Fennell Oral Argument Request

Case: 18-1969 Document: 27 Filed: 01/16/2019 Pages: 20
No. 18-1969
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
vs.
FRANKLIN FENNELL,
Defendant-Appellant.
Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division
Case No. 2:16-cr-00028
Jane Magnus-Stinson, Judge
REPLY BRIEF OF
DEFENDANT-APPELLANT, FRANKLIN FENNELL
FEDERAL PUBLIC DEFENDER THOMAS W. PATTON

CENTRAL DISTRICT OF ILLINOIS Federal Public Defender
600 E. Adams Street, 3rd Floor
Springfield, Illinois 62701 DANIEL J. HILLIS
Telephone: (217) 492-5070 Assistant Federal Public Defender
Fax: (217) 492-5077
Email: dan_hillis@fd.org
Attorneys for Defendant-Appellant,

FRANKLIN FENNELL
ORAL ARGUMENT REQUESTED

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 18-1969

Short Caption: United States v. Fennell
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-
governmental party or amicus curiae, or a private attorney representing a government party, must furnish
a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R.
App. P. 26.1
The Court prefers that the disclosure statement be filed immediately following docketing; but, the
disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response,
petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended
statement to reflect any material changes in the required information. The text of the statement must also
be included in front of the table of contents of the party’s main brief. Counsel is required to complete
the entire statement and to use N/A for any information that is not applicable if this form is used.
☐PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR

REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you
must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing
item #3):
Franklin Fennell
(2) The names of all law firms whose partners or associates have appeared for the party in the case
(including proceedings in the district court or before an administrative agency) or are expected to
appear for the party in this court:
Thomas W. Patton and Daniel J. Hillis of the Federal Public Defender’s Office for the Central
District of Illinois; and Charles C. Hayes.
(3) If the party or amicus is a corporation: N/A
i) Identify all its parent corporations, if any; and

N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
N/A
===========================================================================
Attorney’s Signature: s/ Daniel J. Hillis Date: January 16, 2019
Attorney’s Printed Name: Daniel J. Hillis
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ☒ No ☐
Address: Federal Public Defender’s Office for the C.D.Ill.
Springfield, Illinois 62701
Phone Number: (217) 492-5070
Fax Number: (217) 492-5077
E-Mail Address: dan_hillis@fd.org
ii
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ............................................................................................iv
ISSUE PRESENTED FOR REVIEW ................................................................................ 1
I. Did the district court err by ordering restitution based on Mr.

Fennell’s intended loss instead of the actual loss? ........................... 1
ARGUMENT ..................................................................................................................... 2
I. The district court erred by ordering restitution based on Mr.

Fennell’s intended loss instead of the actual loss............................. 2
A. The Government wrongly asserts that plain error

review applies ............................................................................ 2
B. When ordering the $110,600 restitution payment, the

judge did not comply 18 U.S.C. § 3664(a)’s requirement
that a PSR “shall” include information sufficient for a
district court to fashion a restitution order ............................ 4
C. Mr. Fennell’s case warrants relief even under plain error

review ........................................................................................ 10
CONCLUSION ................................................................................................................ 13
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(C) ................. 14
iii
TABLE OF AUTHORITIES
PAGE
Cases
Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437 (7th Cir. 1994) (en banc) .... 3
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) ................................................ 8
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ............................................. 10
Rubin v. United States, 449 U.S. 424, 66 L.Ed.2d 633 (1981) ......................................... 8
United States v. Bartlett, 567 F.3d 901 (7th Cir. 2009) ............................................ 2, 3, 4
United States v. Hassebrock, 663 F.3d 906 (7th Cir. 2011) .............................................. 7
United States v. Menza, 137 F.3d 533 (7th Cir. 1998) ..................................................... 9
United States v. Minneman, 143 F.3d 274 (7th Cir. 1998) .......................................... 7, 8
United States v. Rhodes, 330 F.3d 949 (7th Cir. 2003) ..................................................... 4
United States v. Seignious, 757 F.3d 155 (4th Cir. 2014)..................................... 3, 10, 11
Statutes
18 U.S.C. § 3663A .......................................................................................................... 3, 9
18 U.S.C. § 3664 ......................................................................................................... 11, 12
18 U.S.C. § 3664(a) ................................................................................................... passim
18 U.S.C. § 3664(a)-(d) ................................................................................................ 3, 11
Other Authorities
Fed. R. Crim. P. 51(a) ........................................................................................................ 2
U.S. Const., amend. V..................................................................................................... 12
iv
ISSUE PRESENTED FOR REVIEW
I. Did the district court err by ordering restitution based on Mr. Fennell’s
intended loss instead of the actual loss?
1
ARGUMENT
I. The district court erred by ordering restitution based on Mr. Fennell’s

