# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued December 9, 2014 Decided July 24, 2015

No. 12

- 3092

U NITED S TATES OF A MERICA
, A PPELLEE

v.

E NYINNAYA E. U DO
, A PPELLANT

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: H ENDERSON
, T ATEL
, and G RIFFITH , Circuit Judges.

Opinion for the Court filed by Circuit Judge G RIFFITH

.

G RIFFITH
, Circuit Judge :

A jury convicted E n yin n aya Udo of twenty

- five counts of aiding or assisting in the filing of a false tax re turn . He appeals those convictions, alleging that the court im properly 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 conditi on 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 w as 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 t he IRS noticed that

returns he prepared frequently c laimed thousands of dollars in
unreimburse d employee expenses. An e mployee 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 t ax payer can lower her tax liability or increase he r tax refund by claiming deductions
for such expenses on her tax return. See generally Internal Revenue Service, Miscellaneous Deductions , Department of3

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 th at 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 the se returns

, the I RS conduct ed a sting operation t argeting Udo in 2008 . An underco ver agent posed as

a walk

- in client and asked for Udo’s help preparing a fake tax return while she surreptiti ously videotaped the consultation

. After an initial calculation showed that the “client” owe d taxes,
Udo prepare d a return claiming $14,684 in unre imbursed employee expenses without the agent suggesting that she had
incurred th em

. 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 o f her tax refund

. A grand jury later indicted Udo on twenty

- f ive counts of violating I.R.C. § 7206(2), which makes it a felony to “[w]illfully” he lp 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 had4

told him about the ir 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 professi onal 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, t he g overnment argued that, at the very least, Federal Ru le of Evidence 608(b) permitted question ing Udo about his character for
truthfulness. 1 Skeptical of Udo’s request

, the court stated that
i t would be “very, very, very surprised ” if counsel was correc t. 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 F ED

. R.
E VID

. 608(b).

2 Udo does not appeal the court’s determina tion 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 as sailed 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 fraudu lent

. The

court refused that request

. The court also instructed the jury on tax principles drawn from t itles in the Code of Federal Regulations governing the T reasury 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 sentencin g memorandum claimed that Udo owed $311,791 in restitution. An IRS

revenue a gent 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

ou tstanding tax liabilities, the g overnment req uested 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 fa iling to i nstruct the jury that I.R.C. § 7206(2) requires the g overnment to prove beyond a reasonable doubt that he knew that the income tax

return s in question w ere materially false. The government contends we must review the instruction for plain error because Udo made no objection to it at trial. Cf. F ED

. R. C RIM

. P . 52(b) (permitting only plain error review for issues “not brought to6

the court’s attention” below). Udo insists that h e objected to
the instruction before trial

, preserving the question for our de
novo review. Se e United States v. Stadd , 636 F.3d 630, 639

- 40 (D.C. Cir. 2011). But w e need not resolve this dispute

. Udo’s challenge fails under either standard

.

I.R.C. § 720 6(2) criminalizes “willfully aid[ing] or assist[ing ]” in the filing of a false or fraud ulent tax return. T he 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 20 1 (internal quotation marks omitted) . Udo maintains that he could not have voluntarily and intentionally aided or assisted in the filing of a
false or fraudu lent tax return without knowing that the return s

were in fact fa lse or fraudulent. 3 H e argues his conviction
should be set aside because the instruction on the elements of
the offense did not require the g overnment 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 i nstructions 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) ; Patt ern 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 as sumed, 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 , 73 9 F.2d 331, 335 (8th Cir. 1984); United States v.
Jackson , 65 F. A pp’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 rev iew 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. Unite d
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) , b ut he overlooks other instructions tha t “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 i n 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)

. T his 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 Ud o 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 “substantial ly 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 rend ered his assistance constitutionally ineffective. First, c ounsel promise d 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 fai ling 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 un necessary, 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 th e 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. 66 8 (1984). A defendant must show not only “that [his] counsel's perf ormance was deficient” but also “that the deficient performance prejudiced the defense.” Id. at 687

