Resentencing after remand; Mandatory Victim Restitution Act (MVRA); 18 USC § 3663A; USSG § 5E1.1; Whether the government affirmatively waived any request for restitution at the original sentencing hearing; The scope of the remand; United States v Pembrook; The “appellate forfeiture doctrine”; Procedures for imposing restitution; § 3663A(d); FedRCrimP 32; Whether the imposition of restitution was vindictive & violated due process

The court held that the government’s affirmative representation at the original sentencing that it was not seeking restitution did not preclude it from requesting restitution under the MVRA at defendant-Miclaus’s resentencing on remand. Thus, the district court did not plainly err in allowing “the government to raise and seek restitution on remand or in ordering restitution for the first time on resentencing despite the government’s prior position.” But it failed to comply with the MVRA and Rule 32 requirements in the process of imposing restitution. Miclaus was convicted of conspiracy, wire fraud, and aggravated identity theft, among other things. At sentencing, “the district court stated, ‘I don’t think anybody is asking for restitution here,’ to which the government replied ‘No, Your Honor.’” The district imposed a 216-month sentence with no restitution. In a prior appeal, the court affirmed Miclaus’s convictions and remanded for resentencing. The district court determined it was a general remand, and the government asked that Miclaus be held jointly and severally liable with a co-conspirator for $ $853,651.99 in restitution. Miclaus told the district court that he did not object to restitution. He was resentenced to 216 months and restitution of $853,651.99 ordered, for which he was jointly and severally liable with his codefendants. In this appeal, reviewing for plain error, the court noted the circuits are split as to the scope of resentencing remand. The Sixth Circuit follows the majority position—"on a general remand, the district court is free to conduct de novo resentencing and take any evidence and hear any argument that it could have considered originally, including arguments that have been waived or forfeited.” Under Pembrook, “the appellate-forfeiture doctrine applies only to appeals and appellants in a second appeal.” It does not apply to sentencing and resentencing. The court also explained that restitution is mandatory “when a Title 18 offense involves fraud or an identifiable victim suffers pecuniary loss.” Miclaus’s 12 wire fraud convictions triggered it here. But the court held that plain error occurred when no version of his “PSR included information indicating the amount of restitution to be imposed” and he “was not privy to the underlying calculations relied on by the government and the district court.” As a result, while it affirmed the imposition of restitution, it vacated and remanded “for resentencing in conformity with the MVRA and Rule 32’s procedures.” Finally, it rejected his arguments that the imposition of restitution was “presumptively vindictive” and violated due process.