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Date: 11-15-2021
Case Style:
United States of America v. Dameion Wyatt
Case Number: 20-2382
Judge: Thomas Kirsch
Court: United States Court of Appeals
For the Seventh Circuit
On appeal from The United States District Court for the
Eastern District of Wisconsin
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL- Criminal defense lawyer represented defendant with a \one count of inter‐ state sex trafficking charge.
Wyatt raises four primary challenges to the district court’s
restitution process and ultimate restitution award. Resolving
these challenges involves addressing the muddled, winding
procedural and substantive road that has led here. Because
the relevance of certain facts is bound up closely with the ap‐
plicable restitution statutes, we include, in our discussion of
1 Wyatt appealed his term of imprisonment while restitution was still
pending in the district court, and we affirmed in United States v. Wyatt, 982
F.3d 1028 (7th Cir. 2020). See United States v. Collins, 949 F.3d 1049, 1055
(7th Cir. 2020) (discussing the process of appealing while the district
court’s restitution decision is deferred).
No. 20‐2382 3
those facts, some of the relevant statutory provisions, which
are dealt with in greater depth later in this opinion.
On July 2, 2019, Wyatt pleaded guilty to one count of in‐
terstate sex trafficking in violation of 18 U.S.C. § 1594(c). Un‐
der 18 U.S.C. § 1593, Wyatt was subject to mandatory restitu‐
tion to the victims for the full amount of their losses. On Sep‐
tember 17, 2019, the government provided the probation of‐
ficer a recommendation for restitution on behalf of three of
the victims, which included Wyatt’s initial objections to those
recommendations. The government submitted a revised re‐
quest on September 26, 2019, and Wyatt submitted additional
objections on September 30, 2019. The probation officer sub‐
mitted these figures and objections to the district court in a
Presentence Investigation Report Addendum (the “Adden‐
dum”) filed October 3, 2019. On that same day, probation also
filed a Revised Presentence Investigation Report (the “PSR”).
The Addendum stated the government initially recom‐
mended $202,000 in restitution for the three victims ($36,000
for AV‐1, $91,000 for AV‐3, and $75,000 for AV‐5). The Adden‐
dum also reflected that on September 30, 2019, the govern‐
ment revised its numbers to $11,000 for AV‐1, $71,600 for AV‐
3, and $89,700 for AV‐5, for a total of $172,300. This reduction
was the result of negotiations between the government and
Wyatt’s counsel, though some factual disputes remained as to
the properrestitution figures, as the parties disputed the dates
each victim worked for Wyatt and the estimated number of
commercial sexual transactions that each engaged in for Wy‐
att’s financial benefit.
After reciting each side’s position in the Addendum, the
Probation Officer wrote:
4 No. 20‐2382
It is the position of the probation officer victims
AV‐1 and AV‐5 would be entitled to restitution
under the Mandatory Victims Restitution Act.2
Given the calculations provided by the govern‐
ment, it is the recommendation of the proba‐
tion officer the Court find the victim’s losses
were not ascertainable by a date ten days prior
to sentencing.3 Under the provisions of 18
U.S.C. § 3664(d)(5), the Court shall set a date for
the final determination of the victims’ losses,
not to exceed 90 days after sentencing.
Despite these figures and statements in the Addendum, the
body of the PSR stated: “Restitution: None.”
The sentencing went forward on November 15, 2019. At
the beginning of the hearing, the district court asked the par‐
ties whether they had any issues with the information con‐
tained in the “numbered paragraphs” of the PSR. Wyatt’s
counsel, Daniel Sanders, stated that he had “no additional in‐
formation … that we haven’t already provided to the Proba‐
tion Department, the Government, and the Court.” The dis‐
trict court then stated:
As for the restitution, since there is no agree‐
ment on the restitution, what the Court is going
to do today consistent with the requirements of
Title 18, Section [3663A] is I’m going to schedule
an outside date for further hearing on
2 The omission of AV‐3 was likely an oversight by the officer, as the pre‐
ceding statements in the Addendum deal with all three relevant victims,
not just AV‐1 and AV‐5. Neither party has suggested otherwise on appeal.
3 Emphasis added.
No. 20‐2382 5
restitution on Friday, February 7th, of next year
at 8:30. I appreciate there are competing inter‐
ests here, but on the basis of what’s in the re‐
vised presentence report and the addenda, the
Court is unable to make a meaningful determi‐
nation without guessing, and guesswork has no
role in restitution determinations.
