### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1131

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

V ANCE W HITE

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13

‐ cr

‐ 00767

‐ 3

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED J ANUARY 5, 2018

— D ECIDED M ARCH 2, 2018

____________________

Before K ANNE

, R OVNER

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Vance White participated in a

wire fraud scheme and pleaded guilty to one count of wire

fraud, 18 U.S.C. § 1343, and one count of aggravated identity

theft, 18 U.S.C. § 1028A(a)(1). The district court calculated

White’s Sentencing Guidelines range based on the amount of

loss caused by the entire scheme over four years. During most

of that time, though, White was in prison. We conclude that

White’s guilty plea did not admit his involvement from the2 No. 17

‐ 1131

outset of the scheme. No other evidence in the record pro

‐

vides sufficient support to hold White responsible for the en

‐

tire duration. We therefore vacate his sentence and remand

for resentencing.

I. Factual and Procedural Background

White and his co

‐ schemers bought merchandise in retail

stores with fake checks and then returned the merchandise for

cash. Over about four years, the group targeted 32 stores and

inflicted actual losses of approximately $627,000. Posing as

representatives of a third

‐ party check

‐ processing company,

the schemers contacted retail stores and obtained customers’

bank account information from the most recent personal

checks used at the stores. The schemers used the account in

‐

formation to make counterfeit checks. They then used the

checks to buy merchandise that they would later return for

cash.

In his plea agreement, White admitted to a key paragraph

of the government’s factual basis for the plea:

Beginning no later than in or around the fall of 2009 and

continuing until at least in or around the summer of 2013

,

in the Northern District of Illinois, Eastern Division,

and elsewhere,

... VANCE WHITE

..., together with

other individuals known and unknown to the Grand

Jury (the “co

‐ schemers”), knowingly devised, in

‐

tended to devise, and participated in a scheme to de

‐

fraud and to obtain money by means of materially false

and fraudulent pretenses, representations, and prom

‐

ises.

The problem is that White was in prison for most of that

time. He entered state custody on September 18, 2009 and wasNo. 17

‐ 1131 3

not released until nearly two years later, on August 19, 2011.

He went back into custody on August 20, 2012, leaving him at

liberty to pursue the fraud for only one year during the four

‐

year scheme. 1

In calculating a guideline sentencing range, the district

court found that White’s offense level was 22. White’s criminal

history category was VI, already the highest level at age 30,

based on numerous fraud, theft, and forgery convictions. The

guideline range was 84 to 105 months in prison. The court im

‐ posed a total sentence of 59 months, giving White credit for

24 months served on a related Illinois forgery conviction. See

U.S.S.G. §§ 5G1.3(b), 5K2.23. The court structured the sen

‐

tence in two parts: 35 months for the wire fraud count, plus a

mandatory, consecutive 24 months for the identity theft count.

The court also ordered that the 59

‐ month sentence run con

‐ currently with sentences from two different Illinois cases.

White is due to be released in August 2018.

II. Analysis

A. Loss Amount

White’s principal argument is that the district court used

the wrong guideline offense level, holding him responsible

1 The government argues that White’s presentence report is ambigu

‐

ous because it notes that he was “returned to custody” on August 10, 2010.

The government reads this language to suggest that White was released

following his September 2009 arrest. White argues that he was in custody

continuously from September 2009 to August 2011 because he was held

locally pending trial after the September 18, 2009 arrest and then re

‐

manded to the custody of the Illinois Department of Corrections to serve

the remainder of his sentence. Any remaining ambiguity on this point

should be addressed on remand.4 No. 17

‐ 1131

for losses imposed by co

‐ schemers while he was in prison be

‐

fore he joined the scheme. The guideline issue is governed by

U.S.S.G. § 1B1.3(a)(1), which offers guidance for when a par

‐

ticular defendant should be held responsible for actions of co

‐

schemers. According to White, the district court used an of

‐

fense level that was two levels too high. We review de novo

legal interpretations and applications of the Guidelines,

United States v. Sykes

, 774 F.3d 1145, 1149 (7th Cir. 2014), citing

United States v. Wright

, 651 F.3d 764, 774 (7th Cir. 2011), and

we review findings of loss amounts for clear error. United

States v. Orillo

, 733 F.3d 241, 244 (7th Cir. 2013), citing United

States v. Littrice

, 666 F.3d 1053, 1060 (7th Cir. 2012).

