United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2014 Decided July 24, 2015

No. 12-3092

UNITED STATES OF AMERICA,

APPELLEE

v.

ENYINNAYA E. UDO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00090-1)

Rosanna M. Taormina, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was A.J. 

Kramer, Federal Public Defender. Tony Axam Jr., Federal 

Public Defender, entered an appearance.

Elissa R. Hart-Mahan, Attorney, U.S. Department of 

Justice, argued the cause for appellee. With her on the brief 

were Ronald C. Machen, U.S. Attorney, Frank P. Cihlar, 

Chief, Criminal Appeals and Tax Enforcement Policy Section, 

U.S. Department of Justice, and Gregory Victor Davis, 
2

Attorney. Elizabeth Trosman, Assistant U.S. Attorney, entered 

an appearance.

Before: HENDERSON, TATEL, and GRIFFITH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

A jury convicted Enyinnaya Udo of twenty-five counts of 

aiding or assisting in the filing of a false tax return. He appeals 

those convictions, alleging that the court improperly instructed 

the jury and that he received ineffective assistance of counsel.

Finding neither error in the jury instruction nor prejudice from

the alleged ineffectiveness, we affirm Udo’s conviction. Udo 

also appeals the restitution order imposed as a condition of his 

supervised release. The government has conceded error on this 

point, and we agree that the court improperly calculated the 

restitution. We thus remand the case to the district court to 

reconsider that aspect of Udo’s sentence.

I

Udo was a certified public accountant (CPA) who owned a 

firm that derived most of its revenue from preparing personal 

tax returns. Trouble for Udo arose when the IRS noticed that 

returns he prepared frequently claimed thousands of dollars in 

unreimbursed employee expenses. An employee incurs these 

expenses, such as travel costs, use of a personal vehicle for 

business, or professional insurance premiums, as part of her 

job but is not reimbursed for them. A taxpayer can lower her 

tax liability or increase her tax refund by claiming deductions 

for such expenses on her tax return. See generally Internal 

Revenue Service, Miscellaneous Deductions, Department of 
3

the Treasury 2-3 (Dec. 29, 2014), http://www.irs.gov/pub

/irs-pdf/p529.pdf.

Udo prepared dozens of returns that claimed unreimbursed

employee expenses for clients who never told him they had 

incurred such expenses or asked him to claim them on their 

returns. Some of these claims were in excess of $20,000.

Sometimes, Udo would arrange a loan that would provide a 

client with upfront cash in anticipation of the tax refund Udo’s 

work had secured. Udo would then deduct his fee from this

loan.

Suspicious of these returns, the IRS conducted a sting 

operation targeting Udo in 2008. An undercover agent posed as 

a walk-in client and asked for Udo’s help preparing a fake tax 

return while she surreptitiously videotaped the consultation. 

After an initial calculation showed that the “client” owed taxes, 

Udo prepared a return claiming $14,684 in unreimbursed 

employee expenses without the agent suggesting that she had 

incurred them. This adjustment transformed the agent’s

apparent tax liability into a tax refund of $1,301. Udo had the 

agent sign the IRS form that claimed the expenses. He then 

arranged for his fee to be deducted from a loan that he arranged

for her to receive that day in anticipation of her tax refund. A 

grand jury later indicted Udo on twenty-five counts of 

violating I.R.C. § 7206(2), which makes it a felony to 

“[w]illfully” help a taxpayer file a materially false tax return.

We recount only the events at Udo’s trial relevant to this 

appeal. During his opening statement at trial, Udo’s counsel 

told the jury that the case “comes down to . . . he said, she 

said.” Trial Tr. 168 (Aug. 1, 2012). Counsel went on to 

promise that the jury would “hear from Mr. Udo,” who would 

explain that he acted in good faith based on what his clients had 
4

told him about their expenses. Id. at 173. But Udo never 

testified.

Instead, when the government’s case came to a close, 

Udo’s counsel asked the court for a ruling limiting any 

cross-examination of Udo to those issues about which he

would testify: his background, his education, and his 

knowledge of the law and his professional duties. Relying on

Brown v. United States, defense counsel argued that a 

defendant who testifies in his own defense does not waive the 

Fifth Amendment’s protection from self-incrimination to 

matters unrelated to his testimony. Cf. Brown v. United States,

356 U.S. 148, 154-55 (1958). In response, the government 

argued that, at the very least, Federal Rule of Evidence 608(b) 

permitted questioning Udo about his character for 

truthfulness.1 Skeptical of Udo’s request, the court stated that 

it would be “very, very, very surprised” if counsel was correct.

