                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2125
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Bryan Binkholder

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                              Submitted: April 15, 2016
                               Filed: August 12, 2016
                                   ____________

Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       Bryan Binkholder pleaded guilty to four counts of wire fraud in violation of 18
U.S.C. § 1343. He now appeals his sentence. After careful consideration of the issues
he presents, we reverse and remand for further consideration of whether a particular
individual, M.U., should be considered a victim of Binkholder’s scheme for purposes
of sentencing, and otherwise affirm the judgment of the district court.
                                   I. Background

       Binkholder operated as an investment advisor in the St. Louis area. He ran a
business called The Financial Coach, advising clients about investment strategies and
financial planning. He also provided general financial advice to the public via his
websites, YouTube channel, radio show, and various books and articles. Between
2008 and 2012, Binkholder engaged in a real estate investment scheme he called the
“hard money lending program.”1 Binkholder solicited roughly 20 investors for his
program, many of whom were individuals of retirement age seeking an investment for
their retirement funds. Binkholder told prospective investors that he was working
with various real estate developers who either could not or did not want to seek
financing for their development projects from traditional banking institutions.
Binkholder explained that he would act as a bank, taking money from investors and
lending it to the developers. He said that the developers would pay a high rate of
interest, which would then be shared between Binkholder and the investors.
Binkholder also represented that the investor’s principal investment would be secured
by a deed of trust on a specific piece of real property.

      However, after receiving the investments, Binkholder commingled the funds
and used them to pay his own personal and business expenses. He also used
investors’ principal funds to make purported “interest” payments to the same or other
investors. Binkholder also failed to disclose to investors that the hard money lending
program had insufficient borrowers to produce the returns he had promised. Instead,
Binkholder misrepresented the success of the program in an effort to induce additional
investment and reinvestment. When the United States Postal Inspection Service
eventually contacted Binkholder’s investors and told them they might be victims of




      1
       Generally speaking, hard money loans are a high-risk, high-interest type of
loan secured by real property.

                                         -2-
an unlawful scheme, Binkholder responded by sending the investors a letter falsely
assuring them that the lending program was doing well and generating income.

       Binkholder was ultimately charged with four counts of wire fraud in violation
of 18 U.S.C. § 1343 and one count of bank fraud in violation of 18 U.S.C. § 1344 in
connection with his hard money lending program. On January 8, 2015, Binkholder
pleaded guilty to the four wire fraud counts pursuant to a written plea agreement. In
the plea agreement, the parties agreed on certain Guidelines calculations, the
government agreed to dismiss the bank fraud charge at the time of sentencing, and
Binkholder agreed to waive certain of his appeal rights. The parties also identified a
disagreement as to whether a person known as M.U. was a victim. If the court
determined M.U. was a victim, the parties agreed that the total offense level was 28;
if the court determined he was not, they agreed that the total offense level was 26.
These calculations also assumed that Binkholder would receive a 3-level reduction for
acceptance of responsibility, although the government reserved the right to challenge
that reduction at sentencing based on any new information received after the taking
of Binkholder’s guilty plea.2

      At sentencing on May 15, 2015, the district court determined that M.U. was a
victim for purposes of sentencing, denied a reduction for acceptance of responsibility,
and calculated a total offense level of 31. With a criminal history category of I,
Binkholder’s advisory Sentencing Guidelines range was 108–135 months’
imprisonment. The district court ultimately sentenced Binkholder to 108 months’
imprisonment followed by 3 years of supervised release, and ordered him to pay
$3,655,968.89 in restitution. Binkholder appeals, challenging four aspects of his
sentencing.