. “Prejudice” means a “reasonable pro bability 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. , Unite d States v.
Williams , 488 F.3d 1004, 1010 (D.C. Cir. 2007). We do so here.9

We consider e ach of Udo’s arguments that his trial counsel
was ineffective while keeping in mind that t he 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
witnesse s swore that they never told him that they incurred the expenses on the ir 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 cast s 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

s everal of our sister circuits finding ineffectiveness when a defense attorney mistakenly promised that a wi tness would testify

. See McAleese v. Mazurkiewicz , 1 F.3d 159, 166 (3 d Cir. 1993); Ouber v. Guarino , 293 F.3d 19, 2 7 (1st Cir. 2002); United States ex rel. Hampton v. Leibach , 347 F .3d 219,
258

- 59 (7th Cir. 2003) ; Saesee v. McD onald , 725 F.3 d 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, none10

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 n ow, 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 dete rmine 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.” St rickland , 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 video tape 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 ju ry that Udo would testify.

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

pause. For one, the Third an d Ninth Circuits said only in dicta
that the alleged unfulfilled promise s in those cases would trigger a claim for ineffectiveness. B oth courts eventually
concluded that no such promises were even made

. See Saesee

, 725 F.3d at 1050; McAleese , 1 F.3d at 1 67. 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 s upported a guilty verdict

. See Hampton

, 347 F.3d at 23 7 ( noting that the district court found the prosecutio n’s case “far from unassailable”); Ouber , 293 F.3d at11

33 (calling the case “excee dingly close”). T his 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 acc urate and that IRS regulations required him to “make appropriate inquiries” into the facts

s upporting 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 r eading 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 p repare tax returns for others. We cannot see how these instructions might have confused the jury. In fact, t he 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] remin d[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 (A ug. 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
br eached professional standards. After all, he would not have

su ffered any prejudice if the jury convicted him of the crimes he was accused of committing. T o 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 specu lative to raise a reasonable probability of a different outcome.

Udo raises a nother concern with the court’s explanation
about the duties of tax preparers. B y a greeing to this instruction, Udo argues, his trial counsel relieved the government of its burd en 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 ta x 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

. T he g overnment always bears the burden of proving all13

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

g overnment calls this a mere s lip

- up during closing a rgument. More importantly, the g overnment argues, was the court’s instruction to the jury:

E very 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

, ” i d

. 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,” i d . at 23;

“ the prosecution must prove that the defendant knew the
deductions and credits were false or fraud u lent beyond a
reasonable doubt

, ” i d

. at 27.

We agree with the government that these instructions clarified any confusion the prosecutor’s misstatement may
have caused . T his 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

. T he court’s instru ctions were crystal c lear : T he g overnment 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 prejudice14

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 orde r below, but for purposes of Udo’s
ineffectiveness argument we poi nt 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

. O nly sentencing remained

.

Finally, Udo argues that the cumulative effect of his
counsel’s errors merit s reversal of his conviction. Again, w e 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 th em in the aggregate that changes the strength of the government’s case. W e 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 F ED

. R.
C RIM

. 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). T he15

g overnment concedes that the court plainly erred in calculating the restitution order, and we agree.

Restitution is exc lusively a creature of statute, s ee 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 off enses 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 offens e 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, invok ing the autho rity of 18 U.S.C. § 3583(d). 5 The g overnment’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 free ly 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 loss es generated from more than a dozen other returns that Udo was not convicted of helping prepare . The g overnme nt concedes this was in error. The court exceeded its remedia l authority by ordering Udo to pay restitution for uncharged
conduct. T he 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 g overnment provide a full explanation of how it calculated the figures it provided to the
district court

. At oral argument, the g overnment expressed a willingness to provide that information o n remand, along with any information about updat ed 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
substanti al rights and “seriously affect[s] the fairness” of the proceedings. Olano , 507 U.S. at 732. Because the district court plainl y erred in calculating Udo’s restitution order, and in light
of the g overnment’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 di strict court’s restitution order and remand the
case for the court to reconsider the restitution order in a manner consistent with this opinion.