And, again, given the significant dollar amounts
that are at issue here … the Court has to go
through the labyrinth of making a reasoned de‐
termination, and we’re not there yet.
The district court announced Wyatt’s guideline range was 262
to 327 months’ imprisonment and noted that restitution was
“yet to be determined.” The district court then asked:
Having made those determinations, Mr. Sand‐
ers, do you and your client have any reason to
advance this morning as to why the Court ought
not proceed today with the imposition of sen‐
tence in this case?
MR. SANDERS [Defense counsel]: No, sir.
Later, after Sanders argued for his requested sentence, the dis‐
trict court briefly returned to the restitution issue:
THE COURT: Obviously at some point if there
is a restitution order, there will be provisions
that relate to that including a reasonable
monthly payment requirement.
MR. SANDERS: We understand that, Your
Honor.
6 No. 20‐2382
THE COURT: But today is not the day to ad‐
dress that.
MR. SANDERS: We understand that, Your
Honor.
Following Wyatt’s allocution, the district court reiterated
that it would take the restitution issue under advisement and
would reconvene on February 7, 2020, stating that if the par‐
ties are “unable to agree upon an appropriate restitution
amount,” it may “refer the matter for further fact finding [be‐
fore a] magistrate judge for [an] evidentiary hearing if that [is]
required.” The court referenced § 3664(d)(5) as providing au‐
thority to make the “final determination on restitution …
within 90 days of today’s date,” which it intended to do “un‐
less the parties resolve the matter via agreed restitution order
in the interim.” As discussed, the court ultimately accepted
the below‐guideline joint recommendation of the parties and
sentenced Wyatt to ten years in prison.
Following the sentencing hearing, on December 2, 2019,
Wyatt, through Sanders, filed a notice of appeal. This caused
some electronic docketing issues. Although Sanders was rep‐
resenting Wyatt and intended to continue representing him in
the restitution proceedings still pending before the district
court, Wyatt also sought and was appointed appellate counsel
in his first appeal. This resulted in Sanders being removed
from the district court’s electronic filing notification system,
as he was not appellate counsel, meaning Sanders did not re‐
ceive notices of subsequent filings in the district court. The
parties agree this issue was not Sanders’s fault.
In any event, following Sanders’s removal from the notifi‐
cation system, various filings were entered on the district
No. 20‐2382 7
court’s docket before the February 7, 2020 restitution hearing.
First, on December 5, 2019, Wyatt filed a pro se motion for an
evidentiary hearing related to whether the government had
breached the plea agreement. The government responded,
and Wyatt eventually also filed a reply brief pro se. Wyatt’s
first appeal disposed of this substantive issue.
More relevant here, however, is that the government also
filed a brief in support of its requested restitution on February
4, 2020. That brief was accompanied by an affidavit submitted
by the case agent who had investigated Wyatt, Special Agent
Todd Higgins with the Wisconsin Division of Criminal Inves‐
tigations. A few days before the restitution hearing, Sanders
became aware of the docketing issue. Sanders appeared at the
hearing and advised the district court of the problem. The dis‐
trict court stated that it would recall the case at 1 p.m. in order
to give Sanders time to review the recent filings. The district
court added that “unless you have something very significant,
the Court is prepared, with or without your representing Mr.
Dameion Wyatt, to enter an order of restitution. … This case
has dragged on and on and on and on with no end in sight.
… [Y]our client agreed in the plea agreement that the victims
in this case have protected rights. And the information in the
discovery in Mr. Higgins’ affidavit mirrors everything that
was available to you as Mr. Wyatt’s counsel from day one.”
Sanders disagreed with the district court’s last statement and
said he would address it at 1 p.m.
The case was recalled that afternoon. Sanders stated that
he had reviewed the government’s brief and the agent’s affi‐
davit. He stated that Wyatt still disputed certain figures and
proceeded to argue in detail his objections to the govern‐
ment’s submissions. Sanders stated that his objections were
8 No. 20‐2382
based on discrepancies between the affidavit and the earlier
received reports, grand jury testimony, and the discovery pro‐
duced by the government. In the end, Sanders proposed res‐
titution be set at $49,250: $8,000 for AV‐1, $10,200 for AV‐3,
and $31,050 for AV‐5.
When Sanders concluded, the district court stated that the
government could respond. Shortly after the prosecutor be‐
gan talking, the court interjected that the hearing was “unnec‐
essary” but had come about because the government had
failed to follow the deadlines set out in the relevant restitution
statutes. The district court additionally stated that the govern‐
ment had “bushwhacked” Sanders and the court. The court
then continued, “Does that mean these victims are not entitled
to restitution? Indeed they are, but we’re not going to take val‐
uable court time nickel and diming what Mr. Higgins endeav‐
ored to provide to the Court, and I accept his own findings.”