Trial Tr. 67 (Aug. 3, 2012). After a short break to consider the 

question, the court announced that it would not limit 

cross-examination before Udo testified, and that his credibility 

was fair game for the government to examine.2 Udo’s counsel

decided not to call him to testify.

 1 Rule 608(b) allows a party to inquire on cross-examination 

into specific instances of a witness’s conduct if those instances are 

probative of the witness’s character for truthfulness. See FED. R.

EVID. 608(b).

2 Udo does not appeal the court’s determination that the 

government would likely be able to cross-examine him about his 

character for truthfulness. Cf. Brown, 356 U.S. at 154-55 (“If [a 

defendant] takes the stand and testifies in his own defense his 

credibility may be impeached and his testimony assailed like that of 

any other witness, and the breadth of his waiver is determined by the 

scope of relevant cross-examination.”).
5

After the parties rested, the court instructed the jury on the 

elements of I.R.C. § 7206(2) by tracking the language of the 

statute and using the same definition of “willfully” employed 

by the Supreme Court in Cheek v. United States, 498 U.S. 192, 

201 (1991). Udo urged that to establish that he acted willfully, 

the government must also prove that he knew that the tax 

returns in question were materially false or fraudulent. The 

court refused that request. The court also instructed the jury on 

tax principles drawn from titles in the Code of Federal 

Regulations governing the Treasury Department and the IRS.

Udo’s counsel agreed to that instruction.

The jury convicted Udo on all twenty-five counts. At 

sentencing, the government’s sentencing memorandum 

claimed that Udo owed $311,791 in restitution. An IRS 

revenue agent explained that he calculated this figure based on 

the twenty-five false returns Udo was convicted of preparing 

and numerous other false returns that the IRS discovered and 

considered to be part of Udo’s same criminal scheme. After 

crediting payments that Udo’s former clients had made toward 

outstanding tax liabilities, the government requested that the 

court order Udo to pay restitution of $262,966 as a condition of 

supervised release. The court sentenced Udo to twenty-four 

months imprisonment and ordered him to pay that amount in 

restitution as a condition of supervised release.

II

Udo argues that the court erred by failing to instruct the 

jury that I.R.C. § 7206(2) requires the government to prove 

beyond a reasonable doubt that he knew that the income tax 

returns in question were materially false. The government 

contends we must review the instruction for plain error because 

Udo made no objection to it at trial. Cf. FED. R. CRIM. P. 52(b) 

(permitting only plain error review for issues “not brought to 
6

the court’s attention” below). Udo insists that he objected to 

the instruction before trial, preserving the question for our de 

novo review. See United States v. Stadd, 636 F.3d 630, 639-40 

(D.C. Cir. 2011). But we need not resolve this dispute. Udo’s 

challenge fails under either standard.

I.R.C. § 7206(2) criminalizes “willfully aid[ing] or 

assist[ing]” in the filing of a false or fraudulent tax return. The 

Supreme Court has held that in tax cases, “willfully” or 

“willfulness” means “the voluntary, intentional violation of a 

known legal duty.” Cheek, 498 U.S. at 201 (internal quotation 

marks omitted). Udo maintains that he could not have 

voluntarily and intentionally aided or assisted in the filing of a 

false or fraudulent tax return without knowing that the returns

were in fact false or fraudulent. 3 He argues his conviction 

should be set aside because the instruction on the elements of 

the offense did not require the government to prove as much.

We have previously held that a court’s refusal to give a 

requested jury instruction is not reversible error if that 

instruction was “‘substantially covered in the charge actually 

 3 Most of our sister circuits agree with Udo’s interpretation of 

the statute. Four circuits have pattern jury instructions for I.R.C. 

§ 7206(2) that include a knowledge element similar to the one Udo 

requested. See Pattern Crim. Jury Instr. 5th Cir. 2.97 (2012); Pattern 

Crim. Jury Instr. 7th Cir. 7206(2) (2012); Pattern Crim. Jury Instr. 

10th Cir. 2.94 (2011); Pattern Crim. Jury Instr. 11th Cir. 109.2

(2010). Two more circuits have adopted the same through case law. 