1. Harmless Error?

Since the Sentencing Guidelines are advisory rather than

binding, Beckles v. United States

, 580 U.S.

—, —, 137 S. Ct. 886,

894 (2017); United States v. Booker

, 543 U.S. 220, 245 (2005), and

since the district court imposed a sentence that was in fact be

‐

low the calculated guideline range, we have looked first for

signs as to whether the disputed loss amount actually made a

difference in the defendant’s final sentence.

In federal sentencing, the advisory Guidelines are the

“starting point and

... initial benchmark,” and serve to “an

‐

chor

... the district court’s discretion.” Molina

‐ Martinez v.

United States

, 578 U.S.

—, —, 136 S. Ct. 1338, 1345 (2016), quot

‐ ing Gall v. United States

, 552 U.S. 38, 49 (2007) (omission in

original), and Peugh v. United States

, 569 U.S. 530, 549 (2013)

(omission in original). After calculating an advisory guideline

range, the district court must consider the final sentence un

‐

der 18 U.S.C. § 3553(a), and it must do so without presuming

that a guideline sentence will be reasonable. Rita v. United

States

, 551 U.S. 338, 351 (2007). Still, a judge imposing sentenceNo. 17

‐ 1131 5

must calculate the applicable Sentencing Guidelines range

correctly; an error is “a procedural error that we presume in

‐

fluenced the judge’s choice of sentence, unless the judge said

otherwise.” United States v. Marks

, 864 F.3d 575, 582 (7th Cir.

2017); see generally Molina

‐ Martinez

, 578 U.S. at —, 136 S. Ct.

at 1347–48. At the same time, we have often encouraged dis

‐

trict judges facing a tricky guideline issue to ask themselves

whether the answer actually makes a difference to them.

Marks

, 864 F.3d at 576 (“when an arcane and arbitrary issue

arises under the Sentencing Guidelines, the sentencing judge

should ask, ‘Why should I care?’”). When a judge explains

that a disputed guideline issue ultimately did not matter for

the exercise of sentencing discretion under § 3553(a), we will

treat an arguable error in the guideline calculation as harm

‐

less. United States v. Snyder

, 865 F.3d 490, 500 (7th Cir. 2017).

In this case, we have no signals that might support a find

‐ ing that any error was harmless. The district court explained,

quite properly, that White’s sentence was below the calculated

guideline range to give him credit for a state sentence that he

had already served, as provided in U.S.S.G. §§ 5G1.3(b) and

5K2.23, and to account for § 3553(a) factors, like his “tough

life” and the non

‐ violent nature of his crimes. The judge did

not otherwise signal that the guideline loss calculation did not

affect the final sentence, so we must address the issue on the

merits.

2. Loss Amount Merits

We begin with a roadmap of the applicable guideline pro

‐

visions to determine the correct offense level. For fraud

crimes, the most important offense characteristic is often the

amount of the actual or intended loss resulting from the6 No. 17

‐ 1131

scheme. See U.S.S.G. § 2B1.1(b)(1) and cmt. n.3. Specific of

‐

fense characteristics depend on both the offense of conviction

and “relevant conduct,” which is a critical concept in the en

‐

tire Sentencing Guidelines structure and which can cover con

‐

duct much broader than the offense of conviction. See

U.S.S.G. § 1B1.3. The loss amount calculation includes losses

based not only on the defendant’s own actions but also the

actions of co

‐ schemers, if those actions were “within the scope

of,” “in furtherance of,” and “reasonably foreseeable in con

‐

nection with” the jointly undertaken criminal activity,

§ 1B1.3(a)(1)(B), and “occurred during the commission of the

offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for

that offense,” § 1B1.3(a)(1); see also Sykes

, 774 F.3d at 1150. The

notes to § 1B1.3 explain that in joint criminal activity, the

scope of different defendants’ relevant conduct may be differ

‐

ent. Relevant conduct “does not include the conduct of mem

‐

bers of a conspiracy prior to the defendant joining the con

‐ spiracy, even if the defendant knows of that conduct.” § 1B1.3

cmt. n.3(B).

