     Case: 12-40003       Document: 00512404772         Page: 1     Date Filed: 10/11/2013




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

                                                                            FILED
                                                                         October 11, 2013

                                       No. 12-40003                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

JULIAN GONZALEZ,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-696-1


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Julian Gonzalez appeals his sentence following his conviction for receiving
child pornography in interstate commerce under 18 U.S.C. §§ 2252A(a)(2)(A),
2252A(b)(1), and 2256. The district court sentenced Gonzalez to 91 months of
imprisonment and ordered lifetime supervised release, a special assessment of
$100, and restitution of $926,560.09. Gonzalez contends that his 91-month term
of imprisonment and lifetime supervised release were procedurally and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40003     Document: 00512404772      Page: 2    Date Filed: 10/11/2013



                                  No. 12-40003

substantively unreasonable. He also challenges the district court’s restitution
order. We affirm.
                                         I
      Gonzalez was contacted by the Alton, Texas Police Department in
connection with an investigation into the improper filming of Gonzalez’s
nephew’s 12-year-old daughter. Gonzalez consented to a search of his laptop
computer, which uncovered numerous videos of child pornography that Gonzalez
admitted downloading from the internet. Subsequent forensic examinations of
Gonzalez’s laptop and a desktop computer belonging to Gonzalez identified 138
videos of child pornography.
      Pursuant to a plea agreement, Gonzalez pleaded guilty to one count of
receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A),
2252A(b)(1), and 2256. The Presentence Investigation Report (PSR) prepared
by the Probation Office calculated a total offense level of 31, starting from a base
offense level of 22 with adjustments downward for Gonzalez’s acceptance of
responsibility and because Gonzalez’s conduct was limited to receiving the
material rather than trafficking or distributing it, and adjustments upward
because Gonzalez had used a computer and had received 600 or more images,
and because the material involved a minor under the age of 12 and contained
depictions of sadistic or masochistic conduct.
      Based on a total offense level of 31 and criminal history category of I,
Gonzalez’s advisory range of imprisonment under the United States Sentencing
Guidelines was 108 to 135 months, for which the PSR recommended the low end
of 108 months. The PSR also noted that if Gonzalez qualified for an additional
one-level reduction for acceptance of responsibility, then the applicable
Guidelines sentencing range would decrease to 97 to 121 months. The range for
supervised release was determined to be five years to life; because Gonzalez was
convicted of a sex offense, the PSR recommended the statutory maximum of

                                         2
    Case: 12-40003    Document: 00512404772     Page: 3   Date Filed: 10/11/2013



                                 No. 12-40003

lifetime supervised release. The range of a potential fine was $15,000 to
$150,000; however, the PSR recommended that no fine be imposed because
Gonzalez lacked the means to pay. A mandatory special assessment of $100 was
identified. Additionally, citing 18 U.S.C. § 3663A, the PSR recommended
restitution in the amount of $941,927.79 to the victim identified in the “Vicky”
series of pornographic videos that had been among those found on Gonzalez’s
computers. The amount was based on a letter received from counsel for Vicky
requesting restitution under 18 U.S.C. § 2259 for Vicky’s economic losses,
including future counseling expenses, educational and vocational counseling
needs, lost earnings, and litigation expenses and attorneys’ fees, taking into
account $282,769.25 in restitution payments already received from other
defendants. Prior to sentencing, the amount of restitution requested was
reduced to $926,560.09.
      At sentencing, the district court adopted the factual findings of the PSR
and granted the government’s motion for an additional one-level reduction for
acceptance of responsibility, resulting in a total offense level of 30 and
Guidelines sentencing range of 97 to 121 months of imprisonment. After hearing
from counsel for Gonzalez on the sentencing factors in 18 U.S.C. § 3553(a) and
considering the materials submitted by Gonzalez, the district court concluded
that a within-Guidelines sentence was appropriate. Taking into account the
time Gonzalez had already served, the district court sentenced Gonzalez to 91
months of imprisonment. The district court also imposed a condition of lifetime
supervised release, explaining that the Probation Office would assist Gonzalez
in finding work, attending school, or anything else he needed to become a
productive and law-abiding member of society.
      Noting that it was required to order restitution, the district court
conducted a lengthy colloquy on how to fashion a proper restitution order. It
considered whether proximate causation of losses was required for restitution