The district court then stated that “hence forward, if these
matters are not thoroughly vetted and addressed in the
Presentence Report, it’s over. There will be no restitution. It’s
plain and simple.” The district court then stated that it would
take Sanders’s comments under advisement and that if the
government wanted to file a written response it could do so
by the following Friday. Both parties indicated that they dis‐
puted the district court’s characterization of the proceedings,
and Sanders stated that he intended to file a written response
outlining Wyatt’s objections. The hearing then concluded.
On February 13, 2020, Wyatt filed a pro se memorandum
stating that he objected to the restitution figures. The next
day, February 14, Sanders moved to withdraw from the case.
On February 14, the government also filed its supplemental
No. 20‐2382 9
brief in response to the court’s admonition and echoed its ear‐
lier restitution arguments.
Following the February 7 hearing, Wyatt filed five other
documents, pro se, with the court:
A memorandum disputing whether AV‐3 and AV‐5
should be considered victims. This filing also stated
that Sanders was working with the government
against Wyatt’s interests. (Feb. 13, 2020.)
A request to file a substantive response to the govern‐
ment’s restitution request by March 13, 2020. (Feb. 24,
2020.)
A letter requesting that the district court have patience
when it reviews his motion for disclosure of grand jury
materials. (Feb. 24, 2020.)
A motion titled “Motion for Disclosure of Grand Jury
Transcripts for Particularized Reasons” stating that he
could not adequately challenge the government’s affi‐
davit without the grand jury transcripts and request‐
ing the court orderthat he receive them. He also moved
for dismissal of his indictment on the ground that cer‐
tain witnesses had perjured themselves before the
grand jury. (March 6, 2020.)
A substantive response to the government’s restitution
request asserting that certain facts the government re‐
lied on were untrue (including Facebook message
screenshots purporting to show certain days when he
was not with certain victims). Wyatt also argued that
the prosecutor had violated his due process rights by
reading certain victim statements at sentencing and
challenged the victims’ credibility. (March 6, 2020.)
10 No. 20‐2382
None of these filings prompted any immediate action
from the district court. Roughly four months later, on July 22,
2020, the district court entered a detailed order awarding res‐
titution in the amount of $12,750 to AV‐1, $45,200 to AV‐3, and
$37,125 to AV‐5, for a total restitution amount of $95,075. The
district court also granted Sanders’s motion to withdraw.
In its order, the district court held that its failure to meet
the restitution statutes’ deadlines in issuing its restitution or‐
der did not deprive it of jurisdiction, citing Dolan v. United
States, 560 U.S. 605 (2010). The district court wrote that it was
adopting the facts as laid out in the PSR and the Addendum,
except where objections were made or the report lacked suffi‐
cient detail, in which case it relied on the written submissions
and arguments made before and after the restitution hearing.
The district court noted that the government bore the burden
of establishing the restitution amount, per 18 U.S.C. § 3664(e).
The district court then provided a detailed analysis of the rec‐
ord in reaching its conclusions as to the proper restitution fig‐
ures, discussed further below.
II
With this background in mind, we turn to the issues in this
appeal. Wyatt raises four primary arguments: (1) the district
court erred by postponing the restitution determination pur‐
suant to 18 U.S.C. § 3664(d)(5) because, in Wyatt’s view, the
amount of restitution was “ascertainable” at the time of sen‐
tencing; (2) the district court erred by failing to require the
probation officer to provide a “complete accounting” and by
relying on untimely, inaccurate, and unreliable information in
calculating the amount of restitution; (3) the district court
erred by entering the restitution order when Wyatt was essen‐
tially unrepresented; and (4) the district court erred by
No. 20‐2382 11
entering the restitution order outside Wyatt’s presence. Each
argument will be addressed in turn.
A
1
Wyatt first argues that the amount of restitution was “as‐
certainable” at the November 15, 2019 sentencing, and there‐
fore the district court erred by following the procedure for de‐
layed restitution orders outlined in 18 U.S.C. § 3664(d)(5).4
Wyatt then shifts between three arguments to show why the
restitution amount was in fact “ascertainable.” First, Wyatt ar‐
gues that because the PSR listed restitution as “None” and be‐
cause no victim claimed any loss, the figure was ascertainable
as being zero and he owed no restitution. Second, Wyatt ar‐
gues that no restitution should have been ordered because “a
victim who renounces the right to restitution‐‐‐as effectively
happened here once the victims knowingly declined restitu‐
tion (PSR ¶41)‐‐‐ends the court’s ability to award restitution
under the MVRA [Mandatory Victims Restitution Act].”