      2
        The government ultimately withdrew its support for the reduction, leaving the
issue to the district court’s discretion.
                                         -3-
                                  II. Appeal Waiver

       As an initial matter, we must consider whether Binkholder’s appeal waiver
precludes this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)
(we review the “validity and applicability” of an appeal waiver de novo). In his
written plea agreement, Binkholder waived “all rights to appeal all sentencing issues
other than criminal history” so long as the district court “accepts the plea, accepts the
U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after
determining a Sentencing Guidelines range, sentences the Defendant within or below
that range.” Binkholder argues that the total offense level contemplated by the plea
agreement was either 26 or 28, and because the district court ultimately determined
that the total offense level was 31, his waiver cannot be enforced to bar this appeal.

        We agree. The government has the burden to establish that a given appeal is
“clearly and unambiguously” within the scope of an appeal waiver. United States v.
McIntosh, 492 F.3d 956, 959 (8th Cir. 2007). Here, the parties agreed that Binkholder
should receive a 3-level reduction for acceptance of responsibility, with the
government reserving the right to argue against it if it “receives new evidence of
statements or conduct by the Defendant which it believes are inconsistent with
Defendant’s eligibility for this [re]duction.” The parties also agreed that the
“Estimated Total Offense Level” was either 26 or 28, and did not include a
contingency for the possibility that the reduction for acceptance of responsibility
might not apply. Finally Binkholder waived his right to appeal “in the event the Court
. . . accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein.”
Reading the agreement as a whole, there are two possible constructions of the term
“agreed to herein” in the appeal waiver: Either the total offense level “agreed to
herein” includes levels 26 and 28, as well as any adjustments to those levels otherwise
permissible under the plea agreement; or it encompasses only the two possible total
offense levels that are identified in the agreement and are thus specifically “agreed
to herein.” We construe this ambiguity in Binkholder’s favor, United States v. Andis,

                                          -4-
333 F.3d 886, 890 (8th Cir. 2003) (en banc), and conclude that because the district
court did not apply one of the two total offense levels specifically contemplated by the
plea agreement, Binkholder’s appeal waiver does not preclude this appeal.

                          III. Acceptance of Responsibility

       Binkholder argues that the district court erroneously denied his request for a
reduction in his offense level for acceptance of responsibility. Here, the district court
denied the reduction because Binkholder continued to engage in fraudulent or
dishonest activity after pleading guilty on January 8, 2015. Later that same month,
Binkholder attempted to resell several properties he had previously sold in July 2014.
He tried to complete this sale without disclosing to the prospective buyers the fact of
his federal criminal charges, the active lis pendens on the properties, or the prior sale
of the properties. In March 2015, the government filed a petition for revocation of
Binkholder’s bond based on this conduct. The magistrate judge found that Binkholder
had “committ[ed] substantial criminal acts similar in nature to those to which he pled
guilty,” and revoked his bond. Binkholder’s Presentence Investigation Report (PSR)
noted the magistrate judge’s finding, and recommended that Binkholder not receive
a reduction for acceptance of responsibility. At sentencing, the district court pointed
out that the conduct considered at the bond revocation hearing was “virtually the
same” type of fraudulent behavior that formed the basis of Binkholder’s convictions.
The court then adopted the facts as stated in the PSR, and determined that Binkholder
was not eligible for a reduction in his offense level for acceptance of responsibility.

       Binkholder has the burden of establishing he is entitled to receive a reduction
in his offense level for acceptance of responsibility, United States v. Janis, 71 F.3d
308, 310 (8th Cir. 1995), and we will reverse the district court’s denial of a reduction
“only if it is so clearly erroneous as to be without foundation,” United States v.
Adejumo, 772 F.3d 513, 536 (8th Cir. 2014), cert. denied sub nom. Okeayainneh v.
United States, 135 S. Ct. 1869 (2015) (quoting United States v. William, 681 F.3d