                                       3
    Case: 12-40003         Document: 00512404772           Page: 4   Date Filed: 10/11/2013



                                        No. 12-40003

and whether Gonzalez should be ordered to pay the full amount of restitution
jointly and severally or whether a fractional amount could be ordered.
Concluding that it was bound by Fifth Circuit precedent that proximate
causation was not required, and that there was no basis for determining
Gonzalez’s portion of Vicky’s losses, the district court ordered Gonzalez to pay
$926,560.09 in restitution jointly and severally. A $100 special assessment was
also imposed.
      Gonzalez objected to the restitution order and to both the term of
imprisonment and the lifetime supervised release as being greater than
necessary for the purposes of § 3553(a). Gonzalez also explained that it was his
position that the district court had failed to state its reasons for imposing the
sentence. The district court responded that the objections were overruled for
“the reasons . . . previously stated on the record.” This appeal followed.
                                               II
      Gonzalez contests both the procedural and substantive reasonableness of
his sentence. In reviewing a sentence, “[we] must first ensure that the district
court committed no significant procedural error.”1 If there is no procedural error
or the error is harmless, we review the substantive reasonableness of the
sentence for abuse of discretion.2
                                               A
      Gonzalez asserts that the district court committed reversible procedural
error by failing to explain his sentence adequately. We disagree.
      A district court is required to “state in open court the reasons for its
imposition of the particular sentence.”3 The sentencing judge must “set forth


      1
          Gall v. United States, 552 U.S. 38, 51 (2007).
      2
          Id.; United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
      3
          18 U.S.C. § 3553(c).

                                               4
     Case: 12-40003         Document: 00512404772         Page: 5   Date Filed: 10/11/2013



                                         No. 12-40003

enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis” for his decision.4 Thus, a “bare recitation
of the Guideline’s calculation” will not suffice when a party presents nonfrivolous
reasons for imposing a different sentence.5 However, if the record makes clear
that the district court listened to and considered the arguments and evidence,
it is an adequate explanation to state that the district court agrees that a
sentence within the Guidelines range is appropriate under the circumstances.6
       In the present case, there is ample evidence in the record that the district
court read the PSR and other documents, heard Gonzalez’s arguments on the
3553(a) factors, and concluded that a sentence within the Guidelines range was
warranted. During the sentencing hearing, the district court explicitly stated
that it had reviewed the PSR and identified various pertinent facts from it,
including Gonzalez’s lack of prior criminal history and the murder of his mother
when Gonzalez was a child, both of which Gonzalez’s attorney later referenced
in arguing for a lower sentence based on the 3553(a) factors. The district court
noted that it had received letters and statements from Gonzalez’s family, as well
as a “substantial number” of documents filed by the Government on aggravating
factors. Gonzalez’s attorney was invited to present arguments specifically on the
3553(a) factors; the district court listened to the arguments, engaged Gonzalez’s
counsel, and agreed to consider the requests. The district court also heard from
Gonzalez directly. Before sentencing Gonzalez, the district court explained that


       4
           Rita v. United States, 551 U.S. 338, 356 (2007).
       5
           United States v. Mondragon-Santiago, 564 F.3d 357, 363-64 (5th Cir. 2009).
       6
        Rita, 551 U.S. at 358-59; see also United States v. Gomez-Herrera, 523 F.3d 554, 565
(5th Cir. 2008) (holding that explanation that sentencing judge “was persuaded by the
arguments at the hearing and in the sentencing memos that he should not depart downward
from the Guidelines range” was sufficient); United States v. Rodriguez, 523 F.3d 519, 525-26
(5th Cir. 2008) (holding that district court’s statement that it believed sentence would
“adequately address the objectives of punishment and deterrence” was adequate explanation).