Third, Wyatt argues that just because the parties disagreed
about the proper amount of restitution does not mean that the
district court could not have made the determination of the
proper restitution amount at sentencing. He adds that the ul‐
timate restitution decision was based on information that had
been available to the government before the sentencing pro‐
ceedings began—witness statements and grand jury
4 Section 3664(d)(5) states, in relevant part, that “[i]f the victim’s losses are
not ascertainable by the date that is 10 days prior to sentencing, the attor‐
ney for the Government or the probation officer shall so inform the court,
and the court shall set a date for the final determination of the victim’s
losses, not to exceed 90 days after sentencing.”
12 No. 20‐2382
transcripts. Because the amount of restitution was ascertaina‐
ble at the time of sentencing, Wyatt continues, the district
court lacked jurisdiction to order restitution through a de‐
layed procedure and no restitution should have been
awarded.
Wyatt did not raise these arguments in the district court.
In fact, his attorney repeatedly expressed satisfaction with the
district court’s handling of the restitution process. Accord‐
ingly, our review is for plain error. Wyatt must show (1) an
error, (2) that the error is plain, (3) that the error affected his
substantial rights, and (4) that the error “seriously affects the
fairness, integrity, or public reputation of judicial proceed‐
ings.” Molina‐Martinez v. United States, 136 S. Ct. 1338, 1343
(2016); see United States v. Morrow, — F. 4th —, 2021 WL
3121375, at *5 (7th Cir. 2021).
Wyatt fails to meet this burden. To begin, we have diffi‐
culty squaring the PSR’s statement listing restitution as
“None” with the in‐depth information in the Addendum
(filed the same day as the PSR) detailing the government’s re‐
quests for restitution and Wyatt’s thorough objections to the
government’s positions. But this inconsistency does not war‐
rant a finding of error. The Addendum, which outlined the
lingering disputes concerning the proper restitution figure,
specifically recommended that the district court find that the
restitution figure was not ascertainable. Moreover, the PSR
noted the MVRA’s application to Wyatt’s offense and the gov‐
ernment’s efforts to gather information to determine the
proper restitution amount. And Wyatt admitted during sen‐
tencing that he had reviewed the Addendum and PSR. Given
the record on this point, it is implausible to think that Wyatt,
his attorney, or anyone in the courtroom understood the
No. 20‐2382 13
statement “None” to represent a final determination of the
amount of restitution owed.
Wyatt’s second argument also falls short of identifying a
plain error. Wyatt identifies nothing in the record to suggest
that his victims knowingly declined restitution. The only
statement in the record that we have identified on this issue is
from the probation officer, who wrote that as of the time the
PSR was written, only AV‐1 had provided a response to the
officer’s request for victim impact statements and the govern‐
ment was continuing its efforts to reach the other victims. We
will not draw a negative inference against the victims from
their lack of responses.
Wyatt resists this conclusion by citing to United States v.
Speakman, 594 F.3d 1165, 1176–77 (10th Cir. 2010). But Speak‐
man undermines Wyatt’s point. Speakman states that “the
MVRA requires the sentencing court to provide restitution to
victims, and this overriding public policy prevents a court
from concluding that a victim renounced her interest in resti‐
tution without a clear statement that the victim in fact re‐
nounces restitution.” Id. at 1178 (quotation and alteration
omitted). There are no clear statements renouncing restitution
from Wyatt’s victims here. We reject Wyatt’s argument that
the victims in this case have “knowingly declined restitution.”
Turning to Wyatt’s third argument, we agree that the wit‐
ness statements and grand jury transcripts were available be‐
fore the restitution proceedings. But the ultimate material that
was submitted before sentencing was subject to various fac‐
tual disputes and required analysis and parsing by the district
court. We cannot say that the district court plainly erred by
making the determination that the amount of restitution was
not ascertainable at the time of sentencing, and we think it
14 No. 20‐2382
improper for Wyatt to benefit from the unobjected to, reason‐
able procedure that the district court implemented. This is
particularly true where Wyatt repeatedly acquiesced in the
district court’s determination that it would resolve restitution
at a later date.