                                          -5-
936, 938 (8th Cir. 2012)). On appeal, Binkholder argues there was no evidence that
he intended to defraud the would-be purchaser of the properties. He asserts that there
was therefore insufficient evidence that he engaged in criminal conduct. But conduct
need not be criminal to be inconsistent with acceptance of responsibility. See United
States v. Drapeau, 943 F.2d 27, 28 (8th Cir. 1991). Conducting a real estate
transaction without disclosing pertinent information about an ongoing federal criminal
case premised on real estate investment fraud could very well be considered conduct
inconsistent with acceptance of responsibility, even if the transaction was not
independently criminal. See also USSG § 3E1.1(a) cmt. n.3 (a defendant who seeks
to benefit from a reduction for acceptance of responsibility must “clearly
demonstrate[] acceptance of responsibility for his offense,” and while a guilty plea
combined with truthfully admitting to the offense conduct is significant evidence in
the defendant’s favor, it “may be outweighed” by conduct that is inconsistent with
acceptance of responsibility).

        Binkholder also argues that the district court improperly relied on the magistrate
judge’s bond revocation decision to deny the reduction, because the standard of proof
is different in the two contexts. The PSR did refer to the magistrate judge’s decision
when recommending denial of the reduction, but there is no indication that the district
court improperly deferred to that decision at sentencing. See United States v.
Schlosser, 558 F.3d 736, 741 (8th Cir. 2009) (where the district court relied on the
facts enumerated in the PSR and incident report in deciding to impose an upward
variance, the court had not improperly relied on the magistrate judge’s bond
revocation decision). Rather, the court adopted the facts described in the PSR and
concluded, based on those facts, that Binkholder was not entitled to the reduction.

       Otherwise, Binkholder recites only the facts that would have supported a
finding of acceptance of responsibility, asserting that they were sufficient to support
the reduction. But the district court “is in a unique position to evaluate a defendant’s
acceptance of responsibility,” and that evaluation “is entitled to great deference on

                                           -6-
review.” USSG § 3E1.1 cmt. n.5. Here, the district court determined that
Binkholder’s post-plea conduct was inconsistent with a finding that he had accepted
responsibility for his offenses. Upon review of the sentencing record, we find no clear
error in that determination.

                      IV. Writ of Mandamus and Victim Status

       In their plea agreement, the parties expressly disagreed on whether M.U. was
a victim for purposes of sentencing, leaving for the court to determine whether M.U.’s
“investment should be included as relevant conduct.” If M.U. was a victim, the total
loss associated with Binkholder’s scheme would result in an 18-level increase in his
offense level pursuant to USSG § 2B1.1; if not, the total loss would result in only a
16-level increase.3 On January 27, 2015, the district court held an evidentiary hearing
on whether M.U. was a victim. After additional briefing on the issue, the district court
issued a written decision on February 9, finding that M.U. was “not a victim for
purposes of sentencing.” The court found that M.U. was a sophisticated
businessperson who was complicit in Binkholder’s scheme, and the mere fact that he
lost money as a result of his involvement with Binkholder was insufficient to make
him a victim.

       M.U. then filed a motion with the district court asking that he be recognized as
a victim pursuant to the Crime Victims’ Rights Act (CVRA). See 18 U.S.C. § 3771.
The district court denied M.U.’s motion on March 3, 2015, concluding that M.U.
could not avail himself of the CVRA’s protections because the court had already
determined that he was not a victim. On April 27, 2015, M.U. filed a petition for a


      3
       The estimated loss of all victims excluding M.U. was $2,332,969, and M.U.’s
estimated loss was $1,075,000. The parties therefore agreed that if M.U. was not a
victim, the total loss was greater than $1 million but less than $2.5 million, and if
M.U. was a victim, the total loss was greater than $2.5 million but less than $7
million.
                                          -7-
writ of mandamus asking this court to order the district court to vacate its prior
decision and recognize M.U. as a victim under the CVRA. On April 30, 2015, we
granted M.U.’s petition and directed the district court to enter an order recognizing
M.U. as a crime victim pursuant to the CVRA. The district court did so, entering an
order vacating its orders of February 9 and March 3 and finding that M.U. “is a victim
pursuant to the Crime Victims’ Rights Act, 18 U.S.C. § 3771.”

