                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2688
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Bryan Binkholder

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: September 28, 2018
                             Filed: November 20, 2018
                                   ____________

Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
                          ____________


KELLY, Circuit Judge.

       Bryan Binkholder defrauded more than a dozen individuals in the St. Louis
area through a real estate investment scheme. He pleaded guilty to four counts of
wire fraud in violation of 18 U.S.C. § 1343. This is his second appeal of his sentence.
On the first appeal, we affirmed the judgment of the district court1 with one
exception: we remanded the case for an independent determination of whether
another participant in the scheme, M.U., should be considered a victim of
Binkholder’s scheme for purposes of sentencing. See United States v. Binkholder
(Binkholder I), 832 F.3d 923, 931 (8th Cir. 2016). On remand, the district court
concluded that M.U. was a victim under United States Sentencing Guidelines
§ 2B1.1. It then resentenced Binkholder. Binkholder appeals the district court’s
determination under § 2B1.1 and several other issues arising from the resentencing.
We affirm.

                                          I.

       M.U.’s status as a victim has been at issue in this case more than once. In
2015, the district court held an evidentiary hearing on whether M.U. was a victim of
Binkholder’s scheme—if M.U. was a victim, the total loss associated with
Binkholder’s scheme would result in a greater enhancement to Binkholder’s
Guidelines offense level. On February 9, 2015, it found that M.U. was not a victim
“for sentencing purposes” because, although he may have lost some money due to
fraud, he was complicit in Binkholder’s scheme. M.U. then asked the district court
to recognize him as a victim under the Crime Victims’ Rights Act (CVRA), which
would allow him restitution. See 18 U.S.C. § 3771. The district court refused, based
on its earlier finding that M.U. was not a victim. M.U. filed a petition for a writ of
mandamus asking this court to order the district court to recognize him as a victim
under the CVRA. We granted M.U.’s petition and directed the district court to vacate
its February 9 order and enter an order recognizing M.U. as a victim under the




      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

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CVRA.2 The district court did so. At Binkholder’s May 15 sentencing, he renewed
his argument that M.U. should not be recognized as a victim under Guidelines
§ 2B1.1.3 The district court refused based on the writ of mandamus, calculated the
Guidelines range using M.U. as a victim under § 2B1.1, and sentenced Binkholder
accordingly.

       Binkholder appealed. We affirmed all aspects of the district court’s judgment
except M.U.’s status as a victim. We explained that “the determination of who is a
victim under the CVRA is not necessarily dispositive of who is a victim under the
Sentencing Guidelines.” Binkholder I, 832 F.3d at 929. Because the district court
improperly collapsed the two victim status determinations, we remanded the case “so
that the district court may determine in the first instance whether M.U. was a victim
under the Guidelines and, if necessary, proceed to resentencing.” Id. at 930.

      On remand, the district court concluded, based on the evidence presented at the
2015 hearing, that M.U. was a victim under § 2B1.1 because (1) M.U.’s money was
used to further Binkholder’s scheme without M.U.’s knowledge; (2) M.U. sustained
an actual loss of more than $1 million; and (3) this court had already determined that
M.U. was a victim under “the CVRA’s narrower definition of victim.” The district
court then resentenced Binkholder, using the same version of the Guidelines,




      2
      The CVRA defines a crime victim as “a person directly and proximately
harmed as a result of the commission of a Federal offense.” 18 U.S.C.
§ 3771(e)(2)(A).
      3
       Section 2B1.1 defines a victim as “any person who sustained any part of the
actual loss.” USSG § 2B1.1 cmt. n.1. Actual loss is defined as “the reasonably
foreseeable pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i).

                                         -3-
calculating the same Guidelines range, and imposing the same sentence as it did at
the initial sentencing.4



                                         II.

       We review the district court’s findings regarding an individual’s status as a
victim under the Guidelines for clear error. See United States v. Maxwell, 778 F.3d
719, 734 (8th Cir. 2015). “Under clear error review, we ask whether we have a
definite and firm conviction that the district court has committed a mistake.” United
States v. Brandriet, 840 F.3d 558, 561 (8th Cir. 2016) (per curiam).

