     Case: 16-41691   Document: 00514297545        Page: 1   Date Filed: 01/08/2018




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

                                    No. 16-41691
                                                                            Fifth Circuit

                                                                          FILED
                                                                    January 8, 2018

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

JESUS VILLALOBOS, also known as Jesse Villalobos,

             Defendant - Appellant




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


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Jesus Villalobos pleaded guilty to sexual exploitation of a child, in viola-
tion of 18 U.S.C. § 2251. The district court imposed 300 months’ imprisonment,
25 years of supervised release, and $10,000 in restitution. Villalobos challenges
only the restitution order. We vacate and remand for further proceedings.
                                         I.
      A grand jury indicted Villalobos on two counts: sexual exploitation and
solicitation of a child. Pursuant to a plea agreement, Villalobos pleaded guilty
to the first count, admitting that he had induced the victim, his 11-year-old
daughter, to take and send him sexually explicit photographs of herself via
Facebook Messenger. The victim has since attended several therapy sessions,
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                                      No. 16-41691
requiring her mother or stepfather to take time off from work. Although a pro-
bation officer sent the victim’s mother a Victim Impact Statement Form, the
mother did not report any dollar amounts or documents reflecting specific
losses. The Presentence Investigation Report therefore noted that “[n]o resti-
tution has been reported by the victim.” Though the victim’s mother had a
chance to address the court during sentencing, she was unable to speak once
she reached the witness stand. The prosecutor did, however, recount to the
court several conversations with the victim’s mother and stepfather about res-
titution. The government did not identify any specific amounts.
       The district court imposed $10,000 in restitution. 1 It conceded, however,
that “without documentation” of any of the victim’s incurred costs, the sentenc-
ing court was “swinging a little bit blindly.” After Villalobos objected to the
restitution amount as arbitrary and unsupported by the record, the district
court remarked, “I don’t think it’s arbitrary but it may be wrong.” A few mo-
ments later, the court added:
       [A]nybody could have provided . . . financial data if they chose to
       do so about what the cost[s incurred] would be, about what was
       done, about what needed to be done and that’s why Defense coun-
       sel may be successful in her argument that it’s arbitrary. It is ar-
       bitrary to the extent that there’s no paper documentation but
       there’s no arbitrary decision with respect to the Court’s own expe-
       rience with other cases similar to this and other cases.
Despite the $10,000 restitution order to compensate the victim for her losses,
the district court’s written judgment lists the “Total Loss” as $0.00.
       On appeal, Villalobos reprises his challenge to the restitution amount as
arbitrary and untethered to record evidence. The government believes that




       1 The court initially announced a $100,000 restitution amount conditioned “upon [Vil-
lalobos’s] ability to pay” before permitting the parties to discuss an appropriate number.
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                                  No. 16-41691
“the proper recourse is a remand . . . for further determination and develop-
ment of the record,” while Villalobos insists that the government cannot get a
“second bite at the apple.”
                                       II.
      Under 18 U.S.C. § 2259(a), a district court “shall order restitution” for
certain offenses, including those listed in § 2251. The order of restitution must
cover “the full amount of the victim’s losses as determined by the court,”
§ 2259(b)(1), and the “victim” includes a minor’s guardians, see § 2259(c).
Losses under the statute comprise costs incurred for psychiatric and psycho-
logical care, rehabilitation, necessary transportation, lost income, attorneys’
fees, and “any other losses suffered by the victim as a proximate result of the
offense.” § 2259(b)(3). The government bears the burden of proving “the
amount of the loss sustained by [the] victim as a result of the of-
fense.” 18 U.S.C. § 3664(e); see also § 2259(b)(2) (incorporating 18 U.S.C. §§
3363A and 3664)). We review a restitution order’s legality de novo and its
amount for abuse of discretion. United States v. Gibson, 875 F.3d 179, 198 (5th
Cir. 2017). Though it need not be exact, a district court’s “[r]estitution order[]
should represent an application of law, not a decisionmaker’s caprice.” Paroline
v. United States, 134 S. Ct. 1710, 1729 (2014) (quotation marks omitted).
      We vacate the restitution award. The district court recorded that the vic-
tims’ losses totaled $0.00 but imposed $10,000 in restitution. “[A]n order of
restitution that exceeds the victim’s actual losses or damages is an illegal sen-
tence.” United States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752 (5th Cir.
2012) (quotation marks omitted) (vacating a restitution award where “there
was no finding of loss”). Indeed, the government and Villalobos agree that the
announced restitution amount lacks record support.
      But the parties disagree on the proper remedy. The government asks for
permission to supplement the record to pin some dollar figures on the victims’
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                                  No. 16-41691
losses, such as lost wages, travel costs, and therapy expenses. Villalobos ob-
jects, arguing that a one-and-done rule should govern here. We remand to the
district court to resolve this dispute in the first instance.
      Our caselaw offers some guidance. “The government generally may not
present new evidence on remand when reversal is required due to the failure
to present evidence originally.” Chem. & Metal Indus., 677 F.3d at 753 (citing
United States v. Archer, 671 F.3d 149, 168–69 (2d Cir. 2011)). But we have
noted that “special circumstances” may justify an exception to our rule. E.g., id.
Those circumstances include: “(a) where the government’s burden was unclear,
(b) where the trial court prohibited discussion of the issue, or (c) where the
evidence was, for a good reason, unavailable.” Archer, 671 F.3d at 168. We have
also found our general rule inappropriate where the victims sought to assist
the government in calculating the proper restitution amount and “the harm
from the Government’s failure to present sufficient evidence to the district
court [wa]s to the victims.” United States v. Jimenez, 692 F. App’x 192, 203 (5th
Cir. 2017); see also United States v. Jones, 616 F. App’x 726, 729 (5th Cir. 2015).
      Here, especially given the victim mother’s inability to speak at sentenc-
ing, it is prudent to permit the district court to ask and decide whether special
circumstances excuse the government’s failure to present evidence the first
time around.
                                   *     *     *
      We therefore VACATE and REMAND the restitution order for proceed-
ings consistent with this opinion.




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