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
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SELYA, Circuit Judge. This is a case in which defendantappellant 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. MercedGarcía, 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, SubDirector 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 twelvemonth 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 twostep 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 twelvemonth 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 cherrypick 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 
- 23 -

remand for the entry of an amended restitution order consistent 

with this opinion.

So Ordered.