     Case: 16-20570   Document: 00514247528       Page: 1   Date Filed: 11/22/2017




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

                                   No. 16-20570                          FILED
                                                                 November 22, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff–Appellee,

v.

FRANCIS YUVINI GUERRA PLEITEZ, also known as Colochin, also known
as Flaco,

             Defendant–Appellant.




                Appeals from the United States District Court
                     for the Southern District of Texas


Before DAVIS, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      This Court is asked to determine whether the entry of a final restitution
order or an amended judgment that imposes a more onerous restitution award
under 18 U.S.C. § 3664(d)(5) constitutes a “critical stage” of trial proceedings
requiring access to counsel. Defendant–Appellant Francis Yuvini Guerra
Pleitez (“Pleitez”) entered into a plea agreement for a crime mandating
restitution and waived his right to appeal all claims other than claims of
ineffective assistance of counsel. At sentencing, the district court issued a
partial restitution order but deferred its final determination of restitution
pending further investigation by the probation officer.
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                                  No. 16-20570
      After Pleitez’s trial counsel was dismissed, but before his appellate
counsel was appointed, the probation officer submitted a Fourth Addendum to
Pleitez’s presentence report (“PSR”) recommending a more onerous restitution
award based on a new method of calculation. The district court amended the
restitution order to reflect the updated findings in the Fourth Addendum.
Subsequently, the court entered an amended judgment on the same day
Pleitez’s appellate counsel was appointed. On appeal, Pleitez argues that he
was unconstitutionally deprived of the effective assistance of counsel during a
critical stage of trial proceedings. Because we find that the acceptance of an
addendum to a PSR recommending a more onerous restitution award
constitutes a critical stage, we VACATE and REMAND.
                              I. BACKGROUND
      On August 7, 2015, Pleitez pleaded guilty to conspiracy to engage in sex
trafficking of children by force, fraud, or coercion. He agreed as part of his plea
agreement to waive the right to appeal his conviction and sentence but
reserved the right to raise claims of ineffective assistance of counsel. He also
agreed to pay restitution to the victims in an amount to be determined by the
district court and, subject to the appeal waiver provision, waived the right to
challenge the restitution order on any ground.
      In order to assist the trial court in determining the restitution amount,
18 U.S.C. § 3664 requires the probation officer to complete a PSR that contains
sufficient information for the court to order restitution, including “a complete
accounting of the losses to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic circumstances of each
defendant.” 18 U.S.C. § 3664(a); see also Fed. R. Crim. P. 32(c)(1)(B). The
original PSR, prepared on May 13, 2016, included victim interviews and
specified types of victim losses that could be ordered as restitution but reported
that no response had been received from the victims. Pleitez filed objections to
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                                      No. 16-20570
the PSR on June 8, 2016, arguing that various sentencing enhancements
should not apply. The First Addendum to the PSR, filed on June 24, 2016,
addressed Pleitez’s objections, and noted that mandatory restitution applied.
The Second Addendum to the PSR was filed on the day of the sentencing
hearing, August 17, 2016, and reflects three of the victims’ claims for
restitution: victim L.T.S. claiming $71,240, 1 victim I.H. claiming $18,380, and
victim M.G.C. claiming $490, for a total of $90,110 in restitution.
       At the sentencing hearing, Pleitez did not object to M.G.C.’s claim for
$490 or to the restitution owed to victims for future counseling expenses. 2 He
did, however, challenge the claims by L.T.S. and I.H. to the extent they were
based on “lost wages;” 3 according to Pleitez, the victims were not entitled to
restitution for lost wages because they worked illegal jobs and were not legally
present in the United States. The probation officer maintained that victims
could receive either the value of prostitution services rendered or the wages
they would have earned for their services. The court acknowledged defense
counsel’s position, reviewed his filings, and understood defense counsel’s
objection to paying $71,240 to L.T.S. and $18,380 to I.H. to the extent these
figures were based on lost wages. But the court refrained from ruling, stating
that it would first “take the probation department’s research” into account. The
court sentenced Pleitez to 210 months’ imprisonment, five years’ supervised
release, and ordered $490 in restitution for M.G.C.’s claim. Regarding the
$71,240 for L.T.S. and $18,380 to I.H., the court stated it would withhold its
decision based on its “statutory or case interpretation” with the assistance of



       1 There is some confusion as to whether L.T.S. claimed $71,120 or $71,240. The Second
Addendum valued her loss at $71,120, but L.T.S. actually reported a loss of $71,240. Because
the district court based its decision on the latter amount, we use $71,240 throughout.
       2 L.T.S. claimed $26,000 in counseling or therapy costs; I.H. claimed $3,300 in

counseling or therapy costs.
       3 L.T.S. claimed $45,240 in lost wages; I.H. claimed $15,080 in lost wages.

