MEMORANDUM *

The government concedes the district court’s error in applying a statute not in effect at the time of the offenses of which Ventura was convicted, but argues that he waived this issue by not preserving it in his first appeal. Ventura’s resentencing on remand from that appeal, however, was a new proceeding and, as the government acknowledged at argument, the district court was free to decline to enter a restitution award. Ventura was not required to anticipate that the district court might fail to apply the proper statute and his counsel adequately preserved the position that restitution should be subject to the terms of the prior version of the statute.

VACATED and REMANDED.