     Case: 15-30217      Document: 00513344352         Page: 1    Date Filed: 01/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30217
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 15, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JACKSON DESOUZA, also known as Jackson Rodriguez Desouza, also known
as Juan Dicupe,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CR-123-1


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jackson Desouza pleaded guilty pursuant to a plea agreement to bank
fraud and aggravated identity theft and was sentenced to a total of 38 months
of imprisonment, five years of supervised release for each count, a $1000 fine,
and restitution in the amount of $11,005.51. He argues that the restitution
order exceeds the statutory maximum amount authorized by the Mandatory



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30217     Document: 00513344352      Page: 2   Date Filed: 01/15/2016


                                  No. 15-30217

Victim Restitution Act (MVRA) because the record does not contain sufficient
supporting evidence. He further contends that the appeal is not barred by the
appeal waiver in his plea agreement because it falls within the exception
allowing an appeal of a punishment that exceeds the statutory maximum.
      The plea agreement provided in pertinent part that Desouza waived his
right to appeal his guilty plea, conviction, sentence and “any restitution
imposed by any judge under any applicable restitution statute.” However, he
reserved the right to appeal a punishment in excess of the statutory maximum.
Because Desouza argues that the restitution order exceeds the statutory
maximum amount of restitution authorized by the MVRA, that argument is
not barred by the appeal waiver. See United States v. Chemical and Metal
Industries, Inc, 677 F.3d 750, 752 (5th Cir. 2012); United States v. Sharma, 703
F.3d 318, 321 n.1, 322-23 (5th Cir. 2012).
      Desouza did not object to the restitution order in the district court. This
court recently recognized the conflicting precedent on the standard of review
in restitution cases, noting a line of cases where this court has “applied de novo
review to a claim that a restitution order was illegal . . . even where an
objection was not raised at sentencing.” United States v. Bevon, 602 F. App’x
147, 151 (5th Cir. 2015) (citing, inter alia, United States v. Nolen, 472 F.3d 362,
382 (5th Cir. 2006)). We need not resolve this issue because the restitution
order cannot survive even plain error review.
      The MVRA authorizes restitution to a victim “directly and proximately
harmed” by a defendant’s offense of conviction. Sharma, 703 F.3d at 322
(internal quotation marks and citation omitted). “An award of restitution
greater than a victim’s actual loss exceeds the MVRA’s statutory maximum.”
Id. 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).



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                                  No. 15-30217

      The Presentence Report (PSR) stated that the Government indicated the
loss suffered by the victim was $11,005.51, and the factual basis and the PSR
list only one specific fraudulent check in the amount of $1,000 that Desouza
deposited into the bank account at issue. However, no evidence was cited in
support of the Government’s figure. Because the PSR did not have an adequate
evidentiary basis to support this amount, the district court erred in adopting
it without requiring the Government to present supporting evidence. See
United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013). Even if the plain
error standard of review applies, the district court’s error was clear and obvious
under this court’s precedent. See De Leon, 728 F.3d at 507-09; United States
v. Austin, 479 F.3d 363, 373 (5th Cir. 2007). “When a defendant is ordered to
pay restitution, in an amount greater than the loss caused, the error affects
substantial rights as well as the fairness and integrity of the judicial
proceeding.” Austin, 479 F.3d at 373; see also United States v. Inman, 411 F.3d
591, 595 (5th Cir. 2005). Therefore, the district court plainly erred in ordering
Desouza to pay restitution in the amount of $11,005.51. See Austin, 479 F.3d
at 373; Inman, 411 F.3d at 595. Accordingly, the restitution order is vacated,
and the case is remanded for reconsideration of the appropriate amount of
restitution based on the evidence already in the record. See Sharma, 703 F.3d
at 327.
      VACATED AND REMANDED.




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