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                                 No. 16-20570
the parties and the probation office. The court said it would consider anything
in writing defense counsel submitted after the sentencing hearing, but added
that the defense counsel was not obligated to submit anything further.
      On August 24, 2016, the probation officer filed the Third Addendum to
the PSR after sentencing. The Third Addendum reported that it was
appropriate to award restitution to illegal aliens, and trafficking victims are
entitled to “the greater of the gross income or value to the defendant of the
victim’s services or labor or the value of the victim’s labor as guaranteed under
the minimum wage and overtime guarantees of the Fair Labor Standards Act.”
The probation officer estimated that the value of the victims’ services likely
exceeded $120,000 but, because it was speculative, recommended that the
court use the lower lost-wage amounts previously requested by the victims.
Pleitez again filed objections on August 25, 2016, challenging the inclusion of
lost wages and arguing that the proposed amount was speculative, ambiguous,
and impermissibly based on victim impact statements. And he filed a notice of
appeal the following day. On August 30, 2016, the district court permitted
Pleitez’s trial counsel to withdraw.
      On September 6, 2016, while Pleitez was not represented by counsel, the
probation officer filed the Fourth Addendum responding to Pleitez’s objections.
But the Fourth Addendum went further. The lost wages claimed by L.T.S. and
I.H. at sentencing were based on a computation of minimum wage under the
Fair Labor Standards Act (“FLSA”), but the Fourth Addendum based its
recommendation of restitution owed for lost wages on a new method of
calculation: estimating wages the victims actually earned for their services by
relying on the victims’ statements regarding the number of hours worked, the
amount charged for each sex act, and the number of customers. As a result, the
Addendum concluded that an “extremely conservative” calculation estimated
that L.T.S. generated $50,400 in gross income and I.H. generated $33,600 in
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                                    No. 16-20570
gross income. Because these amounts were higher than the FLSA estimates
proposed at sentencing, the Addendum recommended an increased mandatory
restitution award of $76,400 for L.T.S. and $36,900 for I.H. 4 The same day, the
district court entered an order for restitution in the amount of $76,400 to L.T.S.
and $36,900 to I.H., reflecting the Fourth Addendum’s recommendation. The
district court also signed an amended judgment ordering Pleitez to pay
restitution of $490 to M.G.C., $76,400 to L.T.S., and $36,900 to I.H., for a total
of $113,790 in restitution.
      After spending nine days without counsel, appellate counsel was
appointed for Pleitez on September 9, 2016. That same day, the district court
entered an Amended Final Judgment reflecting a final restitution award of
$113,790. Pleitez then timely filed a supplemental notice of appeal.
                                  II. DISCUSSION
      Pleitez appeals the judgment of conviction and sentence of imprisonment
entered on September 9, 2016. This Court has jurisdiction over the district
court’s final judgment pursuant to 28 U.S.C. § 1291. Pleitez’s appeal presents
two issues: (1) whether Pleitez’s appeal is barred by the appeal waiver in his
plea agreement; and (2) whether the district court violated Pleitez’s Sixth
Amendment right to counsel by amending the judgment and issuing a new
restitution order during the nine-day period where Pleitez was not represented
by either trial or appellate counsel.
A.    The Appeal Waiver
      The Government argues that Pleitez’s appeal is barred by the appeal
waiver provision of his plea agreement. “This court reviews de novo whether
an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754



