In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4191

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SCOTT P. LOWELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99-CR-40018-GPM--G. Patrick Murphy, Chief Judge.

Submitted December 11, 2000/1--Decided June 20, 2001

 Before MANION, DIANE P. WOOD, and EVANS,

Circuit Judges.

 EVANS, Circuit Judge. A little over a

year ago, while resolving the first

appeal in this case, we summarized the

situation in the first paragraph of an

unpublished order that said:

After founding CD Masters, a computer

company that began to do very well, very

soon, 19-year-old Scott Lowell looked

like he might well be following in Bill

Gates’ footsteps. A mere 6 years later,

however, Lowell strayed far off the howto-be-a-billionaire path--CD Masters went

belly-up, Lowell falsified the company’s

bankruptcy petition, got caught, got

charged with a federal crime, pled

guilty, and was sentenced to serve 18

months in jail and pay a $2,500 fine. He

was also ordered to pay $130,000 in

restitution. Now the only thing Lowell

and Gates share is a fervent belief that

they have been wronged by federal

district court judges.

 Our order, issued on April 28, 2000,

went on to reject all, save one, of

Lowell’s arguments. Although we found no

abuse of discretion by the district court

in ordering Lowell to pay $90,000 in

restitution (a direct loss to the

bankruptcy estate), we thought the

additional restitution ordered--$40,000

intended to compensate the trustee for
her additional, unnecessary labor--needed

a few more turns on the lathe. We

remanded the case to the district court

to "decide what, if any, restitution

beyond $90,000 should be ordered." So our

remand was, to use an appropriate

adjective, limited.

 When the case returned to the district

court, additional testimony from the

trustee was offered and the court found

the trustee to be one of Lowell’s

victims, and so Lowell was ordered to pay

$25,906.25 in restitution to her. Now

Lowell appeals again, raising a number of

issues that are far beyond our limited

remand and deserve little comment. For

instance, Lowell argues that restitution

is precluded because it violates the rule

announced in Apprendi v. New Jersey, 530

U.S. 466 (2000), as the information to

which he pled guilty did not contain

allegations regarding the applicability

or amount of restitution sought by the

government. We will not consider this and

similar arguments because they are

outside the scope of our remand, but that

causes no particular harm to Lowell as

the contention is without merit in the

first place. See United States v.

Behrman, 235 F.3d 1049, 1054 (7th Cir.

2000). Similarly, Lowell’s argument that

a violation of 18 U.S.C. sec. 152(3)--his

offense of conviction--is not one to

which the Mandatory Victim’s Restitution

Act applies is waived both because he did

not raise the issue in the district court

during his original sentencing or before

us during his first appeal and because it

is an issue that is beyond the scope of

our limited remand. And again, were we

inclined to consider this argument on its

merits, it would fail, as the MVRA, we

think, clearly applies.

 So we turn to Lowell’s last-ditch

argument that a trustee is not a proper

"victim" under the MVRA. It is true that

at the original sentencing hearing,

neither the government nor the trustee

requested restitution for the trustee. It

was ordered, sua sponte, by the district

judge after he heard evidence of the

tremendous amount of unnecessary effort

expended by the trustee as a result of

Lowell’s attempt to cover up his crime.

That this was an appropriate concern,

ironically, was acknowledged by Lowell’s

counsel at sentencing, when he said:
As to the amount of loss, I think the

only thing that is directly attributable

would be the additional time of the

trustee that she had to devote to this.

And I will say that the time of the

trustee is a loss that should be

considered. The time of the trustee--and

the extra time, not the time that she

would have devoted otherwise . . . .

 The issues presented now are whether the

trustee in this case is a proper "victim"

within the meaning of the MVRA and, if

so, what is the proper measure of her

damages. The trustee is a victim if she

is a "person directly and proximately

harmed as the result of the commission of

an offense for which restitution may be

ordered . . . ." 18 U.S.C. sec.

