     Case: 18-50465      Document: 00515470847         Page: 1    Date Filed: 06/29/2020




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

                                                                               FILED
                                      No. 18-50465                         June 29, 2020
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


              Plaintiff - Appellee

v.

RICARDO LOPEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-135-1


Before KING, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       The defendant was convicted of taking a bribe and engaging in other
corrupt activity while serving as the mayor of a small city. On appeal, he does
not contest his guilt but argues that the amount of restitution ordered was too
high, his sentence too long, and his conditions of supervised release too
onerous. We affirm the judgment of the district court in all respects.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50465
                                             I.
                                            A.
       In 2015, gambling entrepreneur Ngoc Tri Nguyen set his sights on
Crystal City, Texas, looking for a new location to run an illegal “eight-liner”
gambling operation. 1 He found a place to rent, and as luck would have it, his
landlord was Crystal City’s mayor, defendant Ricardo Lopez. Nguyen soon
sought to expand the building in order to fit more machines, and Lopez
suggested that Nguyen buy the building from him. Lopez and Nguyen agreed
to a cash price of $40,000. Unbeknownst to Nguyen, however, Lopez did not
actually own the building. Lopez had been in talks with the building’s true
owner, a man named Harry Thompson, to buy it for $36,000, but the deal never
materialized. Once Lopez agreed to “sell” the building to Nguyen, though,
Lopez returned to Thompson with the news that he had found a buyer. Nguyen
paid Lopez $40,000 in cash, Lopez paid Thompson $36,000 in cash, and
Thompson transferred title to Nguyen.
       This marked the beginning of a fruitful relationship for Lopez and
Nguyen. Lopez took Nguyen’s gambling operation under his wing, helping him
pass electrical inspections, keeping him out of trouble with the law, and even
renaming the street leading to Nguyen’s building after Nguyen’s son. At the
same time, James Jonas, the city manager and city attorney, had the police
shut down a rival eight-liner operation.
       Soon Lopez was negotiating with another property owner, Titakudi
Natarajan, on Nguyen’s behalf. Nguyen had promised Lopez that, if all went
well, he could run a restaurant that Nguyen was planning to build. The price
that Natarajan quoted was outside Nguyen’s price range, however, so Lopez



       1 An eight-liner is an electronic gambling machine, similar to a slot machine. Eight-
liners that pay out cash are generally illegal in Texas.
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                                     No. 18-50465
proposed that Nguyen could get a loan from the city, which the city would then
forgive, in order to afford the property.
      At another point, Lopez approached Nguyen and asked for a $6000 loan,
to buy a new car. Nguyen loaned him the money. Subsequently, Nguyen
proposed to Lopez that he would forgive the loan if the city would waive around
$4000 in taxes that Nguyen had coming due. Lopez agreed, and Jonas had the
city’s finance director waive Nguyen’s taxes.
      Ultimately, the government indicted Lopez, Jonas, Nguyen, and three
city councilmembers, Rogelio Mata, Roel Mata, and Gilbert Urrabazo, for
conspiring to commit federal-programs bribery. Only Lopez and Jonas went to
trial. The two men were eventually charged with conspiring to commit federal-
programs bribery, under 18 U.S.C. §§ 371, 666(a)(1)(B), and conspiring to
commit wire fraud involving theft of honest services, under 18 U.S.C. §§ 1343,
1346, 1349, all in connection with their dealings with Nguyen as well as two
other corrupt schemes that principally involved Jonas. 2 Lopez was also
charged with a substantive count of bribery for accepting forgiveness of
Nguyen’s $6000 loan and substantive counts of wire fraud in connection with
the Natarajan property deal. The jury found Lopez guilty on all counts.
                                           B.
                                           1.
      After the trial, Lopez sought to be released on bond pending sentencing.
His counsel argued that Lopez had been prescribed painkillers for his recent
back surgery but was only able to obtain ibuprofen while incarcerated. Counsel
provided copies of the prescriptions to the district court, but the court became



