     Case: 12-40469       Document: 00512450285         Page: 1     Date Filed: 11/22/2013




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

                                                                            FILED
                                                                        November 22, 2013
                                       No. 12-40469
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

v.

XAVIER DEGOLLADO,

                                                  Defendant - Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-01824


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Xavier Degollado pleaded guilty to receiving child pornography in violation
of 18 U.S.C. § 2225A(a)(2)(A). The district court sentenced Degollado to 210
months in prison and ordered him to pay restitution. On appeal, Degollado
argues that the district court improperly applied a sentence enhancement
pursuant to U.S.S.G. § 2G2.2(b)(3)(B). Degollado also argues that the district
court erred in calculating the restitution award. Because Degollado waived the
sentence enhancement issue and because we find no error in the order of


       *
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40469

restitution, we AFFIRM.
                                           I.
      In August 2011, Immigration and Customs Enforcement (“ICE”)
commenced an investigation to discover persons using peer-to-peer (“P2P”)
networks to traffic in child pornography. ICE located a specific computer,
connected to the internet at an address in McAllen, Texas, that was
participating in the exchange of child pornography over a P2P network. ICE
then executed a search warrant at the McAllen location, where Degollado
resided, and recovered the computer.            Degollado admitted to owning the
computer and to utilizing a P2P network to download child pornography.
Degollado explained that he was aware that his child pornography files, which
he stored in a “shared folder,” were accessible by others on the P2P network.
According to the supervising ICE agent, during the course of the investigation,
Degollado had shared approximately seventy-two images and sixteen videos with
P2P user accounts operating under ICE control. A forensic examination revealed
that the computer contained approximately five-hundred images and sixty-six
videos of children engaged in sexually explicit conduct, including several
children identified by the National Center for Missing and Exploited Children
(“NCMEC”).1 One of these children was associated with the “Vicky” series.
      A grand jury indicted Degollado in November 2011 on one count of
receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).2

      1
          NCMEC maintains a computerized database of images of children that have been
exploited in child pornography. NCMEC separates recurring images of identifiable children
into “series.”
      2
         Under § 2252A(a)(2)(A), it is unlawful to “knowingly receive[] . . . any child
pornography that has been mailed, or using any means or facility of interstate or foreign


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                                      No. 12-40469

Degollado pleaded guilty to the one-count indictment in January 2012.
       In the Presentence Investigation Report (“PSR”), the probation officer
recommended a five-level increase in Degollado’s offense level pursuant to
U.S.S.G. § 2G2.2(b)(3)(B) because the crime involved the distribution of child
pornography “for the receipt, or expectation of receipt, of a thing of value, but not
for pecuniary gain.” Degollado filed an objection to the PSR’s recommendation,
and the probation officer responded that the enhancement was warranted
because Degollado had participated in the exchange of child pornography for
other child pornography. At the sentencing hearing in March 2012, Degollado’s
counsel again objected to the five-level increase. Counsel then argued:
       [T]here was never any money transferred in this case and the way
       I understand the procedure in these chat rooms, so to speak, is that
       it is a bartering sort of exchange and just to point out to the Court
       that other than videos or the images, that there was never a thing
       of value.
Overruling the objection and adopting the PSR’s recommendation, the district
court concluded that the images and videos constituted things of value for the
purpose of § 2G2.2(b)(3)(B). The district court sentenced Degollado to 210
months in prison.3
       At a separate restitution hearing in June 2012, the district court concluded
that restitution was mandatory under 18 U.S.C. § 2559(b)(1) and that Degollado



commerce shipped or transported in or affecting interstate or foreign commerce by any means,
including by computer.”
       3
         Degollado’s offense level was 37, and his criminal history category was I, resulting
in a Guidelines range of 210 to 262 months in prison. Because § 2252A(b)(1) provides for a
maximum sentence of 240 months, however, Degollado’s effective Guidelines range was 210
to 240 months in prison.


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                                  No. 12-40469

was jointly and severally liable for the losses suffered by the “Vicky” series
victim. In doing so, the district court ruled that the types of losses listed under
§ 2259(b)(3)(A)S(E) do not require a finding of proximate cause, but that those
listed under § 2559(b)(3)(F) do require such a finding. The district found that
Degollado had proximately caused the subparagraph (F) losses. Accordingly,
based on evidence of costs supplied by the “Vicky” series victim’s attorney, the
district court concluded that the victim’s losses totaled $765,067.67 (including
$42,241.04 under subparagraph (F) for the attorney’s costs for forensic
evaluations, supporting records, and travel related to the “Vicky” series victim’s
case) and ordered restitution in that amount. The final judgment reflects only
the total amount of restitution ordered and is not broken down into categories
of losses. Degollado objected to the order of restitution.
      Degollado timely appealed, challenging his sentence of imprisonment on
the grounds that merely placing files in the “shared folder” does not warrant the
application of § 2G2.2(b)(3)(B).      Degollado also challenges the order of
restitution. We address each issue in turn.
                                        II.
      The United States argues that Degollado has either waived or forfeited his
right to appeal the application of the sentence enhancement. “Waiver and
forfeiture are two different means by which a defendant may react to an error
made by the government or the district court.” United States v. Dodson, 288
F.3d 153, 160 (5th Cir. 2002).        Waiver is the intentional and knowing
relinquishment of a right. United States v. Olano, 507 U.S. 725, 733 (1993).
Waiver occurs when a defendant makes “an affirmative choice . . . to forego any
remedy available to him, presumably for real or perceived benefits.” Dodson,