intended loss instead of the actual loss.
A. The Government wrongly asserts that plain error review applies
The Government asserts plain error applies “[b]ecause [Mr. Fennell]
lodged no objection below to the district court’s compliance with procedures for
determining restitution”. (Gov’t Br. at 12). The Government cites no Seventh
Circuit case to support its assertion. Id. Perhaps that’s because the Government
can’t. The Seventh Circuit does not require a defendant to take exception to a
judge’s erroneous ruling. See Fed. R. Crim. P. 51(a) (“Exceptions to rulings or
orders of the court are unnecessary.”); see also United States v. Bartlett, 567 F.3d
901, 910 (7th Cir. 2009) (“[A] litigant [need not] complain about a judicial choice
after it has been made.”).
Here, it was only during pronouncement of sentence that the judge
incorrectly said she was imposing restitution based on intended loss. Mr. Fennell
did not have to take exception to the judge’s misstatement or her failure to
provide a valid restitution determination prior to sentencing. See Bartlett, 567
F.3d at 910. Once the judge erred by imposing a restitution for intended loss and
relying on Government Exhibit 37-2 rather than a PSR or some other report that
satisfied 18 U.S.C. § 3664(a), Mr. Fennel did not have to do anything else as a
prerequisite to arguing the errors on appeal.
2
As for the Government’s reliance on the Fourth Circuit’s opinion in United
States v. Seignious, 757 F.3d 155, 160 (4th Cir. 2014), it’s a curious case to cite. In
Seignous, a district court conducted five evidentiary hearings over the course of
two months before determining the restitution amount. Id. at 157. The defendant
never contested whether the determination satisfied 18 U.S.C. § 3664(a)-(d);
rather, the Fourth Circuit raised the issue sua sponte after reviewing defense
counsel’s Anders brief and decide it under a plain error standard because the
defendant never objected during any of the five evidentiary hearings. Id. at 160.
Distinct from Seignious, Mr. Fennell had no evidentiary hearing as to what
restitution he owed under 18 U.S.C. § 3663A. As extra-circuit precedent, Seignious
is not controlling. See Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 443
(7th Cir. 1994) (en banc) (“[W]hile we carefully consider the opinions of our sister
circuits, we certainly do not defer to them.”), aff'd on other grounds, 516 U.S. 152,
(1996). Moreover, the wildly different facts in Seignious make it inapposite and
strongly caution against Seignious from being considered as persuasive authority.
Also, the Government faults Mr. Fennell for having not “chimed in” to
alert the judge of any error so that the judge could have “cleared up any
confusion”. (Gov’t Br. at 12). Blaming Mr. Fennell is neither warranted nor
productive. Defendants are not required to take exception to a judge’s errant
ruling. Bartlett, 567 F.3d at 910. A judge can require a defendant to pay restitution
3
for actual loss, not intended loss. See United States v. Rhodes, 330 F.3d 949, 953 (7th
Cir. 2003) (the MVRA “implicitly requires that the restitution award be based on
the amount of loss actually caused by the defendant’s offense”). It is undebatable
that the judge incorrectly ordered Mr. Fennell to pay $110,600 in restitution for
the “intended loss”. (App. 9). Mr. Fennell was not required to take exception.
Bartlett, 567 F.3d at 910.
If blame must be assigned, the Government should start by looking in its
own house. The U.S. Attorney’s Office had a highly-trained prosecutor at the
sentencing hearing. If the judge misspoke by saying “intended loss”, why didn’t
the prosecutor say anything? If the Government wishes to avoid appeals, it
should ensure that its lawyers are attentive and doing what is necessary to
protect against errors. Sitting mutely at sentencing and complaining on appeal
how a defendant should have responded is a bad route.
B. When ordering the $110,600 restitution payment, the judge did not
comply 18 U.S.C. § 3664(a)’s requirement that a PSR “shall” include
information sufficient for a district court to fashion a restitution order
The Government says that Mr. Fennell’s claim that the judge imposed
restitution for intended loss “fails on the facts”. (Gov’t Br. at 13). The first
problem for the Government is that the judge incontrovertibly said the $110,600
restitution order was based on “intended loss”. (App. 9). Indeed, the
Government acknowledges the judge said intended loss. (Gov’t Br. at 14).
4
Unable to get around that fact, the Government tries to explain away the
erroneous decision to base restitution on “intended loss” as a “simple slip of the
tongue”. (Gov’t Br. at 14). That tact should work no better than if Mr. Fennell
were to claim the jury foreperson simply misspoke when saying “guilty” rather
than “not guilty”. Or suppose Mr. Fennel claimed the judge meant to say 12
months’ imprisonment rather than the 24 months he’s serving. That claim should
go nowhere when the transcript clearly shows what the judge said. Thus, the
Government should fail on its claim the judge misspoke.
The next problem for the Government is that the entirety of its argument
gives too little attention to 18 U.S.C. § 3664(a). That provision states:
For orders of restitution under this title, the court shall order the
probation officer to obtain and include in its presentence report, or
in a separate report, as the court may direct, information sufficient
for the court to exercise its discretion in fashioning a restitution
order. The report shall include, to the extent practicable, a complete
accounting of the losses to each victim, any restitution owed
pursuant to a plea agreement, and information relating to the
economic circumstances of each defendant.
Id.
Though the Government is quick to mention that Mr. Fennell had a
jury trial, the Government strikes a sour note when it tries use the
existence of a jury trial as exception from § 3664(a)’s requirements for a
valid restitution order. (Gov’t Br. at 15). The Government may wish
otherwise, but the statute contains no such thing.