When the issue of individual responsibility for conduct of

others is contested, a district court should make a finding on

each element of the relevant conduct test. See, e.g., Sykes

, 774

F.3d at 1150 (requiring “two

‐ step analysis” under previous

version of § 1B1.3(a)(1)(B)); 2 United States v. Salem

, 597 F.3d

877, 886 (7th Cir. 2010) (requiring findings on scope, in

‐ fur

‐

2 White was sentenced using the 2016 version of the Guidelines.

Amendment 790 replaced the two elements (foreseeability and in

‐ further

‐

ance) with three (scope, in

‐ furtherance, and foreseeability). See U.S.S.G.

app. C (Supp. 2016).No. 17

‐ 1131 7

therance, and foreseeability). The problem here is that the in

‐

dictment alleged that White participated in a scheme to de

‐

fraud beginning in the fall of 2009 and continuing at least until

the summer of 2013, yet White was in prison for most of that

time, having been out of prison during that range only from

August 19, 2011 until August 20, 2012. It is surely rare for a

defendant’s criminal history to work this way as a potential

mitigating factor, but that is the possible effect here, at least as

to loss amount and offense level.

As a general rule, the government must show an aggravat

‐ ing offense characteristic under the Guidelines by a prepon

‐

derance of the evidence, and this rule applies to the loss

amount in a fraud offense. Orillo

, 733 F.3d at 244, citing

Littrice

, 666 F.3d at 1060. In this case, both the evidence and

the district court’s findings are insufficient to support the full

loss amount used in White’s sentencing. To meet its burden

on the loss amount, the government relied on the admissions

in the plea agreement and argued that “our information

... indicates that he was involved prior to his incarceration in

2009.” The prosecutor did not elaborate on this information,

which turns out to be critical for this point. The district court

overruled White’s objection: “I will find that the government’s

dollar amount

– it seems to me it’s clear that the fact that he’s

involved at the beginning, he leaves, and then he comes back,

I guess you could say so much for the deterrent effect of sen

‐ tencing on him.” The district court made no more explicit

finding on the scope of the jointly undertaken criminal activ

‐ ity, whether others’ actions were in furtherance of that activity,

or whether White could reasonably foresee those actions. See

U.S.S.G. § 1B1.3(a)(1)(B). (Still, we certainly understand the

district court’s “so much for deterrent effect” comment, but

that’s a matter to consider further on remand.)8 No. 17

‐ 1131

To support the loss amount using the beginning of the

scheme in 2009, the government relies primarily on White’s

plea agreement and his admission of the government’s factual

basis in his guilty plea hearing. The government also relies on

White’s challenge to another part of the factual basis (but not

the dates of the scheme) at the plea hearing, earlier offenses

described in the presentence report, the grand jury testimony

of a co

‐ schemer, and other information in the presentence re

‐

port. None of these items can close the evidentiary gap.

First, White’s guilty plea and his admission in the plea

agreement are insufficient because they are too ambiguous on

the key point. A plea agreement and admissions in a guilty

plea hearing may of course establish a factual foundation for

sentencing. The question here is just what White admitted.

Our broad holdings about the evidentiary force of admissions

in a plea agreement do not hold that a general admission in a

plea agreement to a conspiracy or scheme spanning a certain

time conclusively establishes individual participation during

that entire time. E.g., Sykes

, 774 F.3d at 1151–52, 1151 n.7 (ad

‐

mission to participating in scheme foreclosed argument that

defendant could foresee only loss amounts caused directly by

defendant’s own participation); Orillo

, 733 F.3d at 245, 247

(“defendant’s own admission is, of course, evidence enough

of the matter admitted” where defendant did not even try to

argue that other people may have been responsible); United

States v. Krasinski

, 545 F.3d 546, 551–53 (7th Cir. 2008) (affirm

‐ ing estimate of drug quantity calculated using defendant’s ad

‐

mission to delivering range of pills on range of occasions be

‐

cause admission established maximum and minimum quan

‐

tities, but saying nothing about sentencing consequences of

admission to date range in plea agreement); United States v.

Warneke

, 310 F.3d 542, 550 (7th Cir. 2002) (saying nothingNo. 17

‐ 1131 9

about sentencing consequences of agreement to wide date

range and holding that admission “removes all contest from

the case” where defendant attempted to invoke Apprendi be

‐

cause of his guilty plea).

On this point it is useful to compare White’s argument to

our decision in United States v. Savage

, 891 F.2d 145 (7th Cir.