In sum, we disagree with Wyatt’s threshold argument that
the district court plainly erred in its determination that the
amount of restitution was not ascertainable on the record be‐
fore it.5
2
Relatedly, Wyatt asserts that Federal Rule of Criminal Pro‐
cedure 32(b), which states that a district court “must impose
sentence without unnecessary delay,” was violated by virtue
of the district court’s handling of the timing of the restitution
determination. This argument is foreclosed by 18 U.S.C.
§ 3664(c). See United States v. Stivers, 996 F.3d 800, 801 (7th Cir.
2021). In Stivers, we held that § 3664(c) makes clear that the
only Federal Rule of Criminal Procedure that applies to resti‐
tution orders is Rule 32(c). Id.; see 18 U.S.C. § 3664(c) (“The
provisions of this chapter, chapter 227, and Rule 32(c) of the
Federal Rules of Criminal Procedure shall be the only rules
applicable to proceedings under this section.”). Thus, his reli‐
ance on Rule 32(b) is misplaced.
5 We therefore need not address Wyatt’s argument that an erroneous de‐
termination on this point strips the district court of jurisdiction, which it‐
self is a questionable proposition in light of the principles discussed in
Dolan v. United States, 560 U.S. 605 (2010) and United States v. Robl, — F.4th
—, 2021 WL 3478644, at *6–7 (7th Cir. 2021).
No. 20‐2382 15
B
Second, Wyatt argues that the district court erred by fail‐
ing to order a “complete accounting” of his victims’ losses and
by relying on belated, untested, and unreliable evidence in
fashioning the restitution award. Because of these failings,
Wyatt argues, the district court ordered him to pay more res‐
titution than he owed. We disagree.
1
Wyatt predicates the “complete accounting” aspect of his
challenge on 18 U.S.C. § 3664(a) and Federal Rule of Criminal
Procedure 32(c)(1)(B). We typically review questions related
to the interpretation of these authorities and whether the dis‐
trict court followed the prescribed procedures, which are
questions of law, de novo. See United States v. Powell, 929 F.2d
1190, 1193 (7th Cir. 1991); United States v. Clark, 538 F.3d 803,
808 (7th Cir. 2008). As the government points out, however,
certain arguments Wyatt makes on these issues were never
raised in the district court. Specifically, Wyatt never objected
to the district court’s reliance on “belated” evidence and
neverraised an argument before the district court that a “com‐
plete accounting” was necessary but had not been performed.
Rather, Wyatt raised specific factual objections to the calcula‐
tions done by the government and its agent, discussed below.
Thus, aside from his factual challenges, our review is for plain
error. See United States v. Fennell, 925 F.3d 358, 361–62 (7th Cir.
2019) (“Because these arguments are different in kind from
those raised in the district court, we will overturn the district
court’s calculation only if we find an errorthat likely deprived
[the defendant] of his substantial rights and had a significant
chance of affecting the outcome.”).
16 No. 20‐2382
Restitution determinations must be made in accordance
with certain legal requirements. Section 3664(a) provides:
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, infor‐
mation sufficient for the court to exercise its dis‐
cretion in fashioning a restitution order. The re‐
port shall include, to the extent practicable, a
complete accounting of the losses to each vic‐
tim, any restitution owed pursuant to a plea
agreement, and information relating to the eco‐
nomic circumstances of each defendant. If the
number or identity of victims cannot be reason‐
ably ascertained, or other circumstances exist
that make this requirement clearly impractica‐
ble, the probation officer shall so inform the
court.
The Federal Rules of Criminal Procedure contain a similar re‐
quirement. Rule 32(c)(1)(B) provides: “If the law permits res‐
titution, the probation officer must conduct an investigation
and submit a report that contains sufficient information for
the court to order restitution.”
We note at the outset that these provisions do not unequiv‐
ocally require a “complete accounting”—rather, such ac‐
counting must be provided “to the extent practicable.” Simi‐
larly, Rule 32(c)(1)(B) requires a report to be provided that
contains “sufficient information” to form the basis for a resti‐
tution order. Such tempering language is logical, as it may be
common for individuals engaged in certain criminal
No. 20‐2382 17
activities—like interstate sex trafficking—to forgo generally
accepted accounting principles or detailed bookkeeping.
We deal first with Wyatt’s contentions that the material re‐
lied upon was incomplete or flawed. In this case, the district
court considered the PSR, the Addendum, the supplemental
government filing which included the case agent’s declara‐
tion, and oral and written restitution arguments from Wyatt
and his attorney. Those materials, in turn, relied on the un‐
derlying plea agreement and materials from the investigation.