      2  In one of those other schemes, Jonas was charged with soliciting and facilitating
bribes from a city contractor to himself and the councilmembers. Although Lopez was not
accused of taking any bribes from the contractor, he was accused of voting to award him a
contract in furtherance of the conspiracy.
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                                    No. 18-50465
troubled that Lopez had received three hydrocodone prescriptions, from three
different doctors, in the span of one month, including two on the same day. The
district court denied bond, stating that, “one of the things that bothers the
Court [is] these multiple prescriptions that [Lopez] tries to use as a sign that
he is in need of bond by multiple doctors for the same powerful drug,
hydrocodone. Something’s not right there.”
      At sentencing, the district court remarked that Lopez’s presentence
investigation report (PSR) said nothing about the prescriptions that Lopez had
provided at the bond hearing. 3 The district court explained, “because it’s an
addictive substance I want to send him to drug aftercare and impose drug
conditions.” Lopez did not object. Among the conditions of his eventual
supervised release, the district court ordered that Lopez “not knowingly
purchase, possess, distribute, administer or otherwise use any psychoactive
substances such as synthetic marijuana, bath salts, et cetera, that impair a
person’s physical or mental functioning, whether or not intended for human
consumption.”
                                           2.
      The PSR contained a letter from Santos Camarillo, Crystal City’s new
city manager. According to the letter, Lopez “defrauded the taxpayers of the
City of Crystal City in the amount of $18,003.95.” The letter explained that
Lopez made “unnecessary and frivolous trips” at taxpayer expense and that his
requests for reimbursement often had “little to no backup documentation.” The
letter stated that Jonas told the city’s finance department to “just pay [Lopez]”
because they “need to keep the Mayor happy.” The letter noted in particular
that Lopez spent $1220.80 on a trip to El Paso to see a recycling center, $535.05


      3 The district court originally misremembered and stated that Lopez’s prescriptions
had been for oxycodone. The prosecutor noted that they were actually for Vicodin (which
contains hydrocodone).
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                                       No. 18-50465
on a trip to Houston for the lunar new year, and $571.54 attending a conference
for lawyers, despite not being a lawyer himself. The letter also described other
occasions on which Lopez allegedly misspent funds, but it did not contain any
other specific dollar amounts.
       At sentencing, Lopez objected both to the total amount and to the
characterization of these expenses as “frivolous and unnecessary,” and he
subpoenaed Camarillo to testify. Camarillo testified that she totaled up and
reviewed all of Lopez’s expenses and concluded that “every single expenditure”
was “frivolous and unnecessary.” With regard to the trip to El Paso, she opined
that “[i]t was frivolous because [Lopez] didn’t have to go as far as El Paso” to
see a recycling center. And she stated that the expenses relating to the
conference were frivolous because they included “$78 for laundry” as well as
“many” minibar expenses. Lopez presented no evidence to rebut Camarillo’s
testimony, and the district court thus overruled his objection, finding there to
be “reasonable and reliable and credible evidence” that Lopez should have to
repay $18,003.95 to the city. The district court thus imposed a restitution order
of $24,003.95, consisting of the amount just discussed plus $6000 for Nguyen’s
waived taxes. 4
                                             3.
       The PSR also stated that Lopez should be held responsible for an
intended loss to the city of between $15,000 and $40,000. The probation office
arrived at this amount by summing (i) $11,291.73, the total amount of bribes
that Lopez’s coconspirators had received, and (ii) $6000, the amount that
Nguyen paid Lopez. 5 At sentencing, Lopez objected to the $11,291.73, on the