      4  These amounts combined the lost wages estimate with counseling and therapy costs
that the Defendant did not dispute. See supra note 2.
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                                  No. 16-20570
(5th Cir. 2014). In order to determine whether an appeal waiver applies to the
issues presented, this Court “ascertain[s] the ordinary meaning of the waiver
provision.” United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). The Fifth
Circuit “construe[s] appeal waivers narrowly, and against the government.”
United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). Because we find
that Pleitez’s appeal falls within the waiver provision’s exception for ineffective
assistance of counsel claims, we may hear this case.
      A criminal defendant may waive his statutory right to appeal in a valid
plea agreement. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006)
(holding appellate waivers are enforceable if invoked by the United States).
“An appeal waiver bars an appeal if the waiver (1) was knowing and voluntary
and (2) applies to the circumstances at hand, based on the plain language of
the agreement.” United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). “A
defendant must know that he had a right to appeal his sentence and that he
was giving up that right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir.
1994) (internal quotation marks and citation omitted).
      Both parties agree that the appeal waiver contained in Pleitez’s plea
agreement was knowing and voluntary. But Pleitez and the Government
disagree as to the scope of the waiver. The text of the appeal waiver is found
in paragraph 7 of the plea agreement: Pleitez waived “the right to appeal or
‘collaterally attack’ the conviction and sentence, except that Defendant does
not waive the right to raise a claim of ineffective assistance of counsel on direct
appeal . . . or on collateral review.” Pleitez also agreed in paragraph 21 of the
plea agreement to “pay full restitution to the victim(s) regardless of the
count(s) of conviction” as determined by the court. Additionally, subject to the
provisions of paragraph 7, Pleitez waived “the right to challenge in any
manner, including by direct appeal or in a collateral proceeding, the restitution
order imposed by the Court.”
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                                 No. 16-20570
      Pleitez contends that his claim falls within the appeal waiver’s exception
for claims of ineffective assistance of counsel. He does not contest that he is
prevented from appealing the restitution order itself. See Keele, 755 F.3d at
756 (finding that an appeal waiver barred defendant’s right to appeal the
restitution order where the agreement explicitly referenced restitution). He
emphasizes that the restitution amount was vigorously contested, and the final
restitution order and the Fourth Addendum on which it was based were
entered after trial counsel withdrew but before appellate counsel was
appointed. Additionally, because the final restitution order increased his
penalty to be “more onerous,” Pleitez argues he was not just denied assistance
of counsel, but “he did not have a lawyer at a critical stage.” By contrast, the
Government argues that because “there was no violation of Pleitez’s trial
rights,” the waiver should be enforced and the direct appeal dismissed.
      The denial of counsel is properly characterized as an ineffective
assistance of counsel claim. See United States v. Cronic, 466 U.S. 648, 654
(1984) (“[I]t has long been recognized that the right to counsel is the right to
the effective assistance of counsel.”) (internal quotation marks and citation
omitted). To the extent that Pleitez contends that the absence of counsel during
a critical stage deprived him of his Sixth Amendment right to counsel, the
claim falls within the appeal waiver exception. See United States v. Hillsman,
480 F.3d 333, 335 (5th Cir. 2007) (“[T]he accused is entitled to the assistance
of counsel not only at the trial itself, but at all ‘critical stages’ of his