5
Even in the highly unlikely event a sentencing judge could make a down-
to-the-dollar restitution decision based on evidence 1 the judge recalled from a
months-earlier trial, § 3664(a) requires a sufficiently supported report as a
prerequisite to exercising discretion. Absent such a report, a restitution order
violates § 3664(a) and cannot be a valid exercise of discretion. And while the
Government’s brief claims the PSR “noted” a “comprehensive presentation of
loss amounts and a detailed forensic analysis of those losses”, the Government
fails to identify where the PSR did so. (Gov’t Br. at 15). At best, the Government
has an overly generous view of the PSR’s contents since the PSR for the most part
contains little information for the $110,600 loss figure. (PSR at ¶¶ 22, 84) (stating
loss without listing transaction amounts, documentary proof, testimony, etc.).
However, the judge never ordered any financial information to be
included in the PSR (or a separate report) for her to exercise her restitution
discretion. It wasn’t something the judge could validly leave out given that
Congress says the information “shall” be included. Id. As for what information
the PSR did contain, it only had passing references to a $110,600 restitution
1 Really, the Government’s brief proves too much. The presentation of the evidence
covers almost 100 transcript pages and recites dozens of transactions. (Gov’t Br. at 15,
citing R. 145, a 3-98). That presentation occurred on December 13, 2017, and the
sentencing occurred on April 19, 2018. (R.145 & 153). Who could possibly remember all
that the Government credits the judge here with remembering?
6
amount. (PSR at ¶¶ 22, 84). That falls well short of the “complete accounting” §
3664(a) requires.
Next, the Government takes issue with the statement in Mr. Fennell’s
opening brief where he said this Court’s view is that district courts should
“’articulate detailed findings of fact in support of their restitution awards’”. (Op.
Br. at 11, citing United States v. Minneman, 143 F.3d 274, 284 (7th Cir. 1998). The
Government makes much of how the brief misquotes Minneman. But the quote is
hardly a misstatement of Seventh Circuit law. It is verbatim from United States v.
Hassebrock, 663 F.3d 906, 925 (7th Cir. 2011) (citing Minneman, 143 F.3d at 285), a
case Mr. Fennell discusses but the Government chooses not to. (Op. Br. at 9).
Although Mr. Fennel apologizes for misattributing the quoted language,
he is puzzled by the balance of the Government’s argument. The Government
mistakenly thinks Mr. Fennel is arguing that Minneman “dictate[s] specific steps
district courts must always take in determining loss. (Gov’t Br. at 17). While Mr.
Fennell has cited Minneman, his argument is primarily based on § 3664(a)’s plain
text. (Op. Br. at 12, citing Minneman, 143 F.3d at 284; § 3664(a)). The Supreme
Court has repeatedly said “that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there. . . .When the
words of a statute are unambiguous, then, this first canon is also the last: ‘judicial
inquiry is complete.’” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54
7
(1992) (internal citations omitted, quoting Rubin v. United States, 449 U.S. 424, 430,
101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981)). And § 3664(a) states that a district the
court “shall order the probation officer to obtain and include in its presentence
report . . . information sufficient for the court to exercise its discretion in
fashioning a restitution order.” Moreover, the PSR “shall include, to the extent
practicable, a complete accounting of the losses to each victim”. Id.
The Government effectively shrugs off § 3664(a)’s language and claims,
“[t]he real review standard is not about what probation prepares but whether the
district court has enough information in the record to make a proper
determination”. (Gov’t Br. at 17) (emphasis added). Even if one could indulge the
Government’s attempt to escape from the controlling statutory text and go with a
‘spirit of the law’ initiative, it would be to no avail. That’s because the PSR has
almost no information to support the judge’s $110,600 restitution determination.
It tallies only $9,500 of transactions before concluding there’s a $110,600 loss.
(PSR ¶¶ 14-22). The PSR’s lack of detail, its lack of documentary evidence, its
lack of testimonial support are all problems that require remand. See Minneman,
143 F.3d at 285 (“[I]f a district court does not provide detailed findings, it runs
the risk that [the appellate court] may remand a restitution award based on
‘inadequate explanation and insufficient reasoning.’”) (quoting United States v.
Menza, 137 F.3d 533, 538 (7th Cir. 1998)).
8
Another oddity in the Government’s brief is its assertion that Mr. Fennell
“seems to see probation’s job as separate from the district court’s” under §
3664(a)’s requirement that probation provide an accounting. (Gov’t Br. at 18). But
Mr. Fennell sees the PSR for what § 3664(a) says it must be whenever restitution
is at issue: a document containing “information sufficient for the court to exercise
its discretion in fashioning a restitution order”. Id. The Government cannot show
the PSR contains what’s statutorily necessary, so it argues that sufficient
