     Case: 16-11330   Document: 00515063889        Page: 1   Date Filed: 08/05/2019




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

                                                                        FILED
                                                                     August 5, 2019
                                    No. 16-11330
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

BRANDON GREGORY LEAL,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant Brandon Leal pleaded guilty to one count of transportation of
child pornography in violation of 18 U.S.C. § 2252A(a)(1). The district court
sentenced Leal to 240 months imprisonment and ordered Leal to pay $58,415
in restitution to “Andy,” a victim depicted in Leal’s materials. On appeal, Leal
seeks to vacate the order of restitution, contending that it was imposed in
violation of the proximate cause requirements described in Paroline v. United
States, 572 U.S. 434 (2014). We affirm the district court.
                                         I.
      Leal stipulated that in December 2014, he traveled from Canada into the
United States with electronic devices containing hundreds of images and
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dozens of videos of child pornography. Some depicted sadistic acts involving
children, and some depicted infants or toddlers.
      In relevant part, Leal’s plea agreement stated that the district court
could impose a sentence including “restitution to victims or to the community,
which is mandatory under the law.” The agreement noted, “The defendant fully
understands that the actual sentence imposed (so long as it is within the
statutory maximum) is solely in the discretion of the Court.” Finally, the
agreement contained an appeal waiver stating in full:
      The defendant waives his rights, conferred by 28 U.S.C. § 1291 and
      18 U.S.C. § 3742, to appeal his conviction, sentence, fine, order of
      restitution, and forfeiture order in amount to be determined by the
      district court. He also waives his right to contest his conviction,
      sentence, fine, order of restitution and forfeiture order in any
      collateral proceeding, including proceedings under 28 U.S.C. §
      2241 and 28 U.S.C. § 2255. The defendant, however, reserves the
      rights (a) to challenge the voluntariness of his plea of guilty or this
      waiver, and (b) to bring a claim of ineffective assistance of counsel.

      The Pre-Sentence Report initially found restitution inapplicable. After
the PSR was completed, Andy submitted his restitution request and the
government sought to amend the PSR accordingly. Two weeks before
sentencing, the Probation Office filed an addendum to the PSR recommending
that Leal be ordered to pay $58,415, the full amount sought by Andy.
      The addendum attached the twenty-one-page restitution request
submitted by Andy’s attorney. The letter explained that beginning when Andy
was seven and continuing until Andy was twelve, Andy was sexually abused
by an older man (not Leal) who made and circulated “graphic video recordings
of his sexual abuse of Andy” in which Andy was “clearly recognizable.” Relying
on reports from a forensic psychologist and an economist, Andy estimated that
he had suffered losses of $267,038 in future psychological counseling costs and

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$1,854,925 in future lost income, totaling $2,121,963 in general losses
“stem[ming] from the actions of defendant Leal as well as other criminals.”
Andy acknowledged that Leal did not appear to be “directly connected to the
initial production of his images,” but had harmed Andy by possessing Andy’s
images. 1 Andy argued that Leal should be responsible for $25,000 of Andy’s
general losses. Andy also sought to recover $33,415 for the forensic
psychologist’s and economist’s fees.
       Leal was sentenced on August 15, 2016, at a consolidated sentencing
hearing that combined the instant case with a related case, in which Leal had
pleaded guilty to possessing child pornography and to being a felon in
possession of a firearm. At sentencing, Leal confirmed that he had reviewed
the PSR and the addendum and raised no objections. The district court adopted
the factual contents of the PSR and addendum and ordered Leal to pay Andy
$58,415 in restitution.
       On August 30, 2016, Leal filed a pro se notice of appeal from “the
judgment and sentences imposed by this court on August 15th, 2016.” Leal’s
notice of appeal was timely. However, it was filed only in the related case, not
in the present case, and hence arguably failed to “designate the judgment,
order, or part thereof being appealed” as required by Rule 3(c)(1)(B). Fed. R.
App. P. 3. We find that this omission is not a jurisdictional defect. “Courts will
liberally construe the requirements of Rule 3.” Smith v. Barry, 502 U.S. 244,



       1 “The consumer, or end recipient, of pornographic materials . . . caus[es] the children
depicted in those materials to suffer as a result of his actions in at least three ways. . . . First,
the simple fact that the images have been disseminated perpetuates the abuse initiated by
the producer of the materials. . . . Second, the mere existence of child pornography represents
an invasion of the privacy of the child depicted. . . . Third, the consumer of child pornography
instigates the original production of child pornography by providing an economic motive for
creating and distributing the materials.” United States v. Norris, 159 F.3d 926, 929–30 (5th
Cir. 1998).