        At sentencing on May 15, 2015, Binkholder objected to M.U. being considered
a victim for purposes of sentencing. The district court overruled the objection, stating
that it would “stand by the Eighth Circuit decision.”4 The court therefore included
M.U.’s investment when calculating loss, resulting in a total offense level of 31 (level
28 as agreed to by the parties if M.U. was a victim, without the originally anticipated
3-level reduction for acceptance of responsibility), and imposed sentence accordingly.
Binkholder argues that the district court erroneously considered our mandate ordering
that M.U. be recognized as a victim under the CVRA to be dispositive of M.U.’s
victim status in the sentencing context. He argues that the CVRA victim status
determination and the victim status determination under the Sentencing Guidelines are
distinct inquiries, and that the district court erred by not conducting a separate analysis
under each.

       The CVRA defines “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). Under
application note 1(A) to § 2B1.1 of the Sentencing Guidelines, “[v]ictim means . . .


      4
        An additional relevant factor here is that Binkholder apparently did not contest,
and may not have had the opportunity to contest, M.U.’s petition for a writ of
mandamus. See 18 U.S.C. § 3771(d)(3) (“[t]he court of appeals shall take up and
decide such application forthwith within 72 hours after the petition has been filed”).
We have significant concerns about the due process implications of the writ
effectively increasing Binkholder’s Guidelines range by two years if he did not have
the opportunity to contest the petition.
                                           -8-
any person who sustained any part of the actual loss determined under subsection
(b)(1).” Though these definitions are similar, they are not necessarily coextensive.
See United States v. Niebuhr, 456 F. App’x 36, 38 (2d Cir. 2012) (unpublished).
While the CVRA is intended to protect the rights of crime victims5 and ensure that
they receive proper restitution for their injuries, the Guidelines are meant to assess the
culpability of the defendant. Compare United States v. Alexander, 679 F.3d 721, 731
(8th Cir. 2012) (“While the amount of loss calculation looks to the greater of actual
or intended loss, the amount of restitution under the MVRA ‘cannot exceed the actual,
provable loss realized by the victims.’”) (quoting United States v. Frazier, 651 F.3d
899, 905 (8th Cir. 2011)) with United States v. Stennis-Williams, 557 F.3d 927, 930
(8th Cir. 2009) (“[T]he Guidelines did not entitle Defendant to have the money she
returned credited against the amount of loss for purposes of calculating her offense
level,” because return of the money did not diminish her culpability for the original
theft). Thus, the determination of who is a victim under the CVRA is not necessarily
dispositive of who is a victim under the Sentencing Guidelines.

     Here, the district court appears to have concluded at sentencing that our
mandate requiring the court to recognize M.U. as a crime victim pursuant to the
CVRA also required it to find that M.U. was a victim for Guidelines purposes.6 This

      5
        The rights protected by the CVRA include “[t]he right to be reasonably
protected from the accused”; the right to notice of public court proceedings or parole
proceedings; “[t]he right to be reasonably heard at any public proceeding . . .
involving release, plea, sentencing, or any parole proceeding”; “[t]he reasonable right
to confer with the attorney for the Government”; “[t]he right to full and timely
restitution as provided in law”; and “[t]he right to be treated with fairness and respect
for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a).
      6
        With respect to the dissent’s assertion that the mandamus panel treated the two
inquiries as coextensive, we note that a writ of mandamus is only available to remedy
an incorrect victim status determination under the CVRA, and is not available to
correct an erroneous victim status determination under the Guidelines. See 18 U.S.C.
§ 3771(d)(3). Though the mandamus panel could have ordered the vacatur of the
                                           -9-
appearance is bolstered by the court’s order of March 3, 2015, which also collapsed
the two victim status determinations. We therefore cannot find, on the record in this
case, that the district court properly determined whether M.U. was a victim under
§ 2B1.1 of the Sentencing Guidelines such that the financial losses he suffered should
increase Binkholder’s ultimate sentence. Because 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). The mandate from this court dictated the result
on the former question. But because the district court’s February 9, 2015, order was
vacated, the only ruling on the record as to the latter question is the one made at
sentencing, and that ruling improperly collapsed the two inquiries, relying on the
CVRA determination as dispositive of the Guidelines determination. On this issue,
therefore, we reverse and remand, 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.