information exists via “the presentence report and the entire record of the trial,
including a detailed analysis summarized in Exhibit 37-2.” (Gov’t Br. at 18). The
argument would be compelling if § 3664(a) said judges could rely on the entire
trial record. Because the statute doesn’t, the Government’s argument fails.
As for the claimed “detailed analysis” captured in Exhibit 37-2 (Gov’t Br.
at 18), it’s just a spreadsheet the Government prepared. A party’s spreadsheet
that summarizes evidence, like any testimony about it, is inadequate to establish
actual loss under § 3664(a). Adequate proof for purposes of § 3664(a) would be,
for instance, record evidence of cancelled checks totaling $110,600 and proof that
Mr. Fennell rendered no services equal to that value. And it is to be prepared by
a probation officer; it’s not a document that a party drafts and tenders at
sentencing. The Government should not be allowed to reinvent § 3664(a)’s
9
requirements by pointing to its spreadsheet and doing whatever else to avoid a
remand here.
C. Mr. Fennell’s case warrants relief even under plain error review
The final part of the Government’s brief again concerns the Fourth
Circuit’s Seignious opinion and urges denial of relief based on an alleged lack of
harm. (Gov’t Br. at 19). There are problems with the Government’s analysis.
For relief under the plain error standard, a defendant must show: (1) an
error, (2) that is plain, (3) that affected his substantial rights, and (4) that the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(citations omitted).
As explained above, the judge’s process for determining restitution was
erroneous because the PSR she relied on did not contain “information sufficient
for the court to exercise its discretion in fashioning a restitution order”. See §
3664(a). Despite the Government’s claim that “the district court more than met
the statutory requirements”, the immediately preceding section of this brief
shows that the restitution determination ran afoul of § 3664(a)’s basic
requirements. That means the determination was an error that was plain.
As for the third factor, the Government contends: “we also know what any
detailed analysis of actual loss would reveal here because the record already
10
contains a painstaking analysis of that figure: $110,600”. 2 (Gov’t Br. at 19, citing
Seignious, 757 F.3d at 162 (“[t]he record leaves no doubt that the district court
would have imposed the same amount of restitution . . . regardless of whether
every requirement of § 3664(a)-(d) had been meticulously met in this case.”)).
That contention is little more than the Government saying, “trust us, we did the
looking the judge was supposed to do and we’re right”.
The procedural protections of § 3664 don’t dissipate based on the
Government’s assurance, they resolutely demand a judge determines restitution
based on evidence set forth in a PSR or other report for all to see. There’s good
sense in that. It ensures a defendant has notice of what amount must be paid and
how it was calculated. It also ensures that this Court has a single source to look
to for the restitution determination and isn’t made to sift through trial transcripts
and other materials the district court might never have relied on. At bottom, Mr.
Fennell has a substantial right under § 3664 to have the judge comply with the
statute’s requirements. He also has a constitutional right to Due Process that
likewise requires an adequate procedure for determining any restitution he is
2 For whom was the analysis “painstaking”? Maybe it was for the Government or the
Government witness who created the spreadsheet. The judge tasked with the restitution
determination undertook no independent evaluation; she simply accepted the
spreadsheet the instant the Government offered it at sentencing. (App. 9; 35).
11
forced to pay. See U.S. Const., amend. V. The violation of his statutory and
constitutional protections more than satisfy the third plain error factor.
With respect to the fourth factor, the Government cannot be allowed to
undo the protections and requirements § 3664 by asking the Court to look to
materials beyond the statute’s ambit. And it cannot act as if Mr. Fennell must
offer an alternative loss amount to establish that the restitution process was
unfair, lacking in legal integrity, or apt to diminish public perception of the
judicial process. Absent compliance with statutory and constitutional
protections, the restitution process becomes a judicial rubber-stamping of the
Government’s claimed loss amount. Such is the case here. A district court may
desire speed and efficiency for sentencing, but a defendant and the public are
nevertheless entitled to all the protections that guarantee a fair process that
guard against government overreach and foster the perception that sentencings
are not pro forma events. The defects in this case are sufficient to satisfy the fourth
plain error factor. Consequently, this Court should exercise its discretion and
grant relief.
12
CONCLUSION
WHEREFORE this Court should vacate and remand for resentencing.
Respectfully submitted,
THOMAS W. PATTON
Federal Public Defender
s/ Daniel J. Hillis
DANIEL J. HILLIS
Assistant Federal Public Defender
Attorneys for Defendant-Appellant,