See United States v. Stadtmauer, 620 F.3d 238, 252-59 (3d Cir. 

2010); United States v. Searan, 259 F.3d 434, 441 (6th Cir. 2001). 

And three more have assumed, without explicitly holding, that 

knowledge of falsity is an element of I.R.C. § 7206(2). See Driscoll 

v. United States, 376 F.2d 254, 254 (1st Cir. 1967); United States v. 

Holecek, 739 F.2d 331, 335 (8th Cir. 1984); United States v. 

Jackson, 65 F. App’x 754, 756 (2d Cir. 2003).
7

delivered to the jury.’” United States v. Hurt, 527 F.3d 1347, 

1351 (D.C. Cir. 2008) (quoting United States v. Taylor, 997 

F.2d 1551, 1558 (D.C. Cir. 1993)). This follows from the 

principle that courts do not review discrete elements of a jury 

instruction in isolation but rather in the overall context of how 

the court told the jury to go about its work. See Boyd v. United 

States, 271 U.S. 104, 107 (1926). 

Udo’s argument falters under this standard. He seizes 

upon the court’s failure to provide his proposed instruction as 

part of the instruction on the elements of I.R.C. § 7206(2), but 

he overlooks other instructions that “adequately conveyed the 

substance of the requested instruction to the jury.” Hurt, 527 

F.3d at 1351. Beyond the specific instruction that Udo finds 

inadequate, the court also instructed the jury that “[g]ood faith 

is an absolute defense to the charges in this case,” and “[a] 

defendant is under no burden to prove his good faith; rather the 

prosecution must prove that the defendant knew the deductions 

and credits were false or fraudulent.” Trial Tr. 27 (Aug. 6, 

2012). This instruction on good faith informed the jury in no 

uncertain terms that Udo had an “absolute defense” to the 

charges against him unless he “knew the deductions and credits 

were false or fraudulent.” Id. at 26-27. The jury thus

understood that it could not convict Udo unless it found that he 

knew the returns were materially false—precisely what Udo 

wanted the jury to understand with his proposed instruction on 

the elements of I.R.C. § 7206(2).

Reading the instructions as a whole, we conclude that the 

court’s instruction on good faith “substantially covered” the 

knowledge element that Udo requested. See Hurt, 527 F.3d at 

1351. His challenge to the jury instruction on the elements of 

I.R.C. § 7206(2) is therefore denied.
8

III

Udo claims that his trial counsel made two principle 

mistakes that rendered his assistance constitutionally 

ineffective. First, counsel promised in his opening statement 

that Udo would testify even though Udo never took the stand.

Second, counsel agreed to an instruction that allegedly 

permitted the jury to convict Udo of failing to observe

professional standards of care rather than of violating a 

criminal statute.

The “general practice” of this court is to remand an 

ineffectiveness claim for an evidentiary hearing. See United 

States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (internal 

quotation marks omitted). This is unnecessary, however, if 

“the trial record conclusively shows that the defendant either is 

or is not entitled to relief.” Id. at 910 (internal quotation marks

omitted). Here, remand is not needed because the record makes 

clear that Udo is not entitled to relief.

We review a claim for ineffective assistance of counsel

under the familiar test set forth in Strickland v. Washington, 

466 U.S. 668 (1984). A defendant must show not only “that 

[his] counsel's performance was deficient” but also “that the 

deficient performance prejudiced the defense.” Id. at 687. 

“Prejudice” means a “reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. A “reasonable 

probability” is one “sufficient to undermine confidence in the 

outcome.” Id. If the defendant fails to demonstrate prejudice, 

we may affirm the conviction without deciding whether 

counsel’s performance was deficient. See, e.g., United States v. 

Williams, 488 F.3d 1004, 1010 (D.C. Cir. 2007). We do so 

here.
9

We consider each of Udo’s arguments that his trial counsel 

was ineffective while keeping in mind that the government’s 

case against him was, in a word, overwhelming. The 

prosecution played for the jury a video of Udo committing the 

crime and presented twenty-five separate tax returns he 

prepared that listed unreimbursed employee expenses. Udo’s 

actions were thus never in doubt. Nor was his intent: Six 

witnesses swore that they never told him that they incurred the

expenses on their returns, and Udo—a licensed CPA—never 

introduced a shred of evidence suggesting that he thought that 

making up these expenses out of whole cloth was somehow 

permissible. The government, in other words, put on a 

comprehensive case supported by significant evidence. The bar

Udo must clear to demonstrate that any mistake by his trial 

counsel casts doubt on the outcome, see Strickland, 466 U.S. at 

694, is thus a high one.