       4  Although Nguyen testified at trial that he owed $4000 in taxes, the PSR stated that,
“[a]t the time, Nguyen estimated these assessments to be equal to the $6,000 that Lopez owed
him.”
        5 The PSR also included an additional $1000, relating to a kickback that the

government alleged Urrabazo intended to pay Lopez as part of the Natarajan property deal.
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                                   No. 18-50465
ground that he was unaware of and did not profit from those bribes. The
district court overruled the objection, on the basis that Lopez was in a
conspiracy with the individuals who did receive the bribes. Accordingly, Lopez
was held responsible for a loss of $17,291.73, which raised his offense level by
four under the sentencing guidelines. See U.S. Sentencing Guidelines Manual
§§ 2B1.1(b)(1)(C), 2C1.1(b)(2) (U.S. Sentencing Comm’n 2018).
      The PSR indicated that Lopez’s offense level should be increased by an
additional four because he “was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” See id.
§ 3B1.1(a). Lopez objected to this enhancement as well, on the basis that he
had “little or no control over” his coconspirators and that, in fact, Jonas and
Rogelio and Roel Mata had a “much more substantial leadership role.” The
district court overruled this objection, stating that, based on the evidence at
trial, “Lopez was very much involved in terms of giving instructions of how
items and matters and monies were to be used; and how people were to be dealt
with . . . ; and making sure that people on the city council . . . [and Jonas] were
being taken care of.”
      Accordingly, Lopez’s guideline sentencing range was 78-97 months, and
the district court sentenced him to 97 months’ imprisonment. This appeal
followed.
                                         II.
                                         A.
      We review “the legality of a restitution order de novo and the amount of
the restitution order for an abuse of discretion.” United States v. Arledge, 553
F.3d 881, 897 (5th Cir. 2008). And we review the district court’s factual findings



Lopez objected, on the ground that the kickback was never paid, and the district court
sustained the objection.
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                                        No. 18-50465
underlying the restitution order for clear error. See United States v. Sharma,
703 F.3d 318, 322 (5th Cir. 2012). The government bears the burden of
demonstrating the amount that the victim lost. See 18 U.S.C. § 3664(e).
“[E]xcessive restitution awards cannot be excused by harmless error; every
dollar must be supported by record evidence.” Sharma, 703 F.3d at 323.
       Lopez argues that the restitution order was invalid because the
government did not provide an evidentiary foundation for the entirety of the
$18,003.95 claimed by Camarillo and because Camarillo’s testimony was
unreliable. 6
       There is no evidence in the record detailing the dollar amounts of each
of Lopez’s “frivolous and unnecessary” expenditures as mayor. But the district
court did have sworn testimony from Camarillo that Lopez inappropriately
charged the city $18,003.95. Although Lopez attempted to impeach Camarillo’s
credibility, 7 the district court was entitled to, and evidently did, credit her
testimony. And Lopez had no contrary evidence of his own. This case is thus
unlike United States v. Desouza, 630 F. App’x 339 (5th Cir. 2016) (per curiam),
in which “no evidence was cited” to support the total restitution amount. Id. at
340. The district court’s finding that the $18,003.95 was not in furtherance of
city business was not clearly erroneous, and thus the restitution order was not
an abuse of discretion. 8




       6 Lopez does not argue that the facts found by the district court are legally insufficient
to support the restitution order, so we do not address that question. Cf. Arledge, 553 F.3d at
897.
       7 For example, with respect to the trip to El Paso, Camarillo acknowledged that she

did not know for certain where a closer recycling center was but “assum[ed] that Eagle Pass
has a good one” and that “probably Del Rio has one, too.”
       8 Lopez makes no argument relating to the $6000 component of the restitution order.

