     Case: 16-40322      Document: 00513872051         Page: 1    Date Filed: 02/10/2017




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

                                      No. 16-40322
                                                                                Fifth Circuit

                                                                              FILED
                                                                       February 10, 2017

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

v.

RAMIRO SERRATA, JR.,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-691-2


Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM: ∗
       Defendant-Appellant Ramiro Serrata, Jr. appeals an order imposed by
the district court requiring that he pay $5,000 in restitution for the future
psychiatric treatment of his victim. We affirm.
                          I. Facts & Procedural History
       Serrata pleaded guilty pursuant to a written plea agreement to one count
of conspiring to commit a hate crime against K.G. 1 on the basis of his race 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 The victim’s initials will be used to protect his identity.
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                                       No. 16-40322
sexual orientation and one count of causing bodily injury to K.G. based on his
sexual orientation through the use of weapons that traveled in interstate
commerce. 2 In the presentence report (PSR), the probation officer calculated a
total offense level of 42 and a criminal history category of VI, resulting in an
advisory Guidelines range of the statutory maximum terms of 60 months for
the conspiracy and 120 months for the substantive offense. With respect to
restitution, the probation officer determined that Serrata could be ordered to
pay K.G. for his losses and Christus Spohn Hospital for the balance owed on
K.G.’s medical bills for treatment of his injuries.
       At sentencing, Serrata did not object to the PSR. K.G. made a statement
asserting that the assault had resulted in his disfigurement and isolation from
society. He noted that he had been sodomized and whipped, despite his lack of
aggression against his abusers, and that he had escaped when his persecutors
discussed killing him. K.G. maintained that as a result of the abuse, he
suffered intense psychological damage. K.G. acknowledged that he had used
drugs recreationally prior to the assault but that after the attack “the intensity
of [his] addiction was off the charts” even after his physical injuries healed,
contributing to his spiral into depression.
       Following a recess, the Government stated that K.G. had taken out loans
of $5,800 for his last semester of school and requested restitution for that
amount. In addition, the Government asked for $5,000 for K.G.’s “future
psychiatric and psychological care.” The Government explained that K.G., who
is presently incarcerated on drug charges, had been receiving mental health
treatment and that his counselor had expressed a belief that he was suffering



       2As part of the plea agreement, Serrata waived his right to appeal his conviction and
sentence. Citing this court’s opinion in United States v. Keele, 755 F.3d 752, 753–56 (5th Cir.
2014), the Government submits that it is not enforcing the appeal waiver under these
circumstances.
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                                 No. 16-40322
from posttraumatic stress disorder. When the district court asked about the
amount, the Government responded that it was “just an estimate” of the
approximate cost for a period of treatment.
      The district court ordered Serrata and his codefendant to pay the $5,800
in restitution for K.G.’s student loan fees. Immediately thereafter, the district
court ordered restitution of “$5,000 [in] medical services at a hundred dollar[s]
. . . an hour, which is reasonable for any professional. That’s but 50 hours of
service, nothing.”   The district court acknowledged that it could find no
authority to award restitution for pain and suffering but concluded that K.G.
would be allowed to pursue civil remedies.
      The district court adopted the PSR, including a determination that the
offense had occurred as a result of K.G.’s race and sexual orientation. The
court expressed shock at the brutality of the assault and noted that if the
victim had not accepted the plea agreement, Serrata would likely be facing
thirty years to life in prison. The district court sentenced Serrata to the