prosecution.”). Thus, we may review his denial of counsel claim.
B.    Sixth Amendment Claim
      Pleitez argues that amending the judgment and increasing the
restitution award during a gap in representation between trial and appellate
counsel violated his Sixth Amendment right to counsel. “This Court reviews
constitutional challenges and questions of law de novo.” United States v.
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                                  No. 16-20570
Robles, 445 F. App’x 771, 776 (5th Cir. 2011) (citing United States v. Baymon,
312 F.3d 725, 727 (5th Cir. 2002); United States v. Walker, 148 F.3d 518, 528
(5th Cir. 1998)). Whether a defendant’s right to counsel was constructively
denied “is a mixed question of law and fact, subject to de novo review.”
Childress v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997). In support of his
argument, Pleitez observes that the sentencing and assessment of a criminal
penalty is a critical stage, and restitution imposed pursuant to § 3664 is a
criminal penalty. And he contends that he had a right to be present for new
sentencing or sentence modifications that made the original sentence “more
onerous.” Here, the modified restitution amount was more onerous, and Pleitez
needed counsel to raise objections to the Fourth Addendum. Thus, he asserts
that the consideration and acceptance of the Fourth Addendum constituted a
critical stage of trial proceedings during which he was denied access to an
attorney. We agree.
      The Sixth Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. This right is not limited to the trial itself; an
accused is entitled to assistance of counsel at all “critical stages” of criminal
proceedings. Montejo v. Louisiana, 556 U.S. 778, 786 (2009); Hillsman, 480
F.3d at 335. “The purpose of the Sixth Amendment guarantee of counsel is to
ensure that a defendant has the assistance necessary to justify reliance on the
outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668, 691–92
(1984). Thus, an accused is entitled to assistance of an attorney who plays the
adversarial role necessary to ensure that the proceeding itself is fair. Id. at
685. Ordinarily, an ineffective assistance of counsel claim requires a two-prong
showing    that   “representation   fell       below    an   objective   standard     of
reasonableness” and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
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                                       No. 16-20570
Id. at 688, 694. However, “a trial is unfair if the accused is denied counsel at a
critical stage of his trial,” and no showing of prejudice is required. Cronic, 466
U.S. at 659. If counsel for the accused is absent during a critical stage, then
there is a presumption of prejudice and “reversal is automatic.” Hillsman, 480
F.3d at 335 (quoting Holloway v. Arkansas, 435 U.S. 475, 489 (1978); Cronic,
466 U.S. at 659 n.25).
       Neither the Supreme Court nor the Fifth Circuit have delineated all of
the critical stages at which a defendant is entitled to the presence of counsel
under the Sixth Amendment. A stage is determined “critical” where
circumstances indicate that counsel’s presence is necessary to ensure a fair
process. See Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 212 (2008) (“[W]hat
makes a stage critical is what shows the need for counsel’s presence.”). First,
the Supreme Court and this Circuit have found critical stages where an
accused is confronting his adversary, requiring the assistance of counsel to
ensure a fair adversarial process. 5 A critical stage in the proceeding is thus one
where “the accused require[s] aid in coping with legal problems or assistance
in meeting his adversary.” McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011)
(quoting United States v. Ash, 413 U.S. 300, 311 (1973); Mempa v. Rhay, 389
U.S. 128, 134–35 (1967)). Second, “[t]o justify a particular stage as ‘critical,’
th[is] Court has not required [a] defendant to explain how having counsel
would have altered the outcome of his specific case. Rather, th[is] Court has