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                                  No. 18-50465
                                       B.
      Lopez next argues that the district court erred in calculating his
guideline sentencing range, in that the increases to his offense level based on
the loss amount and his purported leadership role were erroneous. We review
the district court’s interpretation and application of the sentencing guidelines
de novo and its underlying factual findings for clear error. See United States v.
Harris, 597 F.3d 242, 250 (5th Cir. 2010).
                                        1.
      “Under the Sentencing Guidelines, the offense level for offenses
involving fraud is increased based on the amount of the loss inflicted by the
defendant.” Id. at 249. “In calculating the amount of loss for purposes of the
enhancement, the district court ‘need only make a reasonable estimate of the
loss.’” United States v. Bazemore, 839 F.3d 379, 387 (5th Cir. 2016) (quoting
U.S. Sentencing Guidelines Manual, supra, § 2B1.1 cmt. n.3(C)). Additionally,
the offense level “is determined on the basis of all ‘relevant conduct’ in which
the defendant was engaged and not just with regard to the conduct underlying
the offense of conviction.” United States v. Morrow, 177 F.3d 272, 301 (5th Cir.
1999). “Relevant conduct” includes “all reasonably foreseeable acts and
omissions of others in furtherance of . . . jointly undertaken criminal activity.”
Id. at 301-02.
      As noted above, Lopez’s guideline sentencing range was calculated based
on a loss of $17,291.73—of which $6000 related to the forgiven loan from
Nguyen and the rest related to bribes paid to Lopez’s coconspirators. On
appeal, however, Lopez merely reiterates his arguments about the lack of
itemization of the evidence supporting the $24,003.95 restitution order.
Because he raises no argument about the actual basis for the district court’s
loss calculation, he fails to demonstrate any error by the district court.


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                                 No. 18-50465
                                       2.
      The sentencing guidelines provide for a four-level enhancement in cases
where “the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” U.S. Sentencing
Guideline Manual, supra, § 3B1.1(a). Alternatively, if the defendant “was a
manager or supervisor (but not an organizer or leader)” of such an activity,
then the guidelines provide for a three-level enhancement. Id. § 3B1.1(b). “A
defendant ‘must have been the organizer or leader of at least one other
participant’ to qualify as a leader/organizer,” United States v. Murray, 648 F.3d
251, 256 (5th Cir. 2011) (citation omitted), and more than one participant may
be classified as a leader or organizer, see United States v. Rodriguez, 897 F.2d
1324, 1327 (5th Cir. 1990).
      In assessing a defendant’s role as a leader/organizer, the
      Sentencing Guidelines direct a court to consider: (1) the
      defendant’s exercise of decision making authority, (2) the nature
      of the defendant’s participation in the commission of the offense,
      (3) the defendant’s claimed right to a larger share of the fruits of
      the offense, (4) the defendant’s degree of participation in the
      planning or organizing of the offense, (5) the nature and scope of
      the illegal activity, and (6) the degree of control and authority
      exercised by the defendant over others.
Murray, 648 F.3d at 256.
      Lopez argues that he was not a leader or organizer of the conspiracy
because he did not join it until it was already underway and his coconspirators
did not consider his participation integral. And he argues that he had no
control over his coconspirators and that Jonas, Rogelio Mata, and Roel Mata
received most of the profits. Moreover, although he was the mayor of the city,
Lopez observes that he had just a single vote on the city council and had no
other authority over the council’s activity. Thus he argues that, at most, he
should have received a three-level enhancement for being a manager or

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                                 No. 18-50465
supervisor. The government responds that Lopez served as a leader or
organizer of the scheme involving Nguyen, at least, even if not other aspects of
the conspiracy.
      Evidence in the record supports the district court’s conclusion that Lopez
was a leader or organizer. To be sure, Lopez was not the top man in the
conspiracy, but that is not dispositive. See, e.g., United States v. Cooper, 274
F.3d 230, 247 (5th Cir. 2001). There was evidence at trial that Lopez directed
Jonas to rename the street for Nguyen’s son, that Lopez had Jonas protect
Nguyen from the electrical inspector, and that Lopez directed Jonas to help
Nguyen obtain a business license. Indeed, Nguyen testified that Lopez told him
that he “controlled” both Jonas and the city itself. Moreover, according to the
PSR, Lopez received more in bribes than any other conspirator but Jonas.
Considering the foregoing, the district court’s finding that Lopez was a leader
or organizer was “plausible in light of the record as a whole” and thus was not
clearly erroneous. United States v. Lage, 183 F.3d 374, 383 (5th Cir. 1999).
                                       C.
      Finally, Lopez argues that the condition of supervised release banning
him from possessing or using “any psychoactive substance” was improper
because it is vague, unduly severe, and lacks any relationship to him or to his
offense.
      In crafting an order of supervised release, a district court may impose
conditions only if they are “reasonably related” to:
      (1) the nature and characteristics of the offense and the history
      and characteristics of the defendant, (2) the deterrence of criminal
      conduct, (3) the protection of the public from further crimes of the
      defendant, [or] (4) the provision of needed educational or
      vocational training, medical care, or other correctional treatment
      to the defendant.