3663A(a)(2). The plain language of this

statute suggests to us that the trustee

was indeed a victim of Lowell’s

fraudulent statements on CDM’s bankruptcy

petition which, again, he admitted were

made to conceal assets. The bankruptcy

code provides for the employment of

private attorneys as bankruptcy trustees

in all districts and empowers them to

administer bankruptcy cases filed in

those districts. See 11 U.S.C. sec. 321

et seq. The trustee in our case, a

private attorney, was a chapter 7 "panel

bankruptcy trustee" called into service

by the United States Trustee’s Office. In

addition to her duties as a panel

trustee, she retains her private

bankruptcy practice. For this reason, a

panel trustee is in a far different

position than are direct, full-time,

government employees. Lowell’s argument,

which attempts to analogize the trustee

here to governmental employees (like an

IRS auditor or a governmental

investigator) who are not entitled to

restitution for performing their duties,

misses the mark. Moreover, Lowell’s

analogy also fails for the reason

identified by Judge Murphy in the

district court at the resentencing

hearing:

that [the government has] investigating

agents and prosecuting attorneys implies

that there is wrongdoing criminal conduct

in the first place and that’s the reason

they’re there. The bankruptcy scheme, on

the other hand, doesn’t suggest that

there is wrongdoing or criminal conduct.

Rather, it is expected that everyone will

conduct themselves straightforwardly and
honestly and testify truthfully and debts

will be discharged and creditors will be

paid and security interest will be

recognized and commerce will go on. . . .

So, I see, I mean, I don’t think your

analogy holds.

 Bankruptcy panel trustees are, of

course, compensated for their services.

In addition to a $60 fee paid to the

trustee by the government for every

bankruptcy case she closes, a panel

trustee’s compensation in a given case is

based upon a percentage of the value of

the assets liquidated and disbursed to

the estate’s creditors. It is obvious,

therefore, that when Lowell fraudulently

misstated the extent of CDM’s assets in

the admitted effort to conceal them from

the trustee, he "directly and proximately

harmed" the trustee herself, as the fraud

prevented her from easily identifying,

seizing, liquidating, and dispersing the

concealed assets. This, of course,

reduced her compensation and increased

her costs.

 The Court of Appeals for the First

Circuit has specifically recognized that

the payment structure we just described,

and the effect concealment of estate

assets has on her compensation, renders a

chapter 7 trustee a "victim" of

violations of sec. 152(1) and (3) for

purposes of applying the "multiple

victim" enhancement of sec. 2F1.1 of the

sentencing guidelines. In United States

v. Shadduck, 112 F.3d 523, 531 (1st Cir.

1997), the court observed:

[A]s the representative of the debtor

estate, see Bankruptcy Code sec. 323(a),

11 U.S.C. sec. 323(a), it is incumbent

upon the trustee to collect and reduce to

money all nonexempt assets of the estate,

id. sec. 704(1). Accordingly, although

the trustee has no pre-petition claim to

property of the debtor and therefore does

not qualify as a "creditor," a prescribed

portion of the net recoveries from any

"property of the estate" administered by

the trustee comprises a priority cost of

administration as provided in [the

chapter 7 trustee compensation provisions

of the] Bankruptcy Code sec.sec. 326(a),

330(a)(1), 503(b)(1)(A) & 507(a)(1).

Consequently, not only creditors but the

chapter 7 trustee as well may be

victimized directly by a bankruptcy fraud

to the extent it deprives the estate of
assets otherwise subject to

administration.

Id. at 531. Recognizing that the case is

relevant only by analogy, we nevertheless

conclude that the direct and proximate

harm described by the First Circuit,

which renders the chapter 7 trustee a

victim, applies with equal vigor to this

trustee.

 Finally, upon reviewing the record, we

determine that Judge Murphy did not abuse

his discretion when, on remand, he

settled on $25,906.25 as the amount of

restitution due to the trustee. The

evidence disclosed that the trustee was

required to spend approximately 207

unnecessary hours in this case as a

direct result of Lowell’s fraudulent

statements on the bankruptcy petition and

schedules. Also, the fact that the

trustee receives $125 per hour for outof-court work and $150 per hour for incourt work in her private practice is

uncontradicted. Thus, the sum settled on

as restitution, $25,906.25 (207.252 hours

X $125 per hour), must stand.

AFFIRMED.

FOOTNOTES

/1 After an examination of the briefs and the

record, we have concluded that oral argument is

unnecessary, and the appeal is submitted on the

briefs and the record. See Fed. R. App. P. 34(a);

Cir. R. 34(f).