statutory maximum sentences of five and ten years in prison, to run
consecutively, and to be followed by a three-year term of supervised release.
      The probation officer asked whether the district court intended to
“impose a payment plan of $200 per month for the restitution,” and the court
responded that “[i]t’s due now, it’s due now.” The judgment stated that the
payments were to begin immediately, but the court did not indicate that a lump
sum payment was due, did not set forth a payment amount, and did not state
that the payment amount would be assessed upon Serrata’s release from
prison.
      Serrata filed a timely notice of appeal challenging the district court’s
authority to order the $5,000 restitution award, the amount of the restitution
award, the district court’s failure to set a payment schedule, and the court’s
consideration of the $5,800 college loan restitution award.
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                           II. Standard of Review
      We review Serrata’s assertion that the restitution order exceeded the
district court’s authority for plain error because he did not raise the issue
before the district court. United States v. Maturin, 488 F.3d 657, 659–60 (5th
Cir. 2007).   We also review for plain error unpreserved challenges to the
quantum of a restitution award and to the payment schedule. See United
States v. Miller, 406 F.3d 323, 327–29 (5th Cir. 2005).
      To establish plain error, Serrata must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). An error is not clear or obvious if it is subject to
reasonable debate. Id.; United States v. Ellis, 564 F.3d 370, 377–78 (5th Cir.
2009). If these requirements are met, this court has the discretion to correct
the error, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 556 U.S. at 135.
                                III. Discussion
      The Mandatory Victims Restitution Act authorizes payment to a victim
“directly and proximately harmed” by a defendant’s offense of conviction.
United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012) (citation omitted)
(quoting 18 U.S.C. § 3663A) (internal quotation marks omitted). The purpose
of criminal restitution “is to compensate victims for losses, not to punish
defendants for ill-gotten gains.”    Id.    A sentencing court may not award
restitution greater than a victim’s actual losses. Id.
A. The District Court’s Authority to Order Restitution
      Here, the district court ordered Serrata to pay $5,000 in restitution for
K.G.’s future psychiatric or psychological care. Under the applicable statute,
if an offense results in bodily injury to a victim, a district court may order the
defendant to pay “an amount equal to the cost of necessary medical and related
professional services and devices relating to physical, psychiatric, and
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psychological care.” 18 U.S.C. § 3663(b)(2)(A). The district court is to “order
restitution to each victim in the full amount of each victim’s losses.” Id. §
3664(f)(1)(A). Generally, restitution is limited to losses stemming from the
offense of conviction. See Hughey v. United States, 495 U.S. 411, 420 (1990).
      This court has not addressed whether the restitution statutes authorize
payment of future medical expenses that are attributable to the defendant’s
actions. However, as the Government points out, other courts have held that
calculable future losses may be included in an order of restitution. See United
States v. Messina, 806 F.3d 55, 67 (2d Cir. 2015) (ordering restitution for lost
future income under § 3663A following a death); United States v. Serawop, 505
F.3d 1112, 1120 (10th Cir. 2007) (same); United States v. Cienfuegos, 462 F.3d
1160, 1163–64 (9th Cir. 2006) (same); United States v. Oslund, 453 F.3d 1048,
1063 (8th Cir. 2006) (same). Similarly, other circuits have upheld restitution
orders including future psychiatric treatment in the context of 18 U.S.C. §
2259, which involves sexual exploitation of children. See United States v.
Pearson, 570 F.3d 480, 486 (2d Cir. 2009); United States v. Doe, 488 F.3d 1154,
1160 (9th Cir. 2007); United States v. Danser, 270 F.3d 451, 455 (7th Cir. 2001);
United States v. Julian, 242 F.3d 1245, 1247–48 (10th Cir. 2001); see also
United States v. Guel-Perez, No. 95-30221, 1996 WL 285579, at *1 (9th Cir.
May 29, 1996) (unpublished) (“[I]t was well within the district court’s
discretion to order restitution for future counseling sessions” in a case
involving sexual activity with a juvenile).




