     Case: 17-40621      Document: 00514689893         Page: 1    Date Filed: 10/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 17-40621                            October 19, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee

v.

JOEL PAUL CHILDERS,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-37-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM: *
       Pursuant to a written plea agreement, Joel Paul Childers pleaded guilty
to two counts of production of child pornography. The district court sentenced
him to a total of (1) 500 months of imprisonment; (2) ten years of supervised
release; (3) a $10,000 assessment under the Justice for Victims of Trafficking
Act of 2015 (JVTA); (4) $15,000 restitution for “PIA,” “MYA,” and “AVA”;
(5) $10,000 restitution for “VICKY”; and (6) a $200 mandatory special


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-40621     Document: 00514689893     Page: 2   Date Filed: 10/19/2018


                                  No. 17-40621

assessment.    For the first time on appeal, he challenges both the JVTA
assessment and the restitution order.
      The Government has filed a motion for summary dismissal based on the
appeal-waiver provision in Childers’s plea agreement. We deny that motion
because it is unclear under our precedent whether Childers’s appellate
challenges fall under a reserved exception in that agreement for sentences that
exceed the statutory maximum and because Childers cannot prevail even if the
appellate waiver does not bar those challenges.
      The JVTA requires a district court to impose a special assessment “of
$5,000 on any non-indigent person or entity convicted” under, as relevant here,
chapter 110 of title 18, including 18 U.S.C. § 2251, Childers’s statute of
conviction. 18 U.S.C. § 3014(a)(3). Childers argues that the district court erred
by imposing this assessment because the relevant findings in the presentence
report (PSR) indicated that he was indigent at the time of sentencing.
Although some of the PSR’s information based on Childers’s self-reported
financial status suggested that he was indigent, other financial data in the
record signaled to the contrary. Moreover, the district court’s finding that
Childers could not pay the Guidelines fine range for his offense did not
contradict its imposition of the JVTA assessment. Accordingly, Childers has
failed to show any plain error in this regard. See Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Streaty, 735 F. App’x 140, 140-41 (5th
Cir. 2018).
      Childers also contends that the district court erred by ordering him to
pay restitution to certain victims of his dismissed criminal counts. Although
he acknowledges that a district court is required to order restitution to a victim
pursuant to 18 U.S.C. § 2259, he asserts that the restitution recipients in this
case did not qualify as “victims” under § 2259(c) because they were not victims



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                                 No. 17-40621

of his specific counts of conviction. He also argues that this court reviews the
legality of a restitution order de novo, regardless of whether the challenge was
preserved.
      We need not determine the applicable standard of review because
Childers cannot prevail even under de novo review. Pursuant to his plea
agreement, Childers agreed “that restitution in this case is not limited to the
offense of conviction and may include restitution for all losses caused by [his]
criminal conduct, even if such losses resulted from crimes not charged or
admitted by [him] in the factual basis.” The district court’s restitution order
was therefore in conformity with that plea agreement and authorized under 18
U.S.C. § 3663(a)(3). See United States v. Maturin, 488 F.3d 657, 661 (5th Cir.
2007).   Childers has therefore failed to show error, plain or otherwise,
regarding the restitution order. See United States v. Lopez, 684 F. App’x 375,
376 (5th Cir. 2017).
      AFFIRMED; MOTION FOR SUMMARY DISMISSAL DENIED.




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