152125P.pdf   08/12/2016  United States  v.  Bryan Binkholder
   U.S. Court of Appeals Case No:  15-2125
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Kelly, Author, with Bright and Gruender, Circuit Judges] 
   Criminal case - Sentencing. Defendant's appeal waiver did not preclude the 
   appeal as he was sentenced using a higher total offense level than was 
   contemplated in the agreement; the district court did not abuse its 
   discretion by denying defendant an acceptance-of-responsibility reduction 
   based on his post-plea misconduct; while this court's writ required the 
   district court to recognize a particular person as a victim under the 
   Crime Victim's' Rights Act, the writ did not require the district court to 
   find the person as a victim for purposes of the Guidelines; the court 
   cannot, on this record, find that the district court properly determined 
   whether the person was a victim under Guidelines Sec. 2B1.1 such that the 
   person's losses should increase defendant's offense level; on remand, the 
   court should determine the person was a victim under the Guidelines and, 
   if necessary, resentence defendant; district court correctly calculated 
   restitution; claim of ineffective assistance of counsel would not be 
   considered on direct appeal. Judge Gruender, concurring in part and 
   dissenting in part.