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                                        No. 16-40322
       In light of this persuasive authority, we conclude that the district court
did not plainly err in ordering Serrata to pay restitution to K.G. for future
psychiatric or psychological treatment. 3           See Puckett, 556 U.S. at 135.
B. Quantum
       Next, we turn to Serrata’s argument that the district court erred in
calculating the amount of restitution owed. A sentencing court may not award
restitution greater than a victim’s actual loss. Sharma, 703 F.3d at 322.
“Moreover, excessive restitution awards cannot be excused by harmless error;
every dollar must be supported by record evidence.”                       Id. at 323.       The
Government has the burden of proving the victim’s loss amount. United States
v. De Leon, 728 F.3d 500, 506 (5th Cir. 2013). If the record provides an
adequate basis for appellate review, the district court need not set forth a
detailed analysis supporting the restitution order.                    Id. at 507.       When
sentencing a defendant, the district court may consider any relevant evidence,
such as a PSR, to support the district court’s factual finding provided that the
information has “sufficient indicia of reliability to support its probable
accuracy.” United States v. Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013)
(citation and internal quotation marks omitted).                 In addition, information
provided by the victim may be sufficient to support the restitution order in the


       3 Section 3664(d)(5) states that if a victim “subsequently discovers further losses” after
the district court has made a final determination of loss, he or she “shall have 60 days after
discovery of those losses in which to petition the court for an amended restitution order.” The
Ninth Circuit has rejected an argument that this subsection precludes a restitution order
taking into account future losses, noting that it covers only “discovered” losses and concluding
that the victim’s need for future psychiatric care was already known. United States v. Laney,
189 F.3d 954, 966–67 (9th Cir. 1999). The court concluded that “if Congress intended crime
victims who required long-term psychological or physical therapy to receive restitution only
after they actually paid their therapists, it created a strangely unwieldy procedure in section
3664,” given that the victims would be required to request the court to amend the restitution
order “every 60 days for as long as the therapy lasted.” Id. at 967. We also find this reasoning
persuasive and agree that a reasonable reading of the statute would contemplate the costs of
future medical care which are not necessarily “ascertainable” at the time of sentencing. See
18 U.S.C. § 3664(d)(5).
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                                    No. 16-40322
absence of rebuttal evidence from the defendant. Sharma, 703 F.3d at 324
n.21.
         Serrata did not object to the PSR, which detailed the violence and
brutality of the assault, including the use of racial and homosexual epithets by
Serrata and the other attackers against K.G. while they beat him with various
items, whipped him, sodomized him with a broom handle, poured bleach on his
face, and threatened to kill him. At sentencing, K.G. provided a statement
reflecting the severe psychological trauma he had suffered, which included
increased drug use, depression, nightmares, insomnia, discomfort in groups,
revenge fantasies, loss of concentration, and flashbacks. The Government also
advised the court that K.G. was receiving mental health treatment while in
jail.
         The district court ordered that Serrata pay K.G. $5,000 in restitution for
the future mental health treatment, which the court determined would cover
fifty hours of treatment at $100 per hour. The undisputed information in the
PSR and in K.G.’s victim statement reflects the brutality of the attack and the
psychological issues arising from it. In light of our conclusion that the district
court was authorized under Section 3663 to order restitution payments for
K.G.’s future psychiatric or psychological treatment, we hold that the district
court’s calculated amount of $5,000 in restitution for that treatment is amply
supported by the record and thus does not constitute a clear or obvious error.
See Puckett, 556 U.S. at 135; De Leon, 728 F.3d at 507.
C. Payment Schedule
         Next, Serrata maintains that the district court “cannot order immediate
payment of restitution in full if the defendant does not have money to pay.”
According to Serrata, there is no information in the record regarding his ability
to pay restitution. On this ground, he asserts that the district court plainly


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                                         No. 16-40322
erred in ordering him to make an immediate payment by stating that the “[the
restitution is] due now, it’s due now.”
       Under Section 3664(f)(1)(A), the court’s order of restitution should take
into account all losses suffered by the victim attributable to the offense,
“without consideration of the economic circumstances of the defendant.”
However, the court should take the defendant’s financial situation into account
when determining the restitution payment schedule. 18 U.S.C. § 3664(f)(2),
(3)(A); Miller, 406 F.3d at 328.
       As the Government points out, the district court’s order does not require
Serrata to pay the full restitution amount immediately but merely provides:
“Payment to begin immediately.” As this court has previously recognized, an
order to pay a fine or restitution “immediately” does not require payment of
the    full   amount      immediately        but    instead     requires      the    immediate
commencement of good faith payments. United States v. Buck, 470 F. App’x
304, 305 (5th Cir. 2012) (citing Miller, 406 F.3d at 327). For this reason we
hold that the district court did not plainly err in ordering payment of
restitution to begin immediately. See Puckett, 556 U.S. at 135. 4
D. Consideration of Other Restitution Amounts
       Finally, Serrata asserts for the first time on appeal that the district court
erred by taking into consideration the fact that K.G.’s only other determined
loss was the $5,800 cost of the student loan debt when it imposed the $5,000
restitution award for future psychological care.
       We now turn to the section of the statute that Serrata cites in support of
this contention. Under Section 3664(f)(1)(B), a court crafting a restitution



       4 Additionally, the district court properly considered Serrata’s ability to pay when it
adopted the undisputed facts in the PSR, including Paragraph 64 “Financial Condition:
Ability to Pay,” which details a list of Serrata’s assets and liabilities and results in a positive
cash flow.
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order should not take into account “the fact that a victim has received or is
entitled to receive compensation with respect to a loss from insurance or any
other source.”   18 U.S.C. § 3664(f)(1)(B).     This provision stands for the
proposition that a court may not reduce an order of restitution based on the
victim’s compensation by a third party, although the court may order that the
third party be reimbursed for those payments. Id. § 3664(f)(1)(B), (j)(1); see,
e.g., United States v. Taylor, 582 F.3d 558, 567–68 (5th Cir. 2009) (holding that
a defendant’s restitution order should not be offset by any amount forfeited to
the United States government).
      On the record before us, it is a stretch to conclude that the district court
“considered” the $5,800 student loan restitution award in calculating the
$5,000 restitution award for future psychiatric or psychological treatment.
The sentencing hearing transcript reveals that the district court merely
ordered the former immediately prior to ordering the latter.            However,
assuming arguendo that the district court did “consider” the $5,800 restitution
award for the student loan debt in crafting the $5,000 restitution award for
future mental health treatment, it did not do so in an effort to offset or reduce
the latter restitution award and, thus, did not act in contravention of the
statute. 18 U.S.C. § 3664(f)(1)(B). Accordingly, we conclude that the district
court’s order of $5,000 in restitution for future medical care did not constitute
clear and obvious error in light of the court’s contemporaneous mention of the
$5,800 restitution award for the student loan. See Puckett, 556 U.S. at 135.
                                IV. Conclusion
      For the forgoing reasons, the restitution award is affirmed in all respects.




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