1989). Savage said in his plea agreement that he could have

reasonably foreseen his co

‐ conspirators’ actions, but he later

argued that he participated in only one drug deal. Like Sav

‐

age, White argues that his admissions about his own conduct

and responsibility were narrower than the scheme charged in

the indictment. The problem is one of language and one of

scale. Savage separately admitted the existence of a conspir

‐

acy during a precise date range and conspiring with others

“throughout this period of time,” and his agreement also

listed discrete transactions. Id. at 146–47. Here, White agreed

to a factual basis that tracked almost verbatim the broad lan

‐

guage of the indictment. White’s admission, then, is no better

than a plea to an indictment—which “admits only the essen

‐

tial elements of the offense.” United States v. Paulette

, 858 F.3d

1055, 1059 (7th Cir. 2017), citing United States v. Dean

, 705 F.3d

745, 747 (7th Cir. 2013), and citing United States v. Kilcrease

, 665

F.3d 924, 929 (7th Cir. 2012); see also United States v. Lawler

,

818 F.3d 281, 282–83 (7th Cir. 2016) (plea to single

‐ count in

‐

dictment charging large

‐ scale conspiracy resulting in five

deaths “did not prove that any particular defendant was re

‐ sponsible for any particular death”), citing United States v.

Walker

, 721 F.3d 828, 836–38 (7th Cir. 2013), judgment vacated

on other grounds

, Lawler v. United States

, 134 S. Ct. 2287 (2014)

(mem.). The beginning and end dates of a scheme are not es

‐

sential elements. See Paulette

, 858 F.3d at 1059–60 (distinguish

‐ ing United States v. Tolson

, 988 F.2d 1494 (7th Cir. 1993)).10 No. 17

‐ 1131

With respect to the timing of his participation in the

scheme, White’s admission in the agreement tracked the lan

‐

guage of the indictment. He admitted that the scheme existed

for four years, and he admitted that he was a part of the

scheme. He did not admit that he was part of the scheme for

the entire four years, and he was not asked whether he was.

Again, a guilty plea admits only the essential elements of the

offense, and dates are not elements of the offense. Paulette

, 858

F.3d at 1059; cf. United States v. Wang

, 707 F.3d 911, 916 (7th

Cir. 2013) (affirming foreseeability finding and noting that

“there is no evidence that the court held Wang accountable for

documents that predated his involvement in the conspiracy”);

United States v. Kopshever

, 6 F.3d 1218, 1222 (7th Cir. 1993) (re

‐ jecting government’s argument that guilty plea to conspiracy

during date range preceded by “on or about” admitted that

fraudulent conduct continued after end date of range), abro

‐ gated on other grounds

, United States v. Vizcarra

, 668 F.3d 516

(7th Cir. 2012). The analysis (but not the outcome here, be

‐

cause of a lack of evidence) would be different if White had

expressly and separately admitted his own participation over

the entire duration of the scheme. See Savage

, 891 F.2d at 146

(admission to participation “throughout this period of time”).

A defendant may admit more than just the essential ele

‐

ments of an offense by stipulating to facts in a plea agreement

or by agreeing with the government’s factual basis. Paulette

,

858 F.3d at 1060. White did that: he admitted to specific activ

‐

ities like contacting stores to get customer information, using

the fraudulently obtained information to create counterfeit

checks, making purchases with the counterfeit checks, and

then returning the fraudulently obtained merchandise for

cash. But none of those admissions speaks to the timing prob

‐

lem. The defendant’s admission to the general duration of theNo. 17

‐ 1131 11

scheme does not conclusively establish his own participation

in the entirety of the scheme with others, at least where the

defendant was in prison for much of that time. At sentencing,

the judge asked the government specifically whether it was

charging White for any conduct before his release from prison

in August 2009, and the prosecutor said no. While the prose

‐

cutor contradicted that position at other points, we think that

was the correct answer. Still, the confusion on the point un

‐

derscores the problem with the scope of White’s admission.

And since the ambiguous admission in the plea agreement is

not sufficient, it makes no difference whether he challenged

other aspects of the factual basis at his change of plea hear

‐ ing. 3

The government’s remaining three points fare no better.

On this record, a connection between White’s 2007 and 2009

forgery convictions and this scheme is speculative. The

presentence report contains no details relating to the factual

basis for the 2007 conviction. The 2009 conviction involved

fraud but by a different method: White tried to buy merchan

‐

dise with a fraudulent traveler’s check and fake identification.