       5  See, e.g., Estelle v. Smith, 451 U.S. 454, 470 (1981) (court-ordered psychiatric
examinations); Geders v. United States, 425 U.S. 80, 91 (1976) (overnight recess between
direct and cross examination of defendant); Herring v. New York, 422 U.S. 853, 858 (1975)
(closing summation); Massiah v. United States, 377 U.S. 201, 205–06 (1964) (post-indictment
interrogations); Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (arraignments); United States
v. Russell, 205 F.3d 768, 772 (5th Cir. 2000) (testimony implicating defendant in conspiracy
presented during counsel’s two-day absence due to illness); Tucker v. Day, 969 F.2d 155, 159
(5th Cir. 1992) (constructive absence of counsel at re-sentencing hearing); Gomez v. Thaler,
526 F. App’x 355, 359 n.3 (5th Cir. 2013) (hinting, but declining to hold in the habeas context,
that a suppression hearing is a critical stage in a criminal proceeding).
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                                  No. 16-20570
looked to whether ‘the substantial rights of a defendant may be affected’ during
that type of proceeding.” Burdine v. Johnson, 262 F.3d 336, 347 (5th Cir. 2001)
(en banc) (quoting United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991));
see also Mempa, 389 U.S. at 134. For this reason, “[s]entencing is a critical
stage of a criminal proceeding.” Taylor, 933 F.2d at 312.
      Pleitez pleaded guilty to conspiracy to engage in sex trafficking of
children or by force, fraud or coercion, in violation of 18 U.S.C. § 1594(c).
Pursuant to 18 U.S.C. § 1593(a), mandatory restitution applied to Pleitez’s
sentence. Under the mandatory restitution provision, Pleitez was required “to
pay the victim (through the appropriate court mechanism) the full amount of
the victim’s losses, as determined by the court.” 18 U.S.C. § 1593(b)(1); see also
18 U.S.C. § 3664(f)(1)(A). The “full amount of the victim’s losses” includes “the
greater of the gross income or value to the defendant of the victim’s services or
labor or the value of the victim’s labor as guaranteed under the minimum wage
and overtime guarantees of the Fair Labor Standards Act.” 18 U.S.C.
§ 1593(b)(3). This Circuit recognizes that mandatory restitution is a criminal
penalty and part of a criminal sentence. United States v. Adams, 363 F.3d 363,
365 (5th Cir. 2004).
      An order of restitution under § 1593 is “issued and enforced in
accordance with section 3664.” 18 U.S.C. § 1593(b)(2). In order to assist the
trial court in determining mandatory restitution owed to victims, § 3664
requires the probation officer to complete a PSR. The PSR must contain
sufficient information for the court to order restitution, including “a complete
accounting of the losses to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic circumstances of each
defendant.” 18 U.S.C. § 3664(a); see also Fed. R. Crim. P. 32(c)(1)(B). The PSR
must be disclosed to the criminal defendant and the government attorney. See
18 U.S.C. § 3664(b); Fed. R. Crim. P. 32(i)(1). One purpose of the disclosure
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rule is to give a criminal defendant an opportunity to ensure that the report is
“completely accurate in every material respect.” United States v. Missio, 597
F.2d 60, 61 (5th Cir. 1979) (citation omitted). But the determination of
restitution does not end there. Section 3664 further contemplates the
possibility of increased restitution determinations after sentencing:
      If the victim’s losses are not ascertainable by the date that is 10
      days prior to sentencing, the attorney for the Government or the
      probation officer shall so inform the court, and the court shall set
      a date for the final determination of the victim’s losses, not to
      exceed 90 days after sentencing. If the victim subsequently
      discovers further losses, the victim shall have 60 days after
      discovery of those losses in which to petition the court for an
      amended restitution order. Such order may be granted only upon
      a showing of good cause for the failure to include such losses in the
      initial claim for restitutionary relief.
18 U.S.C. § 3664(d)(5). The statute provides further guidance to courts when
determining the amount of restitution owed: “After reviewing the report of the
probation officer, the court may require additional documentation or hear
testimony” in calculating a final determination of restitution. Id. § 3664(d)(4).
      While the statute does not explicitly require a hearing for increased
restitution awards, it does imply that a defendant is entitled to an opportunity
to be heard. Section 3664 states that “[a]fter reviewing the report of the
probation officer, the court may require additional documentation or hear
testimony.” Id. § 3664(d)(4) (emphasis added). The permissive tone seems to
suggest that a district court has discretion to provide an opportunity to respond
to a PSR. But ultimately, we do not believe that this language grants the
district court discretion to increase a restitution award outside the presence of
the defendant and counsel. Indeed, § 3664 elsewhere implies that a hearing is
required before accepting the restitution recommendation in a PSR. Before
issuing a final restitution determination, the sentencing court must resolve
restitution issues, including any objections raised by a defendant. See id.
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                                 No. 16-20570
§ 3664(e) (“Any dispute as to the proper amount or type of restitution [is]
resolved by the court by the preponderance of the evidence.”). And as Pleitez
argues, § 3664 requires a court to “set a date for the final determination of the
victim’s losses” before increasing the restitution award, implying that a
defendant should be afforded the opportunity to be heard before a court adopts
a PSR’s recommendation. Id. § 3664(d)(5). Furthermore, Rule 32(i) governing
sentencing requires that a court “verify that the defendant and the defendant’s
attorney have read and discussed the presentence report and any addendum
to the report.” Fed. R. Crim. P. 32(i)(1)(A) (emphasis added). Thus, the
statutory scheme requires a district court provide a criminal defendant with
an opportunity to be heard before imposing mandatory restitution.
      We conclude that the final determination of a mandatory restitution
award under § 3664(d)(5) constitutes a critical stage during which a defendant