The plea agreement noted that its factual basis was based
upon “the anticipated testimony of numerous witnesses, vic‐
tims, and law enforcement agents, and records obtained via
grand jury subpoenas.” The PSR relied extensively on state‐
ments from Wyatt’s victims and other evidence, such as Wy‐
att’s social media. It detailed, in depth, Wyatt’s treatment of
his victims, including that he had repeatedly lashed some of
these women with belts, burned cigarettes on them, strip
searched them to make sure they were giving him all the
money they earned from their “dates,” and generally manip‐
ulated, threatened, and cut them off from contacting their
families. The PSR additionally recounted how the women
would get dates, how much their dates generally cost and the
frequency of those dates, and the timeframe in which they
were involved with Wyatt.
As noted above, Wyatt did not directly challenge the suf‐
ficiency of these materials below; this challenge came on ap‐
peal after Wyatt was ordered to pay more to his sex trafficking
victims than he thinks they deserve. As discussed further be‐
low, the district court did not blindly credit the statements the
case agent made about the grand jury testimony. Rather, the
district court meticulously compared those statements to
18 No. 20‐2382
other materials in the record and made reasoned determina‐
tions where the materials were in conflict or objected to. Thus,
we cannot say that the district court erred in its measured ap‐
proach. Moreover, Wyatt’s intimation that he did not have the
ability to review and determine the reliability of the underly‐
ing materials relied on in the PSR and the case agent’s decla‐
ration is belied by the record. Wyatt’s attorney indicated that
he had reviewed the reports and grand jury testimony, which
in part formed the basis for his detailed objections to the gov‐
ernment’s proposed restitution figures. We similarly reject
Wyatt’s argument that the district court should have required
those transcripts be made part of the record in this case, as
Sanders had the opportunity to review and object to facts con‐
tained therein, which the district court then analyzed. Thus,
we find no error with respect to the lack of a complete ac‐
counting in this case, as the district court based its determina‐
tion on sufficient materials to make a reasoned restitution
award.
2
With respect to the district court’s analysis of the materials
in the record and award, the district court issued a 15‐page
restitution order detailing its reasoning for the ultimate
award of $95,075 to three of Wyatt’s sex trafficking victims.
We review the district court’s determination of the restitution
amount for abuse of discretion, viewing the evidence in the
light most favorable to the government. See United States v.
Friedman, 971 F.3d 700, 717 (7th Cir. 2020). “We will disturb a
restitution order only if the district court relied upon inappro‐
priate factors when it exercised its discretion or failed to use
any discretion at all.” United States v. Havens, 424 F.3d 535, 538
(7th Cir. 2005).
No. 20‐2382 19
The district court did not abuse its discretion with respect
to the amount of restitution. The district court did not simply
accept the government’s proposed restitution figures. Rather,
it analyzed Wyatt’s objections, excised requests that the gov‐
ernment had not proven by a preponderance of the evidence,
and explained its process in so doing. Wyatt fails to identify
any inappropriate factor or absence of discretion. Instead,
Wyatt effectively asks us to start anew to determine the
amount of restitution that is proper. But that is not our role.
Many of Wyatt’s specific factual challenges to the district
court’s findings merit no discussion and border on frivolous.6
Nevertheless, we address two points he raises.
First, Wyatt contends that one victim, AV‐5, was not in fact
a victim forthe first weekend that she worked for him because
there was “no fraud, duress or coercion that caused her to
prostitute herself.” We disagree. The PSR states that, although
AV‐5 voluntarily spoke with Wyatt about becoming a prosti‐
tute and then went on 30‐40 dates on the first weekend, she
stated that she had done so with the expectation of making
6 For example, Wyatt claims that it is “unfathomable” that the victims in
this case never received any of the proceeds from their prostitution, which
he claims should offset what he has to pay them now. Yet, in a portion of
the PSR (which Wyatt did dispute), the probation officer reported, “Alt‐
hough [Wyatt] initially promised AV‐1 that she would keep some of the
money from the dates, Mr. Wyatt took all of the money AV‐1 earned, typ‐
ically around $250.00 per date. … After ‘dates,’ Mr. Wyatt would some‐
times ‘strip search’ AV‐1 to confirm she had not concealed any money she
earned during a date.” AV‐3 and AV‐5 made similar statements. Given the
other acts of extreme physical and sexual violence detailed in the report,
which we will not repeat here, it is indeed fathomable, and was appropri‐
ate for the district court to conclude, that these victims did not keep pro‐
ceeds from Wyatt.