The government offers no other evidence to corroborate any

circumstantial connection to the scheme charged and admit

‐

ted here, using checking account information and involving

others. Cf. United States v. Patel

, 131 F.3d 1195, 1204 (7th Cir.

1997) (“participation in other drug transactions does not itself

establish the required relationship between those earlier

3 There is no waiver or forfeiture problem here. White argued—both

in writing before the sentencing hearing and orally during the hearing—

that he should not be held accountable for the entire loss amount.12 No. 17

‐ 1131

transactions and the offense of conviction”). Perhaps the gov

‐

ernment can establish the link on remand, but it did not do so

in this record.

As for co

‐ schemer Ayanna Armstrong’s grand jury testi

‐

mony, the records of White’s imprisonment show it was not

accurate. Armstrong testified that White began participating

in 2010, made purchases and returns in 2010, and began mak

‐ ing fake identification cards in 2010. White spent all of 2010 in

state custody.

Other information in the presentence report also falls

short. White’s statement that he learned how to commit check

fraud after being discharged from a group home does not

prove that he participated in the charged scheme before he went

to prison in September 2009. And the statement that White

“relied on funds from the instant offense and from other crim

‐

inal activities” from 2007 to 2012 is also too vague to prove

that the scheme of the offense of conviction or its relevant con

‐

duct began in 2007. After all, White had earned a criminal his

‐

tory category of VI by the time of the offense of conviction,

primarily through a long history of other frauds, thefts, and

forgeries. That history counts toward the criminal history cal

‐

culation, but not all of those prior offenses can be treated as

relevant conduct under the Guidelines for this sentence. 4

4 Whether White’s own, uncharged conduct counts as relevant con

‐

duct is addressed under U.S.S.G. § 1B1.3(a)(2). The standards under that

Guideline are slightly different than the standards under § 1B1.3(a)(1). Sa

‐

lem

, 597 F.3d at 887 n.4; see also United States v. Acosta

, 85 F.3d 275, 281 (7th

Cir. 1996) (stating test for when “offenses are part of a common scheme or

plan” for purposes of § 1B1.3(a)(2)).No. 17

‐ 1131 13

To be sure, the district court might well impose the same

sentence on remand. Perhaps the government can fill in the

evidentiary gaps. The court’s discretion under § 3553(a) is

substantial and may take into account White’s terrible record

of recidivism. And even on White’s own terms, the guideline

issue itself may be very close. The key threshold under

U.S.S.G. § 2B1.1(b)(1)(H) is whether the loss amount exceeds

$550,000. White argues that the first evidence of his involve

‐

ment in the charged scheme is a fake check he passed in De

‐

cember 2011. Calculating the loss amount from the date of

that check results in a loss of $453,923.55, which corresponds

to a 12

‐ level enhancement under § 2B1.1(b)(1)(G), instead of

the 14

‐ level enhancement White received under

§ 2B1.1(b)(1)(H). That two

‐ level difference would have re

‐

duced White’s offense level to 20, which would have reduced

his guideline range from 84 to 105 months to 70 to 87 months.

U.S.S.G. ch. 5, pt. A.

But White admitted to participating in the scheme as early

as September 2011 by requesting (and receiving) credit for

time served on an Illinois forgery conviction that stemmed

from an arrest on September 13, 2011. At sentencing, White

argued that offense was “all part of the scheme.” Using the

government’s loss spreadsheet, the earlier date leads to a loss

amount of $548,353.71, just shy of the $550,000 that would re

‐ quire the same guideline range that the district court used.

White thus narrowly avoids a harmless error finding, see

United States v. Crockett

, 82 F.3d 722, 730 (7th Cir. 1996) (mis

‐

taken calculation of drug quantity “harmless” because correct

quantity would result in same base offense level), but sentenc

‐ ing judges are free to consider where relevant fraud losses (or

robbery losses or drug quantities, etc.) fall in the relevant

ranges under the Guidelines.14 No. 17

‐ 1131

Without a more specific and supported finding on when

White’s participation in the scheme began, we cannot assume

that his participation began any earlier than the September 13,

2011 arrest. 5 We must therefore vacate the sentence and re

‐

mand. Compare United States v. Locke

, 643 F.3d 235, 244–45

(7th Cir. 2011) (rejecting inclusion of dismissed counts as rel

‐

evant conduct where “both the findings and supporting evi

‐

dence are deficient,” and collecting cases), with United States

v. Bogdanov

, 863 F.3d 630, 634 (7th Cir. 2017) (affirming loss

calculation because “abundant circumstantial evidence” and

“direct evidence” corroborated admissions in plea agreement

and supported finding that defendant stole goods), and Pau

‐

lette

, 858 F.3d at 1060 (admission in plea agreement that con

‐ spiracy involved methamphetamine was “conclusive” proof

that defendant participated in conspiracy before 2013 because

evidence showed that defendant’s only methamphetamine

transactions occurred before 2013).

