     Case: 16-11208      Document: 00514296024         Page: 1    Date Filed: 01/05/2018




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

                                    No. 16-11208                                 FILED
                                  Summary Calendar                         January 5, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff—Appellee,

v.

CHRISTIAN WINCHEL,

                                                 Defendant—Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-79-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pursuant to a written agreement with the Government, Christian
Winchel pleaded guilty to production of child pornography, transporting and
shipping child pornography, and possession of prepubescent pornography. The
district court sentenced Winchel to 600 months of imprisonment, apportioned
among the three counts, to be followed by a supervised release term of life.
Winchel now argues that the district court committed reversible plain error by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11208     Document: 00514296024      Page: 2   Date Filed: 01/05/2018


                                  No. 16-11208

ordering him to pay restitution without determining the extent to which his
conduct proximately caused the victims’ losses, as required by Paroline v.
United States, 134 S. Ct. 1710 (2014). The Government moves to dismiss the
appeal on the grounds that it is barred by an appellate waiver provision in
Winchel’s plea agreement.
      Winchel waived his right to appeal or collaterally attack his convictions
or sentences, including restitution, but retained his right to challenge a
sentence exceeding the statutory maximum. This court held in United States
v. Chemical & Metal Industries, Inc., 677 F.3d 750, 752 (5th Cir. 2012), that an
appeal waiver reserving the right to appeal any punishment in excess of the
statutory maximum did not bar review when “the restitution order exceeds the
statutory maximum because there is no evidence regarding loss.”             In the
present case, the district court did not consider whether the amounts awarded
relate to the injuries proximately caused by the defendant’s conduct as to each
victim seeking restitution. Winchel’s claim is that the amounts awarded did
exceed the losses proximately caused, and therefore, that the amounts he was
ordered to pay in restitution exceed the statutory maximum. The appeal
waiver does not foreclose this claim on appeal.
      This court recently recognized the conflicting precedent on the standard
of review in restitution cases, noting a line of cases where this court has applied
de novo review to a claim that a restitution order was illegal despite the
defendant’s failure to object at sentencing. United States v. Bevon, 602 F. App’x
147, 151 (5th Cir. 2015) (per curiam). We need not resolve this issue because
the restitution order cannot survive even plain error review. To establish plain
error, Winchel must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct the error if



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                                 No. 16-11208

it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In Paroline, the Supreme Court held that in child pornography cases the
amount of restitution awarded a victim must relate to those injuries
proximately caused by the defendant’s conduct in the particular case. See 134
S. Ct. at 1727-28. We recently vacated a restitution order on plain error review
where the district court failed to conduct a Paroline analysis. United States v.
Jimenez, 692 F. App’x 192, 202-03 (5th Cir. 2017) (per curiam). Jimenez is
materially indistinguishable.
      The Government’s motion to dismiss is DENIED. We VACATE the
restitution order and REMAND the case to the district court. The Government
may present additional evidence of the victims’ losses.




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