is entitled to the assistance of counsel. A defendant filing objections to a PSR
addendum “require[s] aid in coping with legal problems or assistance in
meeting his adversary.” McAfee, 630 F.3d at 391. Before a court makes a final
determination of the victim’s losses, a defendant requires the assistance of
counsel to confront the Government in the sentencing process, thereby
ensuring the PSR’s accuracy. A final determination of a restitution award also
implicates a defendant’s substantial rights. An order of restitution is part of
the sentencing process; a defendant has a constitutional right “at the final
sentencing” to “respond to a definitive decision of the judge.” United States v.
Moree, 928 F.2d 654, 655–56 (5th Cir. 1991) (quoting United States v. Behrens,
375 U.S. 162, 168 (1963) (Harlan, J., concurring)); see also Caille v. United
States, 487 F.2d 614, 616 (5th Cir. 1973). Similarly, a defendant has a right to
be present if the court modifies a sentence to make it more onerous. United
States v. Clark, 816 F.3d 350, 355 (5th Cir. 2016) (“[T]he presence of the
defendant usually is not required, unless the modification makes the sentence
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                                  No. 16-20570
more onerous.”) (quoting Moree, 928 F.2d at 655–56). At a final determination
of restitution, a defendant is thus entitled to the assistance of an attorney who
plays the adversarial role necessary to ensure that the proceeding itself is fair.
See Strickland, 466 U.S. at 685, 691–92. Where a court increases a mandatory
restitution award, a defendant is entitled to the assistance of counsel.
      The Government disputes that Pleitez was denied access to counsel at a
critical stage of trial proceedings, but its arguments are unpersuasive. First,
the Government argues that Pleitez could have asked for a hearing or filed
objections to the amended order of restitution or amended judgment. But
Pleitez was not appointed counsel until the day the court entered the amended
judgment. Once the district court imposed its sentence, it was too late for
Pleitez to challenge the PSR’s findings. See United States v. Engs, 884 F.2d
894, 896–97 (5th Cir. 1989). Second, the Government argues that the order did
not affect any substantial rights because Pleitez cannot show he would have
received less punishment in the restitution order. However, Pleitez need not
show a different outcome if the entry of an amended judgment based on a new
restitution recommendation was a critical stage. See Cronic, 466 U.S. at 659.
Restitution is a criminal sentence. The new restitution award in this case
imposed a greater penalty than what was disputed at the sentencing hearing
($113,790 as opposed to $90,110), and Pleitez was denied any opportunity to
dispute the calculation of restitution in the Fourth Addendum with the
assistance of counsel.
      Finally, the Government argues that the amount of restitution was fully
vetted between the parties at the sentencing hearing, and Pleitez was
represented by counsel throughout the proceedings and filed objections to
every previous PSR addendum. Thus, Pleitez was not denied the assistance of
counsel. Underlying this argument is an assumption that the Fourth
Addendum merely affirmed the earlier restitution recommendation based on
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                                   No. 16-20570
the original method of computation. But the Fourth Addendum went beyond
the recommendation presented at the sentencing hearing—it increased the
restitution award based on a new method of calculation that was not previously
presented to the defendant or the court. Through the Third Addendum, the
probation officer’s restitution recommendation relied on the assumption that
the victims were earning minimum wage under the FLSA. Under the Fourth
Addendum, for the first time, the award was based on an estimate of the
victims’ actual earnings by computing the amount charged for each sex act
multiplied by an estimated number of customers. On appeal, Pleitez offers an
example of how this new calculation might be inaccurate. He claims that were
he given the opportunity, he would have presented evidence showing that “the
prostitutes received half (50%) of the gross receipts” from the services they
performed and thus the restitution amount for lost wages should be reduced
by half. Pleitez could not have made this argument when the PSR calculated
restitution under the FLSA. After the Fourth Addendum, however, this
argument was available. We cannot fairly say he was represented when the
new restitution recommendation was considered and accepted by the district
court.
                               III. CONCLUSION
         Because Pleitez did not have a lawyer when the district court considered
and accepted the Fourth Addendum to the PSR containing a more onerous
restitution award, he was effectively denied any opportunity to object or
allocute when his sentence was enhanced. Under this Court’s precedent, this
was a critical stage of the trial proceedings, and Pleitez was denied effective
assistance of counsel. Restitution is a part of sentencing, which is a critical
stage of the trial proceedings. By issuing a more onerous restitution award
based on a new method of computation in the Fourth Addendum, the district
court increased Pleitez’s sentence outside the presence of the defendant or
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                                 No. 16-20570
defendant’s counsel. Pleitez’s substantial rights were at issue—he faced a
criminal sentence—and he required the assistance of counsel in a trial-like
setting—sentencing. The entry of a final restitution order that imposes a more
onerous award thus constitutes a “critical stage” of proceedings where a
defendant requires the assistance of counsel. Accordingly, Pleitez was entitled
to representation, and his Sixth Amendment right to counsel was violated. On
remand, the district court should either modify the restitution award to reflect
the original amount for $90,110, or appoint Pleitez counsel and allow him to
argue against the increased restitution award.
      For the foregoing reasons, the district court’s entry of final judgment and
restitution order are VACATED. We REMAND this case for further
proceedings consistent with this opinion.




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