3d at 949 n.3 (in cases of fraud “[t]he court need only make a reasonable estimate of the loss, given the information available”); United States v. Teehee, 893 F.2d 271, 274 (10th Cir. 1990) (noting “[t]he determination of an appropriate restitution amount is by nature an inexact science”); United States v. Lewis, 557 F.3d 601, 615 (8th Cir. 2009) (restitution calculations may involve “approximations and rounding”). After all, “[t]he primary and overarching goal of the MVRA is to make victims of crime whole” and Congress intended district courts “to engage in an expedient and reasonable restitution process, with uncertainties resolved with a view toward achieving fairness to the victim.” Gordon, 393 F.3d at 1048.

Second, the court notes the government’s proof of victims’ losses in this case is far more reliable than in Waknine. Unlike in Waknine, where the government’s non-itemized loss summary contained no details of the origin of each calculation and no support from the record, the govern-merit’s loss sheet here is itemized and drawn directly from the victims’ bank accounts. Waknine, 543 F.3d at 557, Moreover, in Waknine, the record revealed significant ambiguity as to the appropriate loss amount and the government conceded the restitution could be anywhere between $250,000 and $595,000. Id. at 556. Here, Sarad has submitted no alternative loss calculation or any evidence that casts doubt on the accuracy of the government’s estimate. Rather, Sarad has affirmed the accuracy of this estimate throughout his sentencing process. ECF No. 68 at 14; ECF No. 70-7 at 4; ECF No. 70. at 23-35; ECF No. 96 at 6:11-8:5.

The government’s finaí'tabulation of restitution also falls squarely within the range of restitution Sarad agreed to at his change of plea hearing and in his plea agreement. ECF No. 61; ECF No. 63 at 3:2-13. Sarad’s plea agreement is relevant evidence of the reliability and fairness of the government’s restitution estimate. See, e.g., United States v. Wells, 177 F.3d 603, 608-09 (7th Cir. 1999) (upholding restitution order pursuant to 18 U.S.C. § 3663(a)(3) where defendant agreed to pay restitution up to a certain amount in the plea agreement); United States v. Allison, 59 F.3d 43, 47 (6th Cir. 2007) (same). Additionally, because Sarad did not object at his sentencing hearing to any facts contained within his pre-sentencing report, the court may properly rely on those facts in calculating restitution. United States v. Barton, 366 F.3d 1160, 1166 (10th Cir. 2004) (“Where ... the PSR recommends restitution under the MVRA for an actual recoverable loss incurred by a victim of the defendant’s crime, and the defendant does not object to that request, there is no need under the MVRA for a district court to engage in any additional- fact finding with respect to the proper amount or type of restitution”) (citation omitted).

Lastly, the court notes that the payment of restitution is a component of Sarad’s criminal sentence. ECF No. 100. Sarad should not benefit irom. evisceration of this wholly anticipated facet of his sentence by lodging vague and unsupported post hoc complaints.

Thus, because the government’s detailed list of investors and payments is derived from verifiable bank records, and because Sarad has not cast doubt on the reliability of this calculation, the court finds by a preponderance of the evidence that $7,047,200.52 is an accurate assessment of the victims’ losses in this case.

HI. BREACH OF PLEA AGREEMENT

The government also raises the argument that Sarad’s request to pay no restitution, despite agreeing to pay restitution in his plea deal, is effectively a violation of his plea agreement. Because the government is not seeking to void the plea agreement, and is in fact seeking to specifically enforce it, the court does not reach this issue. Moreover, although Sarad agreed to pay restitution in an amount between $6.5 and 7.5 million, he did not agree to relieve the government of its burden of proving that his restitution obligation includes only those losses caused by his criminal conduct. ECF No. 63 at 3. Thus, the court construes Sarad’s position as an attempt to hold the government to its burden of properly establishing the amount of restitution. As discussed above, the court finds the government has met its burden of proof.

IV. CONCLUSION

Accordingly, the court hereby ORDERS that defendant Sarad shall pay restitution in the amount of $7,047,200.52, payment to begin immediately. Restitution is to be sent to the Clerk of the Court, who shall forward it to the victims as described in the restitution section of the pre-sentenc-ing report, EOF No. 70. While Mr. Sarad is incarcerated, payment of restitution is due during imprisonment at the rate of not less than $25 per quarter, and payment shall be made through the Bureau of Prisons Inmate Financial Responsibility Program. Any interest is waived.

IT IS SO ORDERED.

This order resolves EOF No. 104.

1 . MVRA’s complexity provision provides that "if the court finds, from facts on the record— ... that determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by tire burden on the sentencing process,” then the court is not obliged to provide restitution under the ■ MVRA. 18 U.S.C. § 3663A(c)(3)(B).

2 . This section provides, in relevant part, that a restitution order may require a defendant "in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense—if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of—... the value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned.”