                                                5
     Case: 12-40003         Document: 00512404772         Page: 6       Date Filed: 10/11/2013



                                         No. 12-40003

after carefully considering all of the materials before it and the 3553(a) factors,
the sentencing goals of those factors would be satisfied by a sentence within the
Guidelines range.7
       On this record, we are satisfied that the district court considered the
arguments of both Gonzalez and the Government and had a “reasoned basis” for
its decision. Accordingly, we hold that the district court did not fail to explain
Gonzalez’s sentence adequately.
                                               B
       Having concluded that no procedural error exists, we now consider
whether Gonzalez’s sentence was substantively unreasonable. When, as here,
the sentence imposed by the district is within the Guidelines range, we “appl[y]
a rebuttable presumption of reasonableness.”8 To rebut this presumption,
Gonzalez must show that his sentence “does not account for a factor that should
receive significant weight,” “gives significant weight to an irrelevant or improper
factor,” or “represents a clear error of judgment in balancing sentencing
factors.”9
       Gonzalez contends that his sentence was substantively unreasonable first
because the district court relied too heavily on the Guidelines, and second
because it failed to give proper consideration to the nature and circumstances of
the offense and his history and characteristics. Gonzalez’s first argument is
essentially that with respect to child pornography offenses, because the
Guidelines are not empirically based, they can lead to unreasonable sentences

       7
         Cf. Rita, 551 U.S. at 359 (“We acknowledge that the judge might have said more. He
might have added explicitly that he had heard and considered the evidence and argument . .
. . Where a matter is as conceptually simple as in the case at hand and the record makes clear
that the sentencing judge considered the evidence and arguments, we do not believe the law
requires the judge to write more extensively.”).
       8
           United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
       9
           Id.

                                                6
    Case: 12-40003         Document: 00512404772          Page: 7   Date Filed: 10/11/2013



                                           No. 12-40003

that are inconsistent with what § 3553(a) requires and are not entitled to
deference. This argument is foreclosed by our decision in United States v.
Miller.10
      Like Gonzalez, the defendant in Miller contested the substantive
reasonableness of his sentence based on the premise that “because the
Sentencing Guidelines applicable to child pornography offenses are not based on
empirical sentencing data, they are seriously flawed and can lead to
unreasonable and disproportionate prison sentences.”11                  We rejected this
argument and held that “[e]mpirically based or not, the Guidelines remain the
Guidelines. . . . The advisory Guidelines sentencing range remains a factor for
district courts to consider in arriving upon a sentence.”12 Accordingly, Gonzalez’s
argument also fails, and we hold that the district court did not err in relying on
the Guidelines sentencing range as a factor.
      Gonzalez’s second claim—that the district court accorded no weight to the
particular facts of his case, such as his lack of prior criminal history, his
mother’s murder, and his acceptance of responsibility and desire to seek
help—appears to be largely a rephrasing of his contention that the district court
gave too much weight to the Guidelines. To the extent that it is a separate
argument, his claim is clearly belied by the record. The district court took note
of Gonzalez’s lack of prior criminal history and the murder of his mother, and
explained that it had imposed lifetime supervised release with the hope that
Gonzalez would become a productive and law-abiding citizen, with the Probation
Office there to assist him in “finding a job or getting into educational programs




      10
           665 F.3d 114 (5th Cir. 2011).
      11
           Miller, 665 F.3d at 119.
      12
           Id. at 121.