                                    V. Restitution

       Binkholder’s third argument is that the district court erred in calculating the
restitution owed to three victims, A.B., R.W., and M.U.. He asserts that the calculated
restitution for A.B. and R.W. should have been based on the fair market value of the
properties securing their investment, but that the fair market value was never properly
determined. With regard to M.U., Binkholder asserts that the amount of restitution
calculated in the PSR, and ultimately imposed by the district court, was contradicted


district court’s March 3 order only, leaving the district court’s victim status
determination as to sentencing intact, we do not read its succinct order finding M.U.
to be a victim under the CVRA to resolve the question of whether the CVRA and
Guidelines victim status determinations are coextensive.
                                         -10-
by other record evidence. Because Binkholder did not object to the calculation of
restitution as to any of these victims at sentencing, we review this claim for plain
error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). Binkholder must
show “(1) error, (2) that is plain, . . . (3) that affects substantial rights[, and] . . . (4)
[that] seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 550 (quoting Johnson v. United States, 520 U.S. 461, 467–68
(1997)).

       In support of his argument that the restitution owed to A.B. and R.W. was
improperly calculated, Binkholder broadly asserts only that the PSR did not indicate
the method of valuing the properties. Though he is correct that the fair market value
of the property is the appropriate measure of restitution, USSG § 2B1.1 cmt.
n.3(E)(ii), and that victims are only entitled to restitution in the amount of their
provable loss, United States v. Chalupnik, 514 F.3d 748, 754 (8th Cir. 2008), he fails
to explain how the calculation of restitution in the PSR was incorrect. Nor does he
explain how the amount of restitution imposed differs from the fair market value of
the properties. On the other hand, the PSR clearly set out the details of each victim’s
investment with Binkholder and calculated the restitution losses for each victim based
on these investment amounts. At sentencing, the district court heard statements from
several victims, including A.B., and ultimately ordered payment of restitution as
calculated in the PSR. With no more specific argument than Binkholder presents, we
cannot conclude that the district court committed plain error when determining the
amount of restitution owed to A.B. and R.W.




                                            -11-
       The restitution owed to M.U.7 as calculated in the PSR, and the amount
ultimately imposed by the district court, was $1,205,000. This calculation was based
on the total amount of M.U.’s investment in Binkholder’s scheme, minus the amount
of principal investment that had been repaid. Binkholder argues that the correct
amount of restitution was $1,045,000, citing M.U.’s testimony, the testimony of an
FBI agent, and the plea agreement in support of that argument. Specifically, the FBI
agent testified that Binkholder owed M.U. $1,033,000, and the plea agreement
estimated M.U.’s loss at $1,075,000. Though M.U. testified about certain specific
principal investments, he did not provide a total estimate of his loss. But the fact that
varying estimates of M.U.’s losses were presented at various points in the case does
not by itself indicate that the district court’s ultimate determination was erroneous,
much less plainly so. The calculation in the PSR was the latest assessment of M.U.’s
loss, and the only one not characterized as an estimate. And Binkholder provides no
specific argument as to why the ultimate calculation was incorrect, beyond merely
pointing out the inconsistency with previous estimates (which were themselves
inconsistent). On this record, where the district court found the facts to be as
presented in the PSR and imposed restitution accordingly, we cannot conclude that the
court plainly erred in its determination of the restitution owed to M.U..

