     Case: 12-41058       Document: 00512258638         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-41058
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ORLANDO HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-350-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Orlando Hernandez appeals an order that he pay restitution to the owner
of a fence Hernandez damaged while fleeing police. He contends that the court
was not authorized by 18 U.S.C. § 3663 to award restitution for the cost of
repairing the fence.
       We review Hernandez’s contention for plain error because he did not raise
it in the district court where he disputed only the proof of the cost of repairs. See
United States v. Maturin, 488 F.3d 657, 659-60 (5th Cir. 2007); United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41058     Document: 00512258638      Page: 2   Date Filed: 05/31/2013

                                  No. 12-41058

Hord, 6 F.3d 276, 280 n.7 (5th Cir. 1993). We decline Hernandez’s invitation to
apply de novo review under United States v. Chemical & Metal Industries, Inc.,
677 F.3d 750, 752 (5th Cir. 2012) (C&M). In C&M the Government conceded
that a restitution order was “impermissible because there was no finding of loss.”
Id. There is no such concession here. Moreover, C&M does not overrule our
prior panel decisions applying plain-error review to restitution orders. See
United States v. Achobe, 560 F.3d 259, 268 n.29 (5th Cir. 2008); see also Maturin,
488 F.3d at 659-60; Hord, 6 F.3d at 280 n.7.
      Hernandez must show an error that was “clear or obvious, rather than
subject to reasonable dispute” and that the error affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have
discretion to correct the error if it seriously affects the integrity, fairness or
reputation of the proceedings. Id.
      Hernandez argues that restitution based on repair costs is impermissible
under United States v. Mitchell, 876 F.2d 1178, 1183-84 (5th Cir. 1989). The
court in Mitchell noted that § 3663(b)(1) “limits restitution in property cases to
return of the property or, if that is inadequate, to the value of the property when
stolen less its value when returned.” Id. at 1184. It is unclear in this case how
measuring restitution based on repair costs is significantly different than
measuring it based on the pre-crime value of the property, “[g]iven that the
ordinary meaning of ‘restitution’ is restoring someone to a position he occupied
before a particular event.” Hughey v. United States, 495 U.S. 411, 416 (1990).
Other circuits hold that the cost of repairs is a proper measure of restitution for
property damage. See United States v. Sharp, 927 F.2d 170, 174 (4th Cir. 1991)
(applying § 3663(b)); United States v. Quillen, 335 F.3d 219, 222-23 (3d Cir.
2003) (following Sharp and distinguishing Mitchell as applying to stolen
property). The issue of whether restitution is available for the repair of damaged
property is “subject to reasonable dispute,” which means there is no clear or
obvious error. Puckett, 556 U.S. at 135.

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                                  No. 12-41058

      Even if it was an error to use repair costs rather than pre-crime value in
setting restitution, nothing suggests that the error affected Hernandez’s
substantial rights. By relying on Mitchell, Hernandez appears not to dispute
that he could have properly been ordered to pay restitution based on the value
of the fence under § 3663(b)(1). And he does not argue that restitution for repair
was more onerous than restitution for value would have been. Because there is
no adverse affect on Hernandez’s substantial rights, there is no plain error. Cf.
Maturin, 488 F.3d at 663 (finding that an error affected the defendant’s
substantial rights where he was required to pay $100,000 more than the proven
losses). In any event, we would decline to exercise our discretion to set aside the
restitution order because requiring Hernandez to pay $1450 for damage he
undisputedly caused does not affect the fairness, integrity, or reputation of his
proceedings. See Puckett, 556 U.S. at 135.
      The judgment of the district court is AFFIRMED.




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