Acquiescence to a Restitution Credit at Sentencing Waives Appellate Challenge (and the Defendant Bears the Burden to Prove Offsets)

1. Introduction

Case: United States v. Sean Grusd (7th Cir. Jan. 14, 2026).
Parties: United States (Plaintiff-Appellee) v. Sean Grusd (Defendant-Appellant).
Core subject: Mandatory restitution under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, and whether a defendant may challenge on appeal a restitution “credit” reflected in the final restitution figure when he did not object at sentencing.

Grusd pled guilty to wire fraud (18 U.S.C. § 1343) arising from a two-year investor fraud. His plea agreement and the PSR aligned on a baseline restitution amount of approximately $23,155,000 to 15 sets of victims, subject to “any credit for funds repaid prior to sentencing.” At sentencing, the government announced an updated restitution figure of $21,557,739, reflecting an approximately $1.6 million credit attributed to recoveries/returns. Grusd did not object.

On appeal, Grusd argued the district court plainly erred by applying the $1.6 million credit without sufficient substantiation or factual findings. The Seventh Circuit rejected the challenge, primarily on waiver grounds, and alternatively held the claim would fail under plain-error review.

2. Summary of the Opinion

The Seventh Circuit affirmed the restitution order. It held:

• Waiver: Grusd waived his appellate challenge by knowingly and intentionally acquiescing to the $1.6 million restitution credit at sentencing—after multiple opportunities to object and after defense counsel affirmatively engaged with the topic.
• Alternative holding (plain error): Even if the issue were merely forfeited (not waived), Grusd could not satisfy the elements of plain-error review because (i) the district court reasonably relied on the parties’ representations and (ii) the alleged “error” reduced his restitution obligation, amounting (if anything) to a windfall rather than prejudice to substantial rights or harm to the integrity of the proceedings.

3. Analysis

3.1. Precedents Cited

Waiver vs. forfeiture framework

The opinion’s doctrinal entry point is the familiar distinction between waiver (intentional relinquishment) and forfeiture (inadvertent failure to object), and the consequences for appellate review.

• United States v. Harris, 102 F.4th 847 (7th Cir. 2024): Quoted for the rule that “Waiver occurs when a party intentionally relinquishes a known right” and that waiver “extinguishes appellate review.” In Grusd, the court uses this as the governing definition and consequence: once waiver is found, the merits are not reached.
• United States v. Flores, 929 F.3d 443 (7th Cir. 2019): Provides both (a) the forfeiture definition and (b) the method to distinguish waiver from forfeiture at sentencing: the court examines “each omission in light of the surrounding circumstances” to determine if the decision not to object was knowing and intentional. Grusd is an application of Flores to a restitution-credit scenario.

“Missed opportunities” and notice-based waiver in sentencing

The court emphasizes a practical indicia-based approach: repeated silence in the face of explicit notice can be evidence of intentional relinquishment.

• United States v. Hernandez, 44 F.4th 1053 (7th Cir. 2022): Cited for the proposition that a “pattern of ‘missed opportunities’” and “inaction in the face of notice” points to waiver rather than forfeiture. Grusd finds waiver where the credit was raised early, discussed by counsel, then incorporated into the final number—yet no objection was lodged.
• United States v. Mansfield, 21 F.4th 946 (7th Cir. 2021): Quoted via Hernandez to support the “missed opportunities” concept. The citation reinforces that waiver can be inferred from the procedural posture and counsel’s conduct, not only from explicit “I waive” statements.

Burden of proof for restitution offsets/credits

The Seventh Circuit frames Grusd’s appellate theory as especially weak because the defendant bears the burden of proving an offset—so demanding that the court require “more evidence” is backwards when the defendant elected not to offer it.

• United States v. Anderson, 866 F.3d 761 (7th Cir. 2017): Quoted for the rule: “when offset is the issue, the defendant bears the burden of proof because he knows best what he returned to the victim.” In Grusd, this supports both (i) waiver (strategic acquiescence to a favorable credit without evidentiary burden) and (ii) the alternative plain-error analysis (the court was not obliged to force additional proof from the government for a credit the defendant benefited from and was positioned to substantiate).
• United States v. Malone, 747 F.3d 481 (7th Cir. 2014): Reinforces that it is “appropriate to place on the defendant the burden of proving that the loss amount should be reduced by compensation received by the victim from the defendant.” The opinion leverages Malone to underscore that Grusd’s appellate posture conflicts with established allocation of proof.

Plain-error review and “asking for what you got”

• United States v. Page, 123 F.4th 851 (7th Cir. 2024) (en banc): Provides the four-part plain-error test: (1) error, (2) plain, (3) affects substantial rights, (4) seriously affects fairness/integrity/public reputation. The court uses Page to structure the alternative holding: Grusd cannot clear any step, especially prejudice and the integrity prong, because the credit lowered his restitution.
• United States v. Pappas, 409 F.3d 828 (7th Cir. 2005): Cited for the practical principle that a judge does not err by ordering “exactly what the parties asked.” In context, the court treated the restitution figure as a joint representation at sentencing; absent contemporaneous objection, it was not erroneous for the judge to adopt it.