B

. Restitution

White has also objected to the restitution ordered as part

of his sentence. The restitution issue is similar but not identi

‐

cal to the loss amount issue. The Mandatory Victim Restitu

‐

tion Act, 18 U.S.C. § 3663A, applies to a victim’s losses from

the offense of conviction, which is narrower than relevant

conduct under the Guidelines. The amount of restitution is

5 At least some evidence supports White’s argument that he joined the

scheme after it began. Armstrong testified that White joined after other

participants had already been obtaining bank account numbers and coun

‐ terfeiting checks. (The government’s other grand jury witness never men

‐

tioned White.) And on the government’s spreadsheet documenting every

transaction in the scheme by all participants, White appears for the first

time on December 19, 2011.No. 17

‐ 1131 15

“limited to the actual losses caused by the specific conduct

underlying the offense, and, like the loss amount, the govern

‐

ment must establish that by a preponderance of the evi

‐

dence.” United States v. Orillo

, 733 F.3d 241, 244 (7th Cir. 2013),

citing United States v. Kennedy

, 726 F.3d 968 (7th Cir. 2013); see

also United States v. Burns

, 843 F.3d 679, 689 (7th Cir. 2016)

(“The MVRA has a proximate cause requirement.”); Locke

, 643

F.3d at 247 n.7 (noting that “‘relevant conduct’ is not within

the scope of the MVRA”). We ordinarily review restitution

amounts for abuse of discretion, but because White failed to

object to the restitution calculation at the sentencing hearing,

he and the government agree that we should review the resti

‐

tution amount for plain error. See Locke

, 643 F.3d at 246.

The restitution amount is plainly erroneous. In calculating

restitution, the district court should “‘adequately demarcate

the scheme.’” Id. at 247–48 (vacating restitution order under

plain error review because district court “never discussed its

restitution decision” and made no findings on scope of

scheme or victims harmed), quoting United States v. Smith

, 218

F.3d 777, 784 (7th Cir. 2000). In this case, the district court did

not do so. It imposed the restitution without explaining how

White was responsible for that amount and without evidence

to support the full amount. The lack of a finding is not neces

‐ sarily fatal, but the lack of evidentiary support that would

have supported a finding is. See, e.g., Burns

, 843 F.3d at 689–

90 (finding plain error in restitution amount where defendant

failed to object); id

. at 691 (Hamilton, J., dissenting) (“We

should not find ‘plain error’ for the mere lack of a finding that

the judge was not asked to make, at least when the evidence will

support such a finding .” (emphasis added)).16 No. 17

‐ 1131

We vacate the restitution amount for the same reason as

the loss amount. See Orillo

, 733 F.3d at 244 (resolving restitu

‐

tion and loss amount issues together because defendant

raised “one challenge applicable equally to both determina

‐

tions”), citing United States v. Ali

, 619 F.3d 713, 720 (7th Cir.

2010). Also, we must remand because the evidence actually

contradicts the restitution award. The restitution amount in

‐

cludes about $25,000 in losses that predate the “fall of 2009.”

The government argues that the loose language in the plea

agreement (i.e., “no later than in or around” the fall of 2009)

“does not necessarily exclude” pre

‐ 2009 losses. That argu

‐

ment stretches too far—especially because the prosecutor ex

‐ pressly stated at sentencing that the government did not

charge White with any conduct before his release from prison

in August 2009. To hold White responsible for a restitution

amount, the government must prove that amount by a pre

‐ ponderance of the evidence. This record falls short of that

standard.

We VACATE White’s sentence and the restitution order

and REMAND for resentencing consistent with this opinion.

Because White is due to be released in August 2018, the dis

‐

trict court should expedite his resentencing. Our mandate

shall issue immediately.