                        VI. Ineffective Assistance of Counsel

      Finally, Binkholder argues that he received ineffective assistance of counsel at
sentencing with regard to the calculation of loss and his right to appeal that
calculation. We decline to consider this issue on direct appeal. United States v.
Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011) (we review ineffective


      7
        We note that Binkholder here challenges only the amount of restitution
ordered, and our review of this calculation does not reflect on M.U.’s status as a
victim under the Sentencing Guidelines. We leave to the district court to determine
in the first instance whether its decision on M.U.’s status as a Guidelines victim
affects the amount of restitution owing.
                                          -12-
assistance of counsel claims on direct appeal only in “‘exceptional cases,’” where the
factual record is fully developed, counsel’s error is readily apparent, or a plain
miscarriage of justice would result) (quoting United States v. Hernandez, 281 F.3d
746, 749 (8th Cir. 2002)). None of the circumstances that would support review of
this issue on direct appeal are present in this case.

                                   VII. Conclusion

      For the foregoing reasons, we reverse and remand for the district court to
determine whether M.U. was a victim of Binkholder’s offenses for sentencing
purposes, and if necessary to proceed to resentencing. We otherwise affirm the
judgment of the district court.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

       I respectfully dissent from Part IV of the court’s opinion. The court holds that
the district court erred when it relied on our mandate to conclude that M.U. was a
victim under the Sentencing Guidelines. According to the court, our mandate directed
the district court to recognize M.U. as a victim only under the CVRA, but had no
effect on the question of whether M.U. was a victim for sentencing purposes. The
court faults the district court for not conducting a separate inquiry into whether M.U.
was a victim under the Sentencing Guidelines. In my view, the district court faithfully
applied our mandate, which clearly directed the court to recognize M.U. as a victim
for restitution and sentencing. Some brief context is necessary.

       The district court held an evidentiary hearing on January 27, 2015 to determine
whether M.U. was a victim for sentencing purposes. On February 9, the district court
issued an order finding that M.U. was not a victim because he was a “knowledgeable
and willing participant” in Binkholder’s illegal activities. The order did not discuss
restitution or the CVRA. M.U. then filed a motion, pursuant to the CVRA, asking the

                                         -13-
district court to reconsider its February 9 decision and to recognize him as a victim.
On March 3, the district court issued an order denying M.U.’s motion to reconsider.
The court did not separately analyze M.U.’s alleged victim status under the CVRA,
instead concluding that M.U. could not intervene under the CVRA because the district
court had already determined—in its February 9 order—that M.U. was not a victim.
M.U. next filed a petition for a writ of mandamus asking this court to order the district
court to recognize M.U. as a victim. We granted M.U.’s petition and directed the
district court to “vacate its February 9, 2015, order and to enter an order recognizing
[M.U.] as a crime victim pursuant to the [CVRA].”

       The order to the district court reveals that the mandamus panel assumed that the
same analysis applies under the CVRA and the Guidelines. If the mandamus panel
had thought that resolving this issue under the CVRA and the Guidelines required
distinct analyses, it would have directed the district court to vacate its March 3 order
and to recognize M.U. as a victim only for purposes of restitution. Instead, the
mandamus panel directed the court to vacate its February 9 order—the order in which
it determined that M.U. was not a victim for sentencing purposes—and to recognize
M.U. “as a crime victim pursuant to the [CVRA].”8 The mandamus panel’s order did
not suggest that the district court erred by applying the same analysis to both issues;
instead, the order indicated that the district court erred when it made the initial victim-
status determination. In my view, then, the district court properly interpreted our


