United States of America v. Jacek Radziszewski

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
May 14, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1559
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACEK RADZISZEWSKI,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 03 CR 1200
Wayne R. Andersen,
Judge.
O R D E R
Counsel for Radziszewski and Radziszewski, acting pro se, filed petitions for
rehearing on March 22, 2007 and March 30, 2007, alleging error in the district
court’s restitution calculation. In its answer to the petitions for rehearing, the
United States concedes that the district court’s restitution order should be vacated
because it likely included attorney’s fees—a consequential damage that should be
excluded from restitution calculations. See United States v. Shepard, 269 F.3d 884,
887 (7th Cir. 2001); United States v. Arvanitis, 902 F.2d 489, 497 (7th Cir. 1990). In
light of the government’s concession, we amend the slip opinion issued in the above-
entitled case on January 24, 2007, as follows:
On page 2, we replace the second line with the following: “Accordingly, we
affirm Radziszewski’s conviction, but remand for a redetermination of the
restitution amount.”

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No. 06-1559 Page 2
On page 10, we add the following footnote to the paragraph that currently
ends with “was not clearly erroneous.”:
Although any error in the district court’s actual loss calculation
is harmless with respect to the defendant’s sentence, the
calculation’s effect on the court’s restitution order cannot be
ignored. Consistent with its actual loss calculation, the district
court ordered the defendant to make restitution in the amount of
$115,979. As we have already stated, that figure included
attorney’s fees, which should not be incorporated into restitution
calculations. See United States v. Shepard, 269 F.3d 884, 887
(7th Cir. 2001); United States v. Arvanitis, 902 F.2d 489, 497
(7th Cir. 1990). The government concedes that it was error to
include attorney’s fees in the restitution calculation and that we
should vacate the district court’s restitution order. We agree,
and we therefore vacate the district court’s restitution order,
remand for a redetermination of restitution, and instruct the
district court to omit attorney’s fees from its new restitution
calculation.
On page 12, we replace the final sentence of the opinion with the
following: “For the reasons set forth above, we AFFIRM Radziszewski’s
conviction. Because, however, the district court’s restitution amount
included attorney’s fees, we vacate the district court’s restitution order
of $115,979, and remand for a redetermination of the restitution
amount.”
The clerk is directed to issue a corrected judgment. In all other
respects, the members of the original panel have voted to DENY the petitions
for rehearing.
Accordingly, the petitions for rehearing are DENIED.

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