                                                7
     Case: 12-40003      Document: 00512404772         Page: 8    Date Filed: 10/11/2013



                                      No. 12-40003

or whatever else you might need.”13 Gonzalez has not identified any factor that
should receive significant weight for which his sentence does not account or
shown that his sentence represents a clear error of judgment in balancing
sentencing factors sufficient to rebut the presumption of reasonableness of his
sentence.    Therefore, we conclude that Gonzalez’s sentence of 91 months
imprisonment and lifetime supervised release was not substantively
unreasonable.
                                            III
       Gonzalez also challenges the district court’s restitution order. He asserts
two main arguments on appeal. First, he contends that the district court erred
in imposing joint and several liability under 18 U.S.C. § 3664(h) because that
provision does not apply to Gonzalez’s case. Second, he argues remand is
required because there was no proof that he proximately caused Vicky’s losses
and the district court’s restitution order did not specify whether it relied on
18 U.S.C. § 3663A, which requires proof of proximate cause, or 18 U.S.C. § 2259,
which does not require proximate causation except for non-enumerated “other
losses.” Additionally, he asserts that even if the district court relied on § 2259,
the district court erred in including “other losses” in the restitution order that
the Government failed to prove were proximately caused by Gonzalez. We
consider each of Gonzalez’s arguments in turn.
                                             A
       With respect to the district court’s imposition of joint and several liability,
Gonzalez argues that § 3664(h) applies solely to proceedings with more than one
defendant and assumes that the victim’s loss is indivisible, neither of which
apply in Gonzalez’s case. We reject this argument.


       13
        See 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be
imposed, shall consider . . . (2) the need for the sentence imposed . . . (D) to provide the
defendant with needed educational or vocational training . . . .”).

                                             8
     Case: 12-40003         Document: 00512404772        Page: 9    Date Filed: 10/11/2013



                                        No. 12-40003

       In In re Amy Unknown14—a recent en banc decision of this court involving
consolidated cases of individual defendants like Gonzalez who were ordered to
pay restitution under § 2259 to a victim for whom restitution had been ordered
in at least 174 other cases—we explained that “[t]he joint and several liability
mechanism [of § 3664(h)] applies well in these circumstances, where
victims . . . are harmed by defendants acting separately who have caused . . . a
single harm.”15 We further stated that although the D.C. Circuit had expressed
the belief that it was unclear whether joint and several liability may be imposed
upon defendants in separate cases, “nothing in § 3664 forbids it, either expressly
or through implication; the fact that it conforms well to this context supports its
application.”16
       In regard to the application of joint and several liability under § 3664(h),
nothing distinguishes Gonzalez’s case from those of the defendants in In re Amy
Unknown. We conclude that the district court did not err in imposing joint and
several liability on Gonzalez.
                                               B
       Gonzalez maintains that remand is necessary because the district court
did not specify whether its restitution order relied on § 3663A or § 2559, and that
even if the court did rely on § 2259, the amount of restitution ordered
impermissibly included “other losses.” We conclude that the district court
ordered restitution under § 2259 and that Gonzalez waived his argument
regarding the inclusion of “other losses” in the restitution order by failing to
raise it in his initial brief in this court.



       14
          701 F.3d 749 (5th Cir. 2012) (en banc), cert. granted in part by Paroline v. United
States, 133 S. Ct. 2886 (2013).
       15
            In re Amy Unknown, 701 F.3d at 752-54, 769; see id. at 769-771.
       16
            Id. at 770.

                                               9
    Case: 12-40003             Document: 00512404772      Page: 10   Date Filed: 10/11/2013



                                           No. 12-40003

      The PSR prepared by the Probation Office listed § 3663A as the basis for
its recommendation of restitution.             Section 3663A provides for mandatory
restitution to victims of certain specified offenses.17 It defines “victim” as “a
person directly and proximately harmed as a result of the commission of an
offense for which restitution may be ordered.”18 The letter received by the
district court from counsel for Vicky requested restitution based on § 2259.
Section 2259 provides for mandatory restitution to victims of offenses relating
to the abuse and sexual exploitation of children for the “full amount of the
victim’s losses.”19 The victim’s losses include any costs incurred by the victim for
      (A) medical services relating to physical, psychiatric, or
      psychological care;
      (B) physical and occupational therapy or rehabilitation;
      (C) necessary transportation, temporary housing, and child care
      expenses;
      (D) lost income;
      (E) attorneys’ fees, as well as other costs incurred; and
      (F) any other losses suffered by the victim as a proximate result of
      the offense.20

Pursuant to our recent en banc decision in In re Amy Unknown, only the final
category of “other losses” requires a showing of proximate cause.21
      At sentencing, the district court did not state which statute it relied upon
in ordering restitution. However, the court did engage in a lengthy discussion
with counsel about whether proof of proximate cause was required to order
restitution. This debate would have been unnecessary had the district court


      17
           18 U.S.C. § 3663A(a)(1), (c).
      18
           Id. § 3663A(a)(2).
      19
           18 U.S.C. § 2259(a), (b)(1).
      20
           Id. § 2259(b)(3).
      21
           In re Amy Unknown, 701 F.3d at 773.

