     Case: 17-11524      Document: 00515030063         Page: 1    Date Filed: 07/11/2019




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

                                      No. 17-11524                              FILED
                                                                            July 11, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

LINZI LADAWN SHIFFLETT,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-497-1


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Defendant Linzi Ladawn Shifflett pleaded guilty to two counts of
producing child pornography. Shifflett now challenges her conviction and the
district court’s restitution order. For the following reasons, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-11524
                                       I.
      Defendant Linzi Ladawn Shifflett used “Jane Doe” to create child
pornography, which she sent to a stranger. At the time of these events, Jane
Doe was approximately four years old.
      Shifflett was charged with two counts of producing child pornography in
violation of 18 U.S.C. § 2251(a) and (e), and one count of transporting and
shipping child pornography in violation of 18 U.S.C. § 2252A(a)(1). Shifflett
pleaded guilty to the two counts of producing child pornography pursuant to a
written plea agreement. By entering into the plea agreement, Shifflett
consented to “waive[] her rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, to appeal the convictions, sentences, fines and orders of restitution or
forfeiture in an amount to be determined by the district court,” as well as her
right to bring a collateral attack. Shifflett reserved some rights to appeal,
including the right to bring a direct appeal challenging a sentence exceeding
the statutory maximum punishment.
      The district court sentenced Shifflett to 360 months’ imprisonment for
each count, to run consecutively, and a life term of supervised release. At the
sentencing hearing, the Government presented several witnesses who
described the extent of Shifflett’s abuse and the emotional and physical trauma
Jane Doe suffered as a result. The court determined that Shifflett had
proximately caused Jane Doe’s harm, despite evidence that another person had
abused Jane Doe as well. Thus, the district court ordered Shifflett to pay
$194,815.17 in restitution to Jane Doe, care of her court-appointed guardian
ad litem.
      Shifflett now appeals, arguing that there was an insufficient factual
basis to support her guilty plea to Count One of the indictment, that the statute
under which she was convicted is unconstitutional, and that the restitution
order inappropriately awards fees for costs that Shifflett did not proximately
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                                  No. 17-11524
cause and costs that were incurred by the State of Texas, rather than Jane
Doe. At oral argument, Shifflett’s counsel conceded that Shifflett failed to
preserve all of these issues except whether the restitution order included costs
she did not proximately cause. Shifflett’s counsel also conceded that there was
no plain error as to the issues that Shifflett failed to preserve. Accordingly, the
only issue remaining before us is whether the restitution order improperly
includes losses to the victim that Shifflett did not proximately cause.
                                        II.
                                        A.
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). To determine the
validity of the appeal waiver, “this court considers whether the waiver was
knowing and voluntary and whether, under the plain language of the plea
agreement, the waiver applies to the circumstances at issue.” Id. In doing so,
we employ “ordinary principles of contract interpretation, construing waivers
narrowly and against the Government.” Id.
      Shifflett does not contest that her appeal waiver was knowing and
voluntary. Therefore, the only question is whether the language of her waiver
forecloses her challenge to the district court’s restitution order. Shifflett argues
that she can still challenge the restitution order because she reserved the right
to challenge a sentence that exceeds the statutory maximum punishment.
Generally, “an order of restitution that exceeds the victim’s actual losses or
damages is an illegal sentence.” United States v. Chem. & Metal Indus., Inc.,
677 F.3d 750, 752 (5th Cir. 2012) (quoting United States v. Middlebrook, 553
F.3d 572, 579 (7th Cir. 2009)). Accordingly, this court has allowed a defendant
whose appeal waiver included a statutory-maximum exception to challenge the
court’s restitution award when the district court “failed to find, and there was
no evidence of,” the victim’s loss. Id. Likewise, such an appeal waiver does not
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                                  No. 17-11524
foreclose a claim that the district court failed to make a finding that the
defendant’s conduct proximately caused the victim’s alleged losses. See United
States v. Winchel, 896 F.3d 387, 389 (5th Cir. 2018) (“[I]f a court orders a
defendant to pay restitution . . . without determining that the defendant’s
conduct proximately caused the victim’s claimed losses, the amount of
restitution necessarily exceeds the statutory maximum.”). Because Shifflett’s
argument fails on the merits, we assume without deciding that Shifflett’s
appeal waiver does not bar her argument that the restitution order included
costs she did not proximately cause.
                                        B.
      Shifflett argues that the district court erroneously ordered her to pay
restitution for losses that Shifflett did not proximately cause. Because she
preserved her objection, we review the legality of the district court’s restitution
order de novo. United States v. Villalobos, 879 F.3d 169, 171 (5th Cir. 2018).
      Shifflett committed offenses under § 2251; thus, the district court was
required to order restitution for “the full amount of the victim’s losses,” which
the statute defines 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.” 18 U.S.C. §§ 2259(b)(1), (c)(2). “Restitution
is therefore proper under § 2259 only to the extent the defendant’s offense
proximately caused a victim’s losses.” Paroline v. United States, 572 U.S. 434,
448 (2014).
      We find that the district court did not err in its restitution order. Shifflett
does not take issue with the district court’s determination that Jane Doe’s
harm was equal to $194,815.17. But she argues that she is only responsible for
a fraction of that amount because others contributed to the victim’s abuse and
the district court failed to make specific findings about the amount of abuse
Shifflett proximately caused. This argument is without merit. The district
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                                 No. 17-11524
court specifically found that Shifflett proximately caused the victim’s losses.
This finding supports the district court’s order requiring Shifflett to pay
restitution for the entire amount of Jane Doe’s harm. That others may have
also abused Jane Doe does not mean that the district court erred. Cf.
Restatement (Second) of Torts § 430 cmt. d (Am. Law Inst. Mar. 2019 Update)
(explaining that an event may have more than one proximate cause).
Accordingly, we find that the district court appropriately ordered Shifflett to
pay the full amount of restitution.
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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