Udo argues that his counsel was constitutionally

ineffective because he incorrectly promised the jury that it

would hear from Udo. The false promise was especially 

prejudicial, Udo argues, because his counsel characterized the 

case from the start as a “he said, she said” matter that depended 

on Udo providing the “he said.” Udo points to cases from

several of our sister circuits finding ineffectiveness when a 

defense attorney mistakenly promised that a witness would 

testify. See McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 

1993); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002); 

United States ex rel. Hampton v. Leibach, 347 F.3d 219, 

258-59 (7th Cir. 2003); Saesee v. McDonald, 725 F.3d 1045, 

1049-50 (9th Cir. 2013).

As an initial matter, “the [Supreme] Court has emphasized 

the limited nature of any exceptions to the general rule that a 

defendant must demonstrate actual prejudice.” Ouber, 293 

F.3d at 32. That is, only a handful of mistakes by counsel, none 
10

in play here, allow a court to presume constitutional 

ineffectiveness. See Bell v. Cone, 535 U.S. 685, 695-96 (2002) 

(identifying only three examples of ineffectiveness so 

damaging that prejudice is presumed). The Court has never 

said, and we are not prepared to say now, that falsely promising 

in an opening statement that a witness will testify necessarily 

prejudices a defendant. We are thus left to look at the evidence 

against Udo, evaluate the gravity of the harm that counsel’s 

false promise may have caused, and determine whether Udo 

suffered prejudice as a result.

Although counsel’s promise was a tactical misstep, it does 

not raise a “reasonable probability . . . sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. We 

fail to see how the unfulfilled promise in the opening statement

had any bearing on how the jury evaluated the credibility of 

either the videotape or the witnesses. Udo had the same 

opportunity to cross-examine witnesses and question the 

veracity of the videotape that he would have had even if 

counsel had never made the promise. We find no reasonable 

probability that the jury would have weighed this evidence and 

come to a different outcome had counsel never promised the 

jury that Udo would testify.

Nor do the cases Udo cites from our sister circuits give us 

pause. For one, the Third and Ninth Circuits said only in dicta 

that the alleged unfulfilled promises in those cases would 

trigger a claim for ineffectiveness. Both courts eventually 

concluded that no such promises were even made. See Saesee, 

725 F.3d at 1050; McAleese, 1 F.3d at 167. And we agree with 

the government that the other cases Udo cites are readily 

distinguishable from Udo’s because each involved a close call 

whether the evidence supported a guilty verdict. See Hampton, 

347 F.3d at 237 (noting that the district court found the 

prosecution’s case “far from unassailable”); Ouber, 293 F.3d at 
11

33 (calling the case “exceedingly close”). This case was not a 

close call. The strength of the government’s case against Udo 

leaves us with no concern that the outcome would have been 

different had counsel never promised that Udo would testify.

We therefore hold that counsel’s unfulfilled promise did not 

amount to ineffective assistance of counsel because Udo 

suffered no prejudice. See Strickland, 466 U.S. at 694. 

Udo also alleges his counsel was ineffective for agreeing 

to a jury instruction that explained the professional and legal 

responsibilities of tax preparers. The court told the jury that, as 

a professional, Udo had a duty to “exercise due diligence” that 

the returns he prepared were accurate and that IRS regulations 

required him to “make appropriate inquiries” into the facts 

supporting a deduction. Udo argues on appeal that those 

instructions might have allowed the jury to convict him for 

failing to investigate his clients’ returns, which is not a crime, 

instead of willfully preparing false returns, which is.

But reading the instructions as a whole, see Hurt, 527 F.3d 

at 1351, Udo’s argument is farfetched. It was only after the 

court plainly instructed the jury that it must find that Udo 

willfully prepared false returns that the court provided its 

explanation of some background principles it thought would be 

helpful to a jury that might not be versed in the professional 

and legal standards required of those who prepare tax returns 

for others. We cannot see how these instructions might have 

confused the jury. In fact, the court drove home the point that 

there was a clear distinction between the criminal charges Udo 

was facing and the standards of his profession:

[The court is] now going to give you further instructions 

on some pertinent tax principles. [The court] remind[s] 

you, this is a criminal case, not a civil case or an audit 

concerned with the collection of tax. Thus, [the court has] 
12

previously described for each charge that the government 

must prove each of the elements beyond a reasonable 

doubt.