                                               10
    Case: 12-40003           Document: 00512404772       Page: 11    Date Filed: 10/11/2013



                                         No. 12-40003

been contemplating ordering restitution under § 3663A, which unquestionably
requires proximate cause. Indeed, Gonzalez’s opening brief concedes that the
district court focused on § 2259. Based on the record before us, it is clear that
the district court intended to and did order restitution under § 2259.
         In supplemental briefing that we requested after the issuance of our
decision in In re Amy Unknown, Gonzalez contends that even under § 2259, a
showing of proximate cause is still required for “other losses” under subsection
§ 2259(b)(3)(F). He argues that the district court erred in ordering restitution
for “other losses,” which Gonzalez identifies as “educational . . . counseling
needs,” asserting that there was no showing of proximate cause. However,
Gonzalez failed to raise this issue in his opening brief. He makes the argument
regarding “other losses” and the specific category of “educational . . . counseling
needs” for the first time on appeal in his supplemental brief.
         It is a well-established rule that issues not raised in a party’s opening brief
are waived.22 Nevertheless, we have previously considered issues raised for the
first time in subsequent briefing when there has been an intervening court
decision that provided an important clarification in the law and when our refusal
to consider the issue would perpetuate incorrect law.23 When there has been no
clarification in the law with respect to the particular rule on which the party
relies, we will not consider arguments raised for the first time in a supplemental
brief.24



         22
         E.g., Truong v. Bank of Am., N.A., 717 F.3d 377, 386 (5th Cir. 2013); Tex. Democratic
Party v. Benkiser, 459 F.3d 582, 594 (5th Cir. 2006); Tharling v. City of Port Lavaca, 329 F.3d
422, 430 (5th Cir. 2003).
         23
              See DSC Commc’ns Corp. v. Next Level Commc’ns, 107 F.3d 322, 326 n.2 (5th Cir.
1997).
         24
         See Am. Int’l Specialty Lines Ins. Co. v. Res-Care, Inc., 529 F.3d 649, 661 n.28 (5th
Cir. 2008).

                                               11
    Case: 12-40003       Document: 00512404772         Page: 12     Date Filed: 10/11/2013



                                      No. 12-40003

       Our en banc decision in In re Amy Unknown provided an important
clarification in the law in this circuit regarding whether proximate cause is
required for enumerated damages under § 2259(b)(3)(A)-(E).                       However,
Gonzalez’s argument focuses not on the inclusion in the restitution order of any
enumerated loss but on the inclusion of “other losses” under § 2259(b)(3)(F). In
re Amy Unknown provided no clarification on this provision, which has
unambiguously required proximate cause under the plain language of the
statute since its enactment in 1994.25             Because Gonzalez failed to raise
arguments regarding “other losses” and specific categories of damages in his
initial briefing, he has waived this issue on appeal. In any event, fact questions
“capable of resolution by the district court upon proper objection at sentencing
can never constitute plain error.”26 Gonzalez’s argument that Vicky’s costs for
“educational . . . counseling needs” predated his criminal acts and therefore this
category of costs could not be proximately caused by his crime is a factual issue.
It cannot be the basis for plain error, and even were we to consider it, the record
indicates that these were projected costs with no indication when or if Vicky had
actually incurred these costs.
*           *    *
       AFFIRMED.




       25
        See 18 U.S.C. § 2259(b)(3)(F); Antiterrorism and Effective Death Penalty Act of 1996,
Pub L. No. 104-132 § 205, 110 Stat. 1214; Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, § 40113, 108 Stat. 1796.
       26
        United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012) (internal quotation
marks omitted).

                                             12