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248 (1992). “[A] mistake in designating a judgment appealed from should not
bar an appeal as long as the intent to appeal a specific judgment can be fairly
inferred and the appellee is not prejudiced or misled by the mistake.” United
States v. Knowles, 29 F.3d 947, 949 (5th Cir. 1994) (quotation omitted). Here,
Leal’s intent to appeal the sentence in the present case can be fairly inferred
from his plural reference to the “sentences imposed . . . on August 15th, 2016,”
especially because pro se notices of appeal are liberally construed. See Haines
v. Kerner, 404 U.S. 519, 520–21 (1972); Edwards v. Joyner, 566 F.2d 960, 961
n.3 (5th Cir. 1978). Further, the government does not argue that it has been
prejudiced or misled. We are satisfied that we have jurisdiction. See, e.g.,
United States v. Servellon, 534 F. App’x 252, 252 (5th Cir. 2013); United States
v. Donjuan-Gonzalez, 268 F. App’x 276, 276–77 (5th Cir. 2008).
                                      II.
      Title 18 U.S.C. § 2259 requires district courts to order restitution for
certain child pornography offenses, including Leal’s offense of transporting
child pornography. The Supreme Court’s decision reversing our court in
Paroline provides that restitution is “proper under § 2259 only to the extent
the defendant’s offense proximately caused a victim’s losses.” 572 U.S. at 448.
Leal argues that the district court failed to adequately analyze whether Leal
proximately caused Andy’s losses. As a threshold matter, the government
counters that Leal’s appeal is barred by his appeal waiver.
      “The right to appeal a conviction and sentence is a statutory right, not
a constitutional one, and a defendant may waive it as part of a plea agreement.”
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). “This court reviews
de novo whether an appeal waiver bars an appeal.” United States v. Keele, 755
F.3d 752, 754 (5th Cir. 2014). We generally enforce a waiver that “was knowing
and voluntary, and if the waiver applies to the circumstances at hand.” United
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States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013) (citing United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005)). Here, Leal does not dispute, and the
record indicates, that the waiver was knowing and voluntary.
      We determine the scope of an appeal waiver by examining “the plain
language of the plea agreement,” “employ[ing] ordinary principles of contract
interpretation”   and    “construing    waivers   narrowly     and   against    the
Government.” Keele, 755 F.3d at 754 (citations omitted); cf. Puckett v. United
States, 556 U.S. 129, 137 (2009) (“Although the analogy may not hold in all
respects, plea bargains are essentially contracts.”). An appeal waiver, even if
applicable, does not deprive this court of jurisdiction. United States v. Story,
439 F.3d 226, 230 (5th Cir. 2006).
      Leal’s “Paroline-based appeal of the district court’s restitution order” is,
according to our precedent, an “appeal of a sentence exceeding the statutory
maximum punishment.” United States v. Winchel, 896 F.3d 387, 389 (5th Cir.
2018); see also United States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752
(5th Cir. 2012) (CMI). In Winchel, we held that a defendant could bring a
Paroline challenge to a restitution order where the defendant’s appeal waiver
expressly reserved the right to appeal a sentence “exceeding the statutory
maximum punishment.” 896 F.3d at 389–90. Leal’s appeal differs from
Winchel’s in that Leal did not expressly reserve the right to raise a statutory
maximum challenge. But that difference is of no moment because as we
explained in Keele, “an ‘in excess of the statutory maximum’ challenge, if
properly raised on appeal, would not be barred by an appeal waiver.” 755 F.3d
at 756 (citing CMI, 677 F.3d at 752).
      Keele did not delve into justifications for its rule, but our reasoning in
United States v. White, 258 F.3d 374, 380 (5th Cir. 2001), is instructive and
apposite. White is one in a series of our decisions affirming that “even if there
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is an unconditional plea of guilty or a waiver of appeal provision in a plea
agreement, this Court has the power to review if the factual basis for the plea
fails to establish an element of the offense which the defendant pled guilty to.”
Baymon, 312 F.3d at 727 (listing cases). White pleaded guilty to violating 18
U.S.C. § 922(g)(9) by possessing a firearm after having been previously
convicted of a “misdemeanor crime of domestic violence.” 258 F.3d at 376. On
appeal, White asserted that neither of the two predicate offenses listed in the
indictment was a misdemeanor crime of domestic violence, whereas the
government argued that White’s appeal was foreclosed by his appeal waiver.
The court sided with White.