FRANKLIN FENNELL
13
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(C)
The undersigned certifies that this brief complies with the volume
limitations of Federal Rule of Appellate Procedure 32(a)(7)(C) and Circuit Rule
32 in that it contains 2,711 words and 233 lines of text as shown by Microsoft
Word 2010 used in preparing this brief.
s/ Daniel J. Hillis
DANIEL J. HILLIS
Dated: January 16, 2019
14
No. 18-1969
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
UNITED STATES OF AMERICA, Appeal from the United States

District Court for the Southern
Plaintiff-Appellee, District of Indiana, Indianapolis
Division
vs.
Case No. 2:16-cr-00028
FRANKLIN FENNELL,
Hon. Jane Magnus-Stinson,
Defendant-Appellant. United States District Judge
NOTICE OF FILING AND PROOF OF SERVICE
TO: Mr. Gino Agnello, Clerk, United States Court of Appeals, 219 South
Dearborn Street, Chicago, Illinois 60604
Mr. Franklin Fennell, Reg. No. 51079-424, USP Marion, 4500 Prison Road,
Marion, IL 62959
Mr. Bob Wood, U.S. Attorney’s Office, 10 W. Market Street, Suite 2100,
Indianapolis, Indiana 46204
PLEASE TAKE NOTICE that on January 16, 2019, the undersigned
attorney electronically filed the foregoing with the Clerk of Court for the United
States Court of Appeals for the Seventh Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the
CM/ECF system. I further certify that some of the participants in the case are not
CM/ECF users. I have mailed the foregoing documents by First Class Mail,
postage prepaid, or have dispatched it to a third party commercial carrier within
three calendar days, to the non-CM/ECF participants.
s/ Daniel J. Hillis
DANIEL J. HILLIS
Assistant Federal Public Defender
Office of the Federal Public Defender
Springfield, Illinois 62701
Phone: (217) 492-5070