Trial Tr. 30 (Aug. 6, 2012).

More fundamentally, Udo’s argument mistakenly assumes 

the jury convicted him not because of the mountain of evidence 

that he violated I.R.C. § 7206(2) but because he may have 

breached professional standards. After all, he would not have 

suffered any prejudice if the jury convicted him of the crimes 

he was accused of committing. To reach the strained 

conclusion that he was convicted only of violating professional 

standards and not the law, Udo would need to show a 

reasonable probability both that the jury thought his clients 

were lying when they testified that they never asked him to 

claim unreimbursed expenses—even though Udo offered no 

such evidence—and that the jury found the videotape 

unpersuasive. We find this version of events too speculative to 

raise a reasonable probability of a different outcome.

Udo raises another concern with the court’s explanation

about the duties of tax preparers. By agreeing to this 

instruction, Udo argues, his trial counsel relieved the 

government of its burden to prove that Udo acted willfully and 

instead put the defense to the task of proving that his actions 

were innocent mistakes. Udo points to a statement by the 

prosecutor in her closing argument: “We’re talking about Mr. 

Udo who is a CPA, who prepares tax returns, must exercise due 

diligence in the accurate preparation and filing of tax returns to 

the IRS. That’s the jury instruction. That’s the law. He knows. 

He is deemed to know.” Trial Tr. 88 (Aug. 6, 2012).

The government concedes that the prosecutor misspoke. 

The government always bears the burden of proving all 
13

elements of a crime, including intent. By telling the jury that 

Udo “is deemed to know” the law, the prosecutor incorrectly 

suggested that Udo bore the burden of proving he did not. The 

government calls this a mere slip-up during closing argument. 

More importantly, the government argues, was the court’s 

instruction to the jury:

Every defendant in a criminal case is presumed to be 

innocent. This presumption of innocence remains with the 

defendant throughout the trial unless and until the 

government has proven he is guilty beyond a reasonable 

doubt. This burden never shifts throughout the trial. The 

law does not require the defendant to prove his innocence 

or to produce any evidence at all.

Trial Tr. 15-16 (Aug. 6, 2012). The court further instructed the 

jury that “[t]he government has the burden of proving the 

defendant guilty beyond a reasonable doubt as to each element 

of the crime charged,” id. at 16; “[t]he statements, arguments 

and questions of the lawyers are not evidence; they are only 

intended to assist you in understanding the evidence,” id. at 23; 

“the prosecution must prove that the defendant knew the 

deductions and credits were false or fraudulent beyond a 

reasonable doubt,” id. at 27.

We agree with the government that these instructions 

clarified any confusion the prosecutor’s misstatement may 

have caused. This court has previously held that “[t]he jury is 

presumed to follow the instructions” even in the face of a 

misstatement of the law by a prosecutor. United States v. Hall, 

610 F.3d 727, 741-42 (D.C. Cir. 2010). We apply the same

presumption here. The court’s instructions were crystal clear: 

The government bore the sole burden of proving beyond a 

reasonable doubt that Udo knew his clients’ returns were 

materially false. Again, we hold that Udo suffered no prejudice 
14

because any alleged ineffectiveness by his counsel did not

“undermine confidence in the outcome.” Strickland, 466 U.S. 

at 694.

Next, Udo claims his counsel erred in failing to challenge 

the court’s restitution calculation. We discuss the lawfulness of 

the restitution order below, but for purposes of Udo’s 

ineffectiveness argument we point out the obvious. Counsel’s 

failure to object to the restitution order could not have affected 

the outcome of Udo’s trial because it occurred after the verdict. 

Only sentencing remained. 

Finally, Udo argues that the cumulative effect of his 

counsel’s errors merits reversal of his conviction. Again, we 

disagree. As we have repeated throughout, the evidence against 

Udo was overwhelming. None of the errors he alleges could 

have overcome that evidence in isolation, and there is nothing 

about considering them in the aggregate that changes the 

strength of the government’s case. We see no reasonable 

probability that the outcome of the trial would have been 

different had Udo’s counsel done all that Udo now argues he 

should have. See Strickland, 466 U.S. at 694.