20 No. 20‐2382
money quickly and then returning to her family. But the PSR
reports that Wyatt kept that money and then told her he
“should not have to ask her” for all the money and valuables
she received from a date because she did not want to “wind
up like the last girl.” This supports the district court’s conclu‐
sion that AV‐5 was a victim for this time period.
Second, Wyatt argues that because credibility was at issue,
the district court should have held a hearing and listened to
witness testimony before deciding restitution. Wyatt’s credi‐
bility argument appears to hinge, at least in part, on his dis‐
approval of the district court’s reliance on hearsay statements.
The Federal Rules of Evidence do not apply in calculating res‐
titution, however, and the “use of hearsay is not reversible er‐
ror.” United States v. Bogdanov, 863 F.3d 630, 635 (7th Cir.
2017). The district court, with all the material before it, includ‐
ing Wyatt’s guilty plea, was entitled to make the determina‐
tions it did about the reliability of the statements and did not
abuse its discretion in its handling of this matter.
In the end, we will not disturb the district court’s meticu‐
lous order awarding $95,075 to Wyatt’s victims AV‐1, AV‐3,
and AV‐5.
C
Wyatt next argues that the district court erred by deter‐
mining restitution without affording him counsel. As Wyatt
views it, he was unrepresented from the time an attorney‐cli‐
ent conflict developed shortly after sentencing until the resti‐
tution order was issued. Wyatt argues that following Sand‐
ers’s motion to withdraw, the district court should have con‐
strued Wyatt’s February 24, 2020 filing requesting more time
to respond to the government’s post‐restitution hearing
No. 20‐2382 21
argument as a motion for new counsel or substitution of coun‐
sel because Wyatt wrote that he did not “trust Mr. Sanders to
do anything for me” and he viewed Sanders as having “sided
with the government[.]” Wyatt additionally points to his Feb‐
ruary 13 filing, in which he argued that Sanders was working
with the government against Wyatt’s interest, as evidence of
the breakdown in the relationship.
We disagree that Wyatt was deprived of counsel and that
the district court had a duty to construe Wyatt’s submission
as a motion to substitute counsel. Sanders’s representation of
Wyatt began on October 2, 2018, when Wyatt fired his previ‐
ous attorney and hired Sanders. Sanders represented Wyatt
throughout the plea process and sentencing, and his advocacy
continued throughout the restitution process. The govern‐
ment initially requested a total of $202,000 in restitution,
which was reduced to $129,850 following Sanders’s negotia‐
tion with the government and his substantive arguments
against the government’s figures. Yet Wyatt contends that this
representation was unsuccessful because, following the Feb‐
ruary 7, 2020 hearing, Sanders moved to withdraw and ap‐
parently stopped working on the case. But by the time that
hearing concluded and at the time Sanders moved to with‐
draw, the record as to the proper restitution figure was thor‐
oughly developed. The government’s calculations had al‐
ready been detailed, and Sanders had methodically chal‐
lenged the bases for the government’s figures. By the time
Sanders moved to withdraw, his representation of Wyatt was
complete. The district court analyzed Sanders’s arguments
(along with Wyatt’s subsequent pro se arguments) and
awarded a total of $95,075 in restitution, more than $100,000
less than the government’s initial restitution request.
22 No. 20‐2382
Furthermore, the district court had no duty to construe
Wyatt’s pro se February 24 motion for more time as a motion
for substitute counsel. Wyatt complained about Sanders’s rep‐
resentation (which proved to be effective), but that is not a re‐
quest for new counsel. It is common practice for convicted de‐
fendants to complain at some point about their attorney’s rep‐
resentation. To require district courts to construe such com‐
plaints as requests to substitute counsel is asking too much.
Wyatt did not ask for new counsel and did not say near
enough for the district court to have construed his motion as
he now suggests. Moreover, although the district court had
no duty to do so—because Wyatt was still represented by
Sanders until the court granted Sanders’s motion to withdraw
in its order setting the amount of restitution—the district
court nonetheless considered Wyatt’s pro se substantive chal‐
lenges to the government’s restitution submissions.
Wyatt’s right to counsel challenge does not fall neatly
within any existing framework for analysis, as appellate
counsel appears to recognize in briefing. Wyatt correctly notes
that if we were reviewing the denial of a motion to substitute,
he would bear the burden of showing prejudice arising from
the district court’s denial. In that vein, Wyatt argues that be‐
cause he was completely denied counsel, we should draw
from United States v. Cronic, presume prejudice, and reverse.