      White first questioned whether a defendant could ever “waive his
substantive right ‘to be free of prosecution under an indictment that fails to
charge an offense.’” Id. at 380 (quoting United States v. Meacham, 626 F.2d
503, 509–10 (5th Cir. 1980)). As in White, the government does not identify,
nor have we located, published authority suggesting that a defendant may
waive the substantive right to be free of a sentence that exceeds the statutory
maximum. As other circuits have noted, “[e]ven when a defendant, prosecutor,
and court agree on a sentence, the court cannot give the sentence effect if it is
not authorized by law.” United States v. Gibson, 356 F.3d 761, 766 (7th Cir.
2004) (quoting United States v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002)).
      Ultimately, without resolving waivability, White “conclude[d] that the
language of White’s conditional plea agreement fails to embrace such a
jurisdictional defect and, in any event, is insufficient to accomplish an
intelligent waiver of the right not to be prosecuted (and imprisoned) for conduct
that does not violate the law.” 258 F.3d at 380. In other words, considering the
essential nature of the substantive right on the one hand, and the generic
phrasing of White’s appeal waiver on the other hand, the court found that (1)
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the right was not encompassed by the waiver (a matter of contract
interpretation) and (2) the right could have not been knowingly and voluntarily
surrendered (a problem of contract formation).
      White’s contract-interpretation and contract-formation concerns apply
with considerable force to the right to be free of a sentence exceeding the
statutory maximum—particularly so in Leal’s case because his plea agreement
stated that any sentence imposed would be “solely in the discretion of the
Court,” “so long as it is within the statutory maximum” (emphasis added). That
qualification reflects “that both parties to the plea agreement[] contemplated
that all promises made were legal, and that the non-contracting ‘party’ who
implements the agreement (the district judge) will act legally in executing the
agreement.” United States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996). But a
district court imposes a sentence expressly foreclosed by statute when it orders
restitution under § 2259 for losses not proximately caused by the defendant.
See Winchel, 896 F.3d at 389; see also CMI, 677 F.3d at 752 (restitution order
under 18 U.S.C. § 3664 “that exceeds the victim’s actual losses or damages is
an illegal sentence”).
      The government did not address the Keele rule in its brief (though the
government did cite Keele for other propositions). Faithfully applying Keele,
which is in accord with at least seven other circuits, we find that Leal’s
statutory maximum challenge is not barred by his waiver of appeal. See United
States v. Guillen, 561 F.3d 527, 530–31 (D.C. Cir. 2009); United States v. Bibler,
495 F.3d 621, 623–24 (9th Cir. 2007); United States v. Andis, 333 F.3d 886,
891–92 (8th Cir. 2003) (en banc); United States v. Black, 201 F.3d 1296, 1301
(10th Cir. 2000); Ready, 82 F.3d at 558–60; United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). This broad circuit agreement was recently
acknowledged by the Supreme Court in Garza v. Idaho, 139 S. Ct. 738 (2019).
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The Court explained that “no appeal waiver serves as an absolute bar to all
appellate claims,” and “all jurisdictions appear to treat at least some claims as
unwaiveable,” including, in some jurisdictions, “claims that a sentence . . .
exceeds the statutory maximum authorized.” Id. at 745 & n.6.
                                       III.
      We review the district court’s restitution order for plain error under Rule
52(b) because Leal did not object below. On plain error review, a court has
discretion to correct an error only if it (1) was not intentionally relinquished or
abandoned, (2) was plain, i.e. not subject to reasonable dispute, and (3) the
error affected the defendant’s substantial rights. Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016) (citing United States v. Olano, 507 U.S.
725 (1993)). Where those three conditions are met, and the error also “seriously
affects the fairness, integrity or public reputation of judicial proceedings,” then
“the court of appeals should exercise its discretion to correct the forfeited
error.” Id. (quoting Olano, 507 U.S. at 736).
      Leal contends that the district court plainly erred because the restitution
request adopted by the district court “contained no true Paroline analysis.”
Specifically, Leal argues that (1) the $25,000 figure for general losses was
“based on a portion of the minimum civil remedy set forth in 18 U.S.C. § 2255,
which is not a factor listed in Paroline,” and (2) “the $33,415 figure for expenses
was not subjected to any proximate cause analysis or apportionment at all.”
                                        A.