      8
        In my view, the court misinterprets language from the mandamus panel’s
order where the panel directs the district court to “enter an order recognizing [M.U.]
as a crime victim pursuant to the [CVRA].” The court appears to read the above quote
as ordering the district court to recognize M.U. as a victim for purposes of applying
the CVRA—i.e., for providing restitution. Instead, I read “pursuant to the [CVRA]”
as merely citing the procedural mechanism which allowed M.U. to intervene and seek
review of the district court’s determination that he was not a victim. See 18 U.S.C.
§ 3771(d)(3) (allowing victims to “petition the court of appeals for a writ of
mandamus” and requiring the court of appeals to issue a decision “within 72 hours
after the petition has been filed”).
                                           -14-
mandate and faithfully applied it by recognizing M.U. as a victim under the
Guidelines and including M.U.’s losses when calculating Binkholder’s advisory
sentencing guidelines range.9 See United States v. Castellanos, 608 F.3d 1010, 1016
(8th Cir. 2010) (discussing the mandate rule and noting that “inferior tribunals are
bound to honor the mandate of superior courts within a single judicial system”
(quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995))).

       Moreover, I agree with the mandamus panel’s view that in this case the district
court should apply the same victim-status inquiry for sentencing and restitution. The
court points out that the Guidelines and the CVRA provide slightly different
definitions of “victim.” Under the Guidelines, the term is defined as “any person who
sustained any part of the actual loss determined under subsection (b)(1).” USSG
§ 2B1.1 cmt. n. 1. The CVRA, in contrast, defines “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). The court also notes the distinct purposes of the two laws: the
CVRA is intended to protect the rights of victims, whereas the Guidelines’ loss
enhancements are designed to measure the defendant’s culpability. Finally, the court
provides examples where the two calculations differ. See, e.g., United States v.
Alexander, 679 F.3d 721, 731 (8th Cir. 2012). The court then concludes that “the
determination of who is a victim under the CVRA is not necessarily dispositive of
who is a victim under the Sentencing Guidelines.”


      9
        Certainly the mandamus panel could have—and perhaps should have—directed
the district court to vacate only its March 3 order and to recognize M.U. as a victim
only for purposes of awarding restitution. Whether the mandamus panel erred in
directing the district court to find that M.U. was a victim for sentencing purposes is
a difficult question. I would not reach this issue because Binkholder does not raise
it, nor does he claim that the panel’s mandate violated due process. Instead,
Binkholder argues only that the district court erred in interpreting the mandamus
panel’s mandate. Because I believe that the mandamus panel did, in fact, order the
district court to find that M.U. was a victim for sentencing purposes, I would reject
Binkholder’s argument and affirm the district court’s decision.
                                        -15-
       In my view, the text of the CVRA and the Guidelines provide little basis for the
court’s position that they adopt different standards for determining whether someone
in M.U.’s position is a “victim.” The cases the court relies on establish that the
amount of loss calculated under the Guidelines can differ from the amount of
restitution owed under the CVRA. See, e.g., United States v. Niebuhr, 456 F. App’x
36, 38 (2d Cir. 2012) (unpublished). But the issue in this case is whether there is any
difference in making the threshold determination of whether M.U. is a victim in the
first place. More specifically, the issue is whether the CVRA and the Guidelines
adopt different standards for determining whether a person’s complicity in a
defendant’s illegal scheme precludes finding that the person is a “victim” of that
scheme. The court does not cite to any case suggesting that the Guidelines and the
CVRA provide different standards for resolving this issue, nor does the court explain
how any hypothetical distinction would be relevant in this case. And to the extent that
the two definitions vary, the CVRA appears to provide the narrower definition: the
Guidelines only require that a victim “sustain[] any part of the actual loss,” USSG
§ 2B1.1 cmt. n. 1, whereas the CVRA requires “direct[] and proximate[] harm[] as a
result of the commission of a Federal offense,” 18 U.S.C. § 3771(e)(2)(A). Thus,
even if there are different standards for making an initial victim-status determination,
a finding that a person is a victim under the CVRA’s narrower definition necessarily
requires finding that the person is also a victim under the apparently broader definition
in the Guidelines.

      Accordingly, I respectfully dissent from Part IV of the court’s opinion.
                      ______________________________




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