                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4814


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

          v.

JOHN P. AMAN,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.   Frederick P. Stamp,
Jr., Senior District Judge. (1:14-cr-00003-FPS-JSK-1)


Submitted:   June 16, 2015                 Decided:   July 7, 2015


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellant. John P. Aman, Appellee Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        John P. Aman pled guilty to one count of bank fraud.                               The

district court sentenced Aman to 21 months’ imprisonment and

ordered him to pay restitution to Freedom Bank and Everest National

Insurance         Company.        The     district      court      declined       to    issue

restitution in favor of other entities, ruling that their failure

to file a declaration of loss statement precluded a restitution

award        to   those    entities.          The   Government        noted    an      appeal,

challenging the restitution order. 1                Because the Mandatory Victims

Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A(a)(1), (c)(1)

(2012),       does   not    condition         restitution      upon     the   filing     of   a

statement of loss, we vacate the restitution order and remand for

further proceedings. 2

        From October 2002 to November 2006, Aman, using the power of

attorney given him by Pete Olean, obtained several loans from

Huntington Bank and from West Union Bank under Olean’s name and

using Olean’s stock as collateral.                      In 2007, Aman took out two

loans from Freedom Bank, in the amounts of $114,258 and $245,000.

The proceeds of these loans were used to pay off the Huntington

Bank        and   West    Union   Bank    loans,    and     to    pay    Aman’s     personal



        1
       Aman expressly declined counsel on appeal and has not filed
a brief.
        2
       The parties have                 not    raised    any     challenges       to    Aman’s
conviction and sentence.

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expenses.    The Freedom Bank loans were also in Olean’s name and

Aman used Olean’s stock as collateral.

     In April 2009, Aman defaulted on the Freedom Bank loans and

Freedom    Bank   sold    the   collateral      for    $372,164,     in    partial

satisfaction of the outstanding debt.            The balance due after the

sale of the collateral was $49,021.97.

     After Olean discovered that Aman had taken out the loans at

Freedom Bank, he filed a civil action against Huntington, West

Union, and Freedom Banks alleging fraud and negligence in relation

to Aman’s use of his power of attorney and the banks’ issuance of

loans. The parties settled this lawsuit for $300,000, with Freedom

Bank agreeing to pay Olean $83,333.33, and the other two banks

splitting the balance.

     Aman was indicted on 11 counts of bank fraud, 18 U.S.C. § 1344

(2012), in connection with his use of Pete Olean’s power of

attorney to obtain loans from Huntington, West Union, and Freedom

Banks.      He pled guilty to Count Ten, which alleged that he

submitted a fraudulent loan application in the amount of $245,000

to Freedom Bank.

     The    probation     officer   identified        as   victims   of     Aman’s

offense, the estate of Pete Olean and all three banks.                    However,

the probation officer noted that not all of the victims had

returned    declaration    of   loss    forms   and    therefore     restitution

amounts were not computed.             For purposes of restitution, the

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Government asserted that Olean’s estate and the three banks were

all victims of the offense.

     The district court noted that only Freedom Bank had filed a

loss declaration, and therefore it was the only identified victim.

The court reasoned that a victim who did not submit a loss

declaration “may be precluded” from any restitution award.

     After hearing argument from the Government as to why the other

banks and Olean’s estate were victims for restitution purposes,

the court awarded $49,021.97 in restitution to Freedom Bank and

$83,333.33—the amount of the settlement payment from Freedom Bank—

to Everest National Insurance Company, Freedom’s insurer, which

was identified on the loss declaration submitted by Freedom.      On

appeal, the Government contends that the district court erred by

refusing to consider restitution for victims who has not filed

proofs of loss and by denying the Government the opportunity to

present evidence in support of restitution amounts for the banks

and the estate of Pete Olean.

     The MVRA requires the district court to order restitution for

all losses that result to all victims of a criminal scheme or

conspiracy.   18 U.S.C. § 3663A(a)(1), (c)(1) (2012).      The court

must award restitution where the defendant is convicted of an

offense against property and the victim suffers pecuniary loss.

18 U.S.C. § 3663A(c)(1) (2012).   Restitution must include both the

victim’s   “expenses   incurred   during   participation    in   the

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investigation or prosecution of the offense” and the value of any

stolen   property   (if    return   of   the   property   “is   impossible,

impracticable, or inadequate”).          § 3663A(b)(1)(B), (b)(4).      The

Government bears the burden of establishing by the preponderance

of the evidence the status of a victim and the amount of the

restitution. 18 U.S.C. § 3664(e) (2012); United States v. Freeman,

741 F.3d 426, 435 (4th Cir. 2014).

     Contrary to the ruling by the district court, the MVRA does

not require victims to submit a proof of loss form as a condition

of receiving a restitution award.        While the statute provides that

probation officers must notify victims of the “opportunity” to

submit information concerning loss and restitution, 18 U.S.C.

§ 3664(d)(2)(A)(iii), (vi) (2012), the filing of such information

is not a condition precedent to a restitution award.            Rather, the

award of restitution to victims is mandatory. See United States v.

Newsome, 322 F.3d 328, 341 (4th Cir. 2003) (“MVRA requires that

the court enter an order of full restitution when the loss is

caused by a property offense.”) (emphasis in original).            In fact,

the victim is “not required to participate in any phase of a

restitution order.”       18 U.S.C. § 3664(g)(1) (2012); United States

v. Speakman, 594 F.3d 1165, 1176 (10th Cir. 2010).              Indeed, the

Government—not the victim—bears the burden of proving that a victim

is entitled to restitution and the amount of the restitution due.

18 U.S.C. § 3664(e).

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      Because    restitution    is    mandatory      without       regard     to     a

statement   or   proof   submitted    by   victims      of   the   offense,        see

Speakman, 594 F.3d at 1178 (providing that court cannot conclude

that victim renounced restitution without a clear statement to

that effect by the victim); see also United States v. Curran, 525

F.3d 74, 84 (1st Cir. 2008) (stating that MVRA “provides for

mandatory   restitution     regardless      of    the    preference         of     the

victims”), we conclude that the district court erred by requiring

a declaration of loss statement as a condition to an award of

restitution.      Accordingly, we vacate the restitution portion of

Aman’s criminal judgment and remand to the district court for

further proceedings.      On remand, after affording the Government

the opportunity to present evidence, the district court is directed

to consider whether Huntington Bank, West Union Bank, and the

estate of Pete Olean qualify as victims of Aman’s offense of

conviction and the amount, if any, of restitution due to each of

them.   See 18 U.S.C. § 3664(e); U.S. Sentencing Guidelines Manual

§ 6A1.3, p.s. (2013) (“When any factor important to the sentencing

determination is reasonably in dispute, the parties shall be given

an   adequate    opportunity   to    present     information       to   the      court

regarding that factor.”).      We dispense with oral argument because

the facts and legal contentions are adequately presented in the




                                       6
materials   before   this   court   and   argument   would   not   aid   the

decisional process.

                                                     VACATED AND REMANDED




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