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Case: 18-1969 Document: 27 Filed: 01/16/2019 Pages: 20

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Appeal from the United States District Court

FEDERAL PUBLIC DEFENDER THOMAS W. PATTON

Attorneys for Defendant-Appellant,

ORAL ARGUMENT REQUESTED

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: 18-1969

☐PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR

(3) If the party or amicus is a corporation: N/A

i) Identify all its parent corporations, if any; and

TABLE OF AUTHORITIES ............................................................................................iv

ISSUE PRESENTED FOR REVIEW ................................................................................ 1

I. Did the district court err by ordering restitution based on Mr.

I. The district court erred by ordering restitution based on Mr.

A. The Government wrongly asserts that plain error

B. When ordering the $110,600 restitution payment, the

C. Mr. Fennell’s case warrants relief even under plain error

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(C) ................. 14

ISSUE PRESENTED FOR REVIEW

intended loss instead of the actual loss?

I. The district court erred by ordering restitution based on Mr. Fennell’s

A. The Government wrongly asserts that plain error review applies

The Government asserts plain error applies “[b]ecause [Mr. Fennell]

determining restitution”. (Gov’t Br. at 12). The Government cites no Seventh

judge’s erroneous ruling. See Fed. R. Crim. P. 51(a) (“Exceptions to rulings or

after it has been made.”).

Here, it was only during pronouncement of sentence that the judge

provide a valid restitution determination prior to sentencing. See Bartlett, 567

prerequisite to arguing the errors on appeal.

As for the Government’s reliance on the Fourth Circuit’s opinion in United

never contested whether the determination satisfied 18 U.S.C. § 3664(a)-(d);

Distinct from Seignious, Mr. Fennell had no evidentiary hearing as to what

restitution he owed under 18 U.S.C. § 3663A. As extra-circuit precedent, Seignious

strongly caution against Seignious from being considered as persuasive authority.

productive. Defendants are not required to take exception to a judge’s errant

the amount of loss actually caused by the defendant’s offense”). It is undebatable

Bartlett, 567 F.3d at 910.

If blame must be assigned, the Government should start by looking in its

the prosecutor say anything? If the Government wishes to avoid appeals, it

protect against errors. Sitting mutely at sentencing and complaining on appeal

how a defendant should have responded is a bad route.

erroneous decision to base restitution on “intended loss” as a “simple slip of the

Government should fail on its claim the judge misspoke.

gives too little attention to 18 U.S.C. § 3664(a). That provision states:

Though the Government is quick to mention that Mr. Fennell had a

existence of a jury trial as exception from § 3664(a)’s requirements for a

otherwise, but the statute contains no such thing.

to-the-dollar restitution decision based on evidence 1 the judge recalled from a

months-earlier trial, § 3664(a) requires a sufficiently supported report as a

prerequisite to exercising discretion. Absent such a report, a restitution order

Government’s brief claims the PSR “noted” a “comprehensive presentation of

loss without listing transaction amounts, documentary proof, testimony, etc.).

However, the judge never ordered any financial information to be

“’articulate detailed findings of fact in support of their restitution awards’”. (Op.

hardly a misstatement of Seventh Circuit law. It is verbatim from United States v.

Although Mr. Fennel apologizes for misattributing the quoted language,

he is puzzled by the balance of the Government’s argument. The Government

report . . . information sufficient for the court to exercise its discretion in

practicable, a complete accounting of the losses to each victim”. Id.

The Government effectively shrugs off § 3664(a)’s language and claims,

district court has enough information in the record to make a proper

almost no information to support the judge’s $110,600 restitution determination.

It tallies only $9,500 of transactions before concluding there’s a $110,600 loss.

‘inadequate explanation and insufficient reasoning.’”) (quoting United States v.

Menza, 137 F.3d 533, 538 (7th Cir. 1998)).