466 U.S. 648, 659 (1984). This case, however, does not fall
within the Cronic framework, as Wyatt was represented dur‐
ing the restitution proceedings in all substantive respects. The
only government filing following Sanders’s motion to with‐
draw dealt primarily with the district court’s admonition of
the government attorneys for failing to follow the statutory
deadlines concerning restitution. Moreover, the government’s
substantive arguments concerning restitution mirrored the
No. 20‐2382 23
previous arguments the government had made, except for the
reduction in the amount sought for AV‐3 in response to Sand‐
ers’s argument at the February 7 hearing.
Given the particular facts in this case and the well‐devel‐
oped record on the restitution figures, we reject Wyatt’s asser‐
tion that his own eleventh‐hour maneuvering with respect to
counsel violated his constitutional rights.
D
Finally, Wyatt argues that the district court erred by enter‐
ing the restitution order outside his physical presence. Wyatt
presses three separate arguments on this point. The first relies
on Federal Rule of Criminal Procedure 43(a)(3), the second re‐
lies on 18 U.S.C. § 3553(c), and the third is that the procedure
in this case violated his due process rights. None of these ar‐
guments has merit.
Rule 43(a)(3) states, in relevant part: “Unless this rule, Rule
5, or Rule 10 provides otherwise, the defendant must be pre‐
sent at … sentencing.” In Stivers, we rejected the same argu‐
ment that Wyatt makes here—that Rule 43(a)(3) requires res‐
titution be ordered in the defendant’s presence—because 18
U.S.C. § 3664(d)(5) states, in part, that among the Federal
Rules of Criminal Procedure, only Rule 32(c) is applicable to
restitution proceedings. 996 F.3d at 801. Stivers forecloses Wy‐
att’s Rule 43 argument, as the parties have recognized.
Before oral argument, the government submitted a letter
of supplemental authority citing Stivers. In response to that
letter, Wyatt argued that he raised an argument that was not
reached in Stivers, namely that the district court’s restitution
order violated 18 U.S.C. § 3553(c). Section 3553(c) states, in rel‐
evant part:
24 No. 20‐2382
The court, at the time of sentencing, shall state
in open court the reasons for its imposition of
the particular sentence[.] … If the court does not
order restitution, or orders only partial restitu‐
tion, the court shall include in the statement the
reason therefor.
But § 3553(c) offers Wyatt no help. The district court ordered
full restitution, which is evident because it noted that it was
proceeding pursuant to the applicable mandatory restitution
statutes, which require an award of the “full amount of the
victim[s’] losses.” 18 U.S.C. § 1593(b)(1); see Restitution Or‐
der, R. 92 at 4 (“The Supreme Court explained that the pri‐
mary purpose of the statute was ‘to ensure that victims of a
crime receive full restitution[,]’” citing Dolan v. Unites States,
560 U.S. 605, 612 (2010).). Wyatt offers no support for the
proposition that simply because the government initially re‐
quested more restitution—but ultimately did not meet its bur‐
den on each claimed loss—that the award constituted “par‐
tial” restitution. Full restitution is calculated by reference to
the victims’ losses that the government can prove. Wyatt’s
successful challenges to specific facts underlying the govern‐
ment’s initial restitution requests (such as challenges to spe‐
cific days that the women could not have been working for
Wyatt, which the district court excised) did not convert resti‐
tution to a partial award, which was foreclosed by the man‐
datory requirement that the district court order full restitu‐
tion.7
7 To the extent that § 3553(c)’s requirement that partial and no‐restitution
orders be read in open court at the time of sentencing may conflict with
the restitution procedures laid out in 18 U.S.C. §§ 3663A or 3664, we need
No. 20‐2382 25
Finally, Wyatt attacks at length United States v. Newman,
which held that restitution does not “qualif[y] as a criminal
punishment.” 144 F.3d 531, 538 (7th Cir. 1998). As Wyatt
points out, several other circuits have disagreed with New‐
man, and he now asks us to reverse course and definitively
hold that restitution is a criminal penalty. We need not reach
this issue because whether or not a restitution order is a crim‐
inal punishment does not alter our resolution of his physical
presence argument. Wyatt also briefly argues that, assuming
restitution is civil in nature, due process requires that a hear‐
ing be held in which live testimony is heard. Wyatt does not
cite to any relevant authority supporting his position on this
point or explain how this argument is relevant to his presence
argument.
The district court did not err in this case by awarding res‐
titution outside of Wyatt’s presence.
Outcome: To conclude, Wyatt was well represented in the proceed‐
ings before the district court. The district court carefully cal‐
culated the restitution for Wyatt’s sex trafficking victims, and
no reversible error occurred in the process.
AFFIRMED
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