       In Binkholder I, when we explained that “the determination of who is a victim
under the CVRA is not necessarily dispositive of who is a victim under the
Sentencing Guidelines,” we clarified that “[b]ecause these two inquiries are distinct,
the court was required to make two separate determinations: M.U.’s victim status
under the CVRA (for the purpose of protecting M.U.’s rights and determining
restitution), and M.U.’s victim status under the Guidelines (for the purpose of
calculating the loss associated with Binkholder’s offense to determine the total
offense level and, ultimately, the appropriate sentence).” 832 F.3d at 929–30.
Contrary to the district court’s reading, we did not describe the CVRA definition of
victim as “narrower” than the Guidelines definition. Nevertheless, we do not believe
that the district court’s ultimate determination—that M.U. is a victim under the
Guidelines—was erroneous. Guidelines § 2B1.1 defines a victim as “any person who
sustained any part of” the “reasonably foreseeable pecuniary harm that resulted from
the offense.” The district court found that M.U. sustained a monetary loss because


      4
        The amount of restitution ordered on resentencing was slightly different from
the amount ordered at the original sentencing for reasons unrelated to M.U.’s victim
status.

                                         -4-
of Binkholder’s scheme. Those factual findings are not clearly erroneous, and they
support the conclusion that M.U. was a victim under § 2B1.1.

                                         III.

      Binkholder also challenges the constitutionality of 18 U.S.C. § 3742(g)(1).
This statute requires district courts, when resentencing after remand from a direct
appeal, to use the version of the Guidelines that was “in effect on the date of the
previous sentencing of the defendant prior to the appeal.” The district court,
following § 3742(g)(1), applied the 2014 Guidelines on resentencing. Binkholder
would have preferred the application of the more favorable 2016 Guidelines, which
had gone into effect by that time. He points to the Guidelines’ general instruction in
§ 1B1.11(a) to “use the Guidelines Manual in effect on the date that the defendant is
sentenced.” He contends that § 3742(g)(1) is an irrational exception to the general
rule of § 1B1.11(a) and that its differential treatment of defendants who are
resentenced violates the Equal Protection Clause of the United States Constitution.

      We review the constitutionality of a statute de novo. See United States v.
DeMarce, 564 F.3d 989, 1000 (8th Cir. 2009). Where, as here, the statute is
challenged on equal protection grounds, we review for a rational basis, see id., and
we uphold the statute “if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.” Walker v. Hartford Life & Accident
Ins. Co., 831 F.3d 968, 976 (8th Cir. 2016) (quoting FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993)).

       Here, § 3742(g)(1) and § 1B1.11(a) may be read in concert to accomplish a
single, rational goal: to make sure that defendants are sentenced under the version of
the Guidelines in effect on the date of their original sentencing. Accord United States




                                         -5-
v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011).5 Thus, defendants who receive an
erroneous sentence and successfully appeal are returned to the position they would
have been in had they been correctly sentenced the first time around. But they do not
receive the unwarranted benefit of a favorable change in the Guidelines—unless the
change was made retroactive, in which case it would be available to all defendants
regardless of the outcome of a direct appeal. See United States v. Walker, 818 F.3d
416, 424 (8th Cir. 2016). The district court’s application of the version of the
Guidelines in effect at the time of Binkholder’s original sentencing did not violate the
Constitution.

                                           IV.

       Binkholder attempts to raise two other issues concerning his resentencing: the
award of restitution to M.U. and the substantive reasonableness of the sentence.
Because both of these issues arose in his original sentencing and could have been
presented in his initial appeal, he cannot raise them now. See Macheca Transp. Co.
v. Phila. Indem. Ins. Co., 737 F.3d 1188, 1194 (8th Cir. 2013) (“For over one hundred
years, our court has repeatedly barred parties from litigating issues in a second appeal
following remand that could have been presented in the first appeal.”); United States
v. McKinley, 227 F.3d 716, 718–19 (6th Cir. 2000) (applying the same rule in a
second appeal of a criminal case following remand and resentencing).


      5
        There is one discrepancy within this otherwise uniform sentencing scheme.
This court has held that when resentencing a defendant under 28 U.S.C. § 2255, a
district court should apply “the guidelines in effect at the time of resentencing, not at
the time of the original sentencing.” United States v. Tidwell, 827 F.3d 761, 764 (8th
Cir. 2016). The rationale for this rule, according to Tidwell, is that a resentencing
under § 2255 is de novo, unlike a resentencing on remand from a direct appeal. Id.
at 764 & n.3. No other circuit has addressed this issue. And we need not address it
here, as any irrationality would only call into question Tidwell’s rule, not the statutory
scheme that Binkholder challenges.

                                           -6-
Accordingly, the judgment of the district court is affirmed.
                ______________________________




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