IV

Udo challenges the method the government used to 

calculate the loss that the court adopted in its restitution order.

Because Udo’s counsel failed to object to the restitution order 

at trial, we review Udo’s claim for plain error. See FED. R.

CRIM. P. 52(b). Under this standard, he must demonstrate on 

appeal not only that an error occurred, but that it was plain, 

affected his substantial rights, and “seriously affect[ed] the

fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Olano, 507 U.S. 725, 732 

(1993) (internal citation and quotation marks omitted). The 
15

government concedes that the court plainly erred in calculating 

the restitution order, and we agree.

Restitution is exclusively a creature of statute, see United 

States v. Moore, 703 F.3d 562, 573 (D.C. Cir. 2012), and 

comes with important restrictions. See 18 U.S.C. § 3556. 

Relevant here, a court may order restitution to the victim of an 

offense for which the defendant was convicted. See 18 U.S.C. 

§ 3583(d); id. § 3563(b)(2); id. § 3556; id. § 3663(a)(1)(A); id.

§ 3663A(a)(1). But the relevant statutes do not even 

contemplate—much less expressly allow—that a court may 

order a defendant to pay restitution for offenses related to, but 

distinct from, the offenses of conviction. See Hughey v. United 

States, 495 U.S. 411, 413 (1990) (holding that Congress 

“authorize[d] an award of restitution only for the loss caused 

by the specific conduct that is the basis of the offense of 

conviction”).4 A number of our sister circuits have held that 

courts may order restitution as a condition of supervised 

release, but only to compensate for the loss arising from the 

conduct for which the defendant was convicted. See, e.g., 

United States v. Freeman, 741 F.3d 426, 433-34 (4th Cir. 

2014) (collecting cases).

The district court below ordered Udo to pay restitution as a 

condition of supervised release, invoking the authority of 

18 U.S.C. § 3583(d). 5 The government’s post-verdict 

 4 Although 18 U.S.C. § 3663A postdates Hughey, nothing in the 

text of the statute suggests that Congress intended to depart from the 

Court’s holding in Hughey. 5 18 U.S.C. § 3583(d) allows federal courts to order certain 

“discretionary condition[s] of probation,” including a court order 

requiring the defendant to pay restitution to victim(s) of the offense. 

See id. (cross-referencing conditions listed in 18 U.S.C. 
16

sentencing memorandum freely admitted that its restitution 

calculation was “derived from convicted and uncharged 

relevant conduct.” J.A. 36 (emphasis added). Even so, the 

court ordered Udo to pay $262,966 in restitution. This total

encompassed not just the loss resulting from the twenty-five 

false returns Udo was convicted of helping prepare, but also 

the losses generated from more than a dozen other returns that

Udo was not convicted of helping prepare. The government 

concedes this was in error. The court exceeded its remedial 

authority by ordering Udo to pay restitution for uncharged 

conduct. The loss resulting only from the false returns that led 

to Udo’s convictions totaled just $74,047.

Udo also alleges that the court failed to credit a payment 

made by one of his clients that should offset his total and 

requests that, on remand, the government provide a full 

explanation of how it calculated the figures it provided to the 

district court. At oral argument, the government expressed a 

willingness to provide that information on remand, along with 

any information about updated payments from Udo’s clients.

We agree with the parties that there was an error and that it 

was plain. Consistent with two of our sister circuits,6 we hold

that ordering a defendant to pay more in restitution than the 

amount resulting from the loss he caused both affects his 

substantial rights and “seriously affect[s] the fairness” of the 

proceedings. Olano, 507 U.S. at 732. Because the district court 

plainly erred in calculating Udo’s restitution order, and in light 

of the government’s concession, we vacate the order and 

remand for the court to reconsider that aspect of his sentence.

 

§ 3563(b)(2)); id. § 3563(b) (allowing the court to require restitution 

as a condition of probation under 18 U.S.C. § 3556).

6 See United States v. Davis, 714 F.3d 809, 816 (4th Cir. 2013); 

United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007). 
17

V 

For the foregoing reasons, we affirm Udo’s conviction. 

We vacate the district court’s restitution order and remand the 

case for the court to reconsider the restitution order in a manner 

consistent with this opinion.