3.2. Legal Reasoning

(A) Why the court found waiver

The court’s waiver analysis is fact-intensive and procedural:

1. Notice on the record: The prosecutor flagged the restitution credit at the outset, describing it as a “small recovery from third parties,” “about a million-six,” and stated defense counsel asked that it be conveyed to the court.
2. Defense counsel’s response signaled acceptance, not dispute: Counsel did not correct the “joint representation” characterization. Instead, he explained the recovery was “voluntary” and tied to “civil stuff,” implicitly validating the existence and rough magnitude of the credit.
3. Multiple opportunities to object: The credit resurfaced when the court requested “the precise updated figure” and the prosecutor gave the final number ($21,557,739). Grusd still did not object. When the judge asked if any issues remained, both sides said “No.”
4. Strategic benefit: The court highlighted a practical incentive: because the defendant bears the burden to prove offsets, acquiescing to a favorable credit spared Grusd from producing supporting evidence. That benefit supports the conclusion that silence was a knowing, intentional choice—i.e., waiver.

The takeaway is a functional rule: when the defendant helps tee up (or at least affirmatively accepts) a restitution adjustment at sentencing and then repeatedly declines to object, the Seventh Circuit will treat an appellate challenge as waived, not merely forfeited.

(B) Why the claim would fail even under plain-error review

The alternative holding proceeds from two central points:

1. No clear error in relying on party representations (especially for a defendant-favorable adjustment): The court deemed it “appropriate (and efficient)” for the judge to rely on what was presented as a joint figure on the record—particularly where the defendant did not contest it and where the adjustment reduced his obligation.
2. No prejudice, no integrity harm: Plain error requires an effect on substantial rights and a serious blow to the fairness/integrity of proceedings. Grusd’s argument, the court reasoned, is internally unstable: he suggests it would have been acceptable to order the full $23.2 million, yet improper to order the smaller amount. If anything, an unsupported credit would advantage him; it would not deprive him of a protected interest in a manner warranting appellate correction under the plain-error standard.

3.3. Impact

(A) Restitution litigation practice in the Seventh Circuit

Grusd strengthens incentives for defendants (and counsel) to make a clear record at sentencing regarding restitution calculations and credits:

• Silence can be waiver when the record reflects notice and repeated opportunities to object. The court’s reliance on the “missed opportunities” pattern signals that failure to object to restitution mechanics—particularly after explicit discussion—may forfeit not only de novo review but all review.
• Offsets/credits are the defendant’s problem to prove. The decision underscores the practical consequence of Anderson and Malone: a defendant who wants a smaller restitution number must be prepared to substantiate the reduction. If the defendant instead accepts a proposed credit at sentencing, he will likely be locked into it on appeal.

(B) MVRA administration and judicial efficiency

The opinion endorses the common sentencing practice of adopting a stipulated or jointly represented restitution figure without mini-trials on uncontested credits. This matters under the MVRA because restitution can involve numerous victims and complex financial histories; the court’s approach supports streamlined resolution where the parties do not actually dispute the math.

(C) Appellate posture: “benefit” errors are especially hard to win

The alternative plain-error discussion adds an important practical lesson: when an alleged sentencing “error” reduces a defendant’s financial obligation, establishing prejudice and the integrity prong is exceptionally difficult. Grusd effectively warns appellants that appellate courts are unlikely to unwind a restitution calculation in a way that would increase the defendant’s burden—especially when the challenge was not preserved below.

4. Complex Concepts Simplified

• Restitution (MVRA): A court-ordered payment to compensate victims for losses caused by the offense. Under 18 U.S.C. § 3663A, restitution is mandatory for many fraud offenses.
• Restitution “credit” / “offset”: A reduction in the restitution amount to account for money or property already returned to the victims before sentencing (or otherwise credited under statutory rules). In Grusd, the “about a million-six” lowered the final order.
• Waiver vs. forfeiture:
  • Waiver = intentional choice not to assert a right; it blocks appellate review.
  • Forfeiture = inadvertent failure to object; it permits only plain-error review.
• Plain-error review: A demanding appellate standard applied to unpreserved claims. The appellant must show a clear error that likely changed the outcome and seriously harmed the judicial process’s fairness or reputation.
• Burden of proof for offsets: When the question is how much restitution should be reduced due to repayments/returns, the defendant must prove the amount of the reduction because he is best positioned to know what he returned and when.

5. Conclusion

United States v. Sean Grusd stands for a clear procedural-and-practical rule in restitution disputes: a defendant who knowingly acquiesces at sentencing to a restitution credit—after notice and repeated opportunities to object—waives any later appellate challenge to that credit. The decision also reinforces that the defendant bears the burden of proving restitution offsets and that, even absent waiver, a defendant-favorable restitution “error” is unlikely to satisfy the prejudice and integrity requirements of plain-error review. In the broader MVRA landscape, the opinion validates reliance on undisputed party representations to efficiently finalize restitution amounts, while placing the onus on litigants to create a timely record if they truly contest the calculation.