      We first address Leal’s challenge to his $25,000 assessment for Andy’s
general losses. “In determining the amount of general losses a defendant must
pay under § 2259 the ultimate question is how much of these losses were the
‘proximate result’ of that individual’s offense.” Paroline, 572 U.S. at 449
(quoting 18 U.S.C. § 2259(b)(3)(F)). But the proximate cause analysis may be
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“difficult” when, as is the case for Leal, the defendant is “one of thousands who
have possessed and will in the future possess the victim’s images but who has
no other connection to the victim.” Id. at 449. Such a defendant makes “very
minor” “contribution[s] to the causal process underlying the victim’s losses,”
compared to “the combined acts of all other relevant offenders” as well as the
acts of distributors and producers. Id. at 454.
      Paroline directed the sentencing court to “assess as best it can from
available evidence the significance of the individual defendant’s conduct in
light of the broader causal process that produced the victim’s losses.” Id. at
459. Proper restitution “would not be severe” because the victim’s general
losses would be “the product of the acts of thousands of offenders. It would not,
however, be a token or nominal amount.” Id. at 458–59. Paroline listed various
factors, “rough guideposts,” relevant to a restitution calculation, but found it
“neither necessary nor appropriate to prescribe a precise algorithm” or to make
the specific Paroline factors mandatory on district courts. Id. at 459–60.
Ultimately, a restitution order “cannot be a precise mathematical inquiry and
involves the use of discretion and sound judgment.” Id. at 459.
      Under Paroline’s broad guidelines, Leal cannot show plain error with
respect to the $25,000 assessed for Andy’s general losses. Leal recognizes that
the district court adopted the reasoning set forth in Andy’s extensive
restitution request and submission, which was attached to the PSR addendum.
Leal does not challenge Andy’s $2.1 million estimate of general losses and
argues only that the $25,000 figure was derived without considering proximate
cause. It is true that much of Andy’s restitution request focused on the
“reasonableness” of a $25,000 assessment in light of 18 U.S.C. § 2255, which
entitles child pornography victims to liquidated damages of $150,000 when
they prevail in civil suits. That reasonableness argument appears to have little
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bearing on the relative significance of Leal’s conduct in causing Andy’s losses.
But Andy’s submission did discuss some of the Paroline factors. It represented
that “Andy has received restitution in only a tiny number of cases in which he
has been named a victim, in large part due to the fact that it was too late in
the criminal process to ask for restitution by the time Andy retained our
services.” It also explained that Andy did not have information about whether
future offenders contributing to Andy’s general losses might be caught and
convicted, nor did Andy have an estimate of the number of offenders involved
with his images. Based on this evidence, holding Leal responsible for roughly
one percent of Andy’s general losses does not make Leal “liable for an amount
drastically out of proportion to his own individual causal relation to the
victim’s losses.” Paroline, 572 U.S. at 461. Cf. United States v. Dunn, 777 F.3d
1171, 1181 (10th Cir. 2015) (vacating restitution order that held a single
defendant liable for $583,955 of the victim’s $1.3 million general losses).
                                       B.
      As to the assessment for expert expenses, we do not perceive plain error
that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.
      The district court imposed on Leal the full extent of Andy’s expert
expenses. Andy argued that he was entitled to recover those costs in full
because Leal’s “conviction was both a ‘necessary’ and ‘sufficient’ condition to
produce all the [expert] costs.” Put another way, Leal’s offense caused the need
for Andy’s restitution request, and expert reports were required to support that
request. However, Andy also forthrightly acknowledged that he “is submitting
[the] . . . reports in other criminal cases in support of restitution, and with
request for full restitution in these other cases.” In these narrow
circumstances, the government ideally should have presented evidence about
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these other defendants. See 18 U.S.C. § 3664 (“The burden of demonstrating
the amount of the loss sustained by a victim as a result of the offense shall be
on the attorney for the Government.”); 18 U.S.C. § 2259(c)(2) (defining “full
amount of the victim’s losses” to “include[] any costs incurred, or that are
reasonably projected to be incurred in the future, by the victim, as a proximate
result of the offenses involving the victim”) (emphasis added). For example, the
government could have determined “the number of past criminal defendants
found to have contributed to” Andy’s expert expenses, either on its own or by
asking Andy’s attorneys. See Paroline, 572 U.S. at 460. Such developments
would have given the district court an opportunity to apportion Andy’s expert
expenses between multiple defendants.
      However, we agree with Andy and the government that if Leal had been
the only defendant convicted in connection with Andy’s images, then all the
expert expenses could have been properly assessed against him. In the absence
of any indication that Andy has received duplicative recovery on his expert
expenses, we decline to find that ordering Leal to pay Andy’s expert expenses
in full seriously affected the fairness or integrity of these proceedings.
                                       IV.
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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