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                                  No. 18-50465
United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009). Additionally,
the conditions imposed may not “involve a ‘greater deprivation of liberty than
is reasonably necessary for the purposes’ of the last three [of those] factors.”
United States v. Daniel, 933 F.3d 370, 382-83 (5th Cir. 2019) (quoting 18 U.S.C.
§ 3583(d)(2)).
      Because Lopez did not object below, we review his challenge for plain
error. Id. Accordingly, he must show a “clear or obvious” error that affected his
“substantial rights.” Id. at 382 (quoting United States v. Smith, 878 F.3d 498,
503 (5th Cir. 2017)). If he does, we will correct the error only if “it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quoting United States v. Figueroa-Coello, 920 F.3d 260, 264 (5th Cir. 2019)).
      The gravamen of Lopez’s argument is that “[v]arious innocuous foods,
vitamins, and beverages,” such as “coffee, cigarettes, sugar, over-the-counter
allergy medicine, sleeping pills, certain herbal supplements, [and] chocolate,”
could be classified as “psychoactive substances.” In Daniel, however, this court
confronted a similar challenge to a substantially identical condition of
supervised release; the only meaningful difference was that the condition in
that case made an exception for conduct done “with the prior approval of the
probation officer.” Id. at 376. Rejecting the defendant’s argument that the
special condition was “vague and overbroad,” this court observed that “[t]he
condition’s plain language gives explicit examples of substances the court
meant”—i.e., synthetic marijuana and so-called bath salts—and noted that the
condition was “further narrowed . . . to only those psychoactive substances
‘that impair a person’s physical or mental functioning.’” Id. at 383. And the
court remarked that if the defendant were “confused about what the special
condition encompasses, she would be free to contact her probation officer to
inquire about the propriety of specific substances or to get permission for
prohibited substances.” Id. at 383-84.
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                                  No. 18-50465
      To be sure, Lopez’s condition does not contain the same carveout for
substances taken with prior permission. But we do not believe that the absence
of this language transforms the special condition from one that is not error at
all, see id. at 383, to one that is clear or obvious error. Indeed, although the
ability to obtain an exemption from the condition may alleviate its severity, it
does nothing to make the condition less vague. And for the reasons expressed
by the court in Daniel, see id., we do not understand Lopez’s condition of
supervised release to prohibit his consumption of any of the items listed in his
parade of innocuous substances.
      Lopez observes that, in United States v. Colson, 675 F. App’x 624 (7th
Cir. 2017), the Seventh Circuit suggested that a condition of supervised release
prohibiting consumption of “psychoactive substances” would include “sleeping
pills, certain herbal supplements, and other legal substances.” Id. at 627-28.
But there the Seventh Circuit was “literally” interpreting the term
“psychoactive substances,” id., not construing the language presented in this
case, which limits the special condition to substances “that impair a person’s
physical and mental functioning” and are in some way akin to “synthetic
marijuana” and “bath salts.”
      Lopez also argues that the special condition is unrelated to his offenses
or his personal circumstances. But as the district court made clear at
sentencing, it imposed this condition out of concern that Lopez was abusing—
or at risk of abusing—prescription painkillers. The condition is thus “at least
reasonably related” to Lopez’s “history and characteristics.” Daniel, 933 F.3d
at 384. Lopez has not demonstrated that the imposition of this special condition
was clear or obvious error.
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.


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