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                                  No. 12-40469

288 F.3d at 160. Waived errors are unreviewable on appeal. Id. at 160–61.
Forfeiture, by contrast, “is the failure to make a timely assertion of a right.”
Olano, 507 U.S. at 733. Where a defendant “has failed to make his objection the
guidelines calculation sufficiently clear, the issue is considered forfeited, and we
review only for plain error.” United States v. Chavez–Hernandez, 671 F.3d 494,
497. Plain error review requires the court to determine: whether any error was
plain or obvious, whether the error affected the defendant’s substantial rights,
and whether the court must correct the error in order to prevent a manifest
miscarriage of justice. Id.
      We conclude that, based on the sentencing hearing colloquy, Degollado has
waived any error regarding the application of § 2G2.2(b)(3)(B). The five-level
increase applies to “any transaction, including bartering or other in-kind
transaction, that is conducted for a thing of value, but not for profit.” § 2G2.2
app. n.1. Moreover, a “thing of value” is defined as “anything of valuable
consideration” and is illustrated by an example in the Application Note: “[I]n a
case involving the bartering of child pornographic material, the ‘thing of value’
is the child pornographic material received in exchange for other child
pornographic material bartered in consideration for the material received.” Id.
Degallado’s counsel admitted at sentencing that Degollado had engaged in a
“bartering sort of exchange” for images and videos, thereby admitting that
Degollado had engaged in the specific activity addressed by § 2G2.2(b)(3)(B). It
is irrelevant that no other “things of value” beyond the images and videos were
involved in Degollado’s offense: as the district court noted, images and videos
are themselves “things of value” sufficient to support the application of the
enhancement. Accordingly, Degollado made an “affirmative choice” to concede


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                                  No. 12-40469

that he bartered for “things of value.” This issue is therefore unreviewable.
      Assuming arguendo that Degollado did not waive the right to appeal the
enhancement, we conclude that he has nonetheless forfeited that right.
Degallado’s counsel’s explanation of the objection at the sentencing hearing
reveals that he only objected to the extent that other “things of value” beyond
images and videos were not part of the bartering. Counsel never objected to the
issue he raises today—i.e., whether the “sharing” of images and videos was
sufficient to trigger the enhancement. The objection was therefore insufficiently
clear, and plain error review applies. Accordingly, because Degollado utterly
fails to establish the requirements for plain error, we find no reversible error.
                                        III.
      We turn now to Degollado’s challenge to the restitution award, which
amounted to $765,067.67. Section 2259 provides for mandatory restitution for
child victims of sexual exploitation offenses, including the crime of receiving
child pornography. An order of restitution under that section “shall direct the
defendant to pay the victim . . . the full amount of the victim’s losses,” including
      (A)   medical services relating to physical, psychiatric, or psychological
            care;
      (B)   physical and occupational therapy or rehabilitation;
      (C)   necessary transportation, temporary housing, and child care
            expenses;
      (D)   lost income;
      (E)   attorneys’ fees, as well as other costs incurred; and
      (F)   any other losses suffered by the victim as a proximate result of the
            offense.
§ 2259(b)(3)(A)S(F). The district court may resolve “[a]ny dispute as to the
proper amount or type of restitution . . . by the preponderance of the evidence.”
18 U.S.C. § 3664(e). The United States bears the burden of demonstrating the


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                                       No. 12-40469

amount of the loss. Id. We review the legality of a restitution order de novo and,
if the order is legally permitted, the amount of the order for abuse of discretion.
In re Amy Unknown, 701 F.3d 749, 759 (5th Cir. 2012) (en banc), cert. granted,
Paroline v. United States, 133 S. Ct. 2886 (2013).
       Degollado argues that the district court committed legal error by not
requiring the United States to prove that his offense was the “proximate cause”
of the “Vicky” series victim’s losses under § 2259(b)(3)(A)S(E).4 This argument
is foreclosed by our recent en banc decision, In re Amy, wherein we held that the
types of losses listed in § 2259(b)(3)(A)S(E) do not require a finding of proximate
causation. 701 F.3d at 762 (“The structure and language of § 2259(b)(3) limit the
phrase ‘suffered by the victim as a proximate result of the offense’ in
§ 2259(b)(3)(F) to the miscellaneous ‘other losses’ contained in that subsection.”).
Degollado does not challenge the amount of restitution ordered for the losses
ordered under subparagraphs (A)–(E).
       Degollado does challenge, however, the $42,241.04 portion of the award,
which the district court concluded was comprised of “other losses” under
§ 2259(b)(3)(F). Degollado argues that the United States failed to demonstrate
proximate cause sufficiently. We need not engage in any proximate cause
analysis, however.        Because these losses—costs for forensic evaluations,
supporting records, and travel, all of which were costs incurred by the victim’s
attorney—fall within the categories listed in subparagraphs (A)–(E), proximate


       4
         As an initial matter, Degollado does not dispute that the victim to whom the district
court ordered restitution be paid is a “victim” under § 2259. See In re Amy, 701 F.3d at 773
(“[W]here a defendant is convicted of possessing, receiving, or distributing child pornography,
a person is a victim under [§ 2259] if the images the defendant possesses, receives, or
distributes include those of that individual.”).


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                                 No. 12-40469

cause is not required. The final judgment does not reflect that these losses were
ordered only under subparagraph (F), and we may affirm on any grounds
supported by the record. United States v. McSween, 53 F.3d 684, 687 n.3 (5th
Cir. 2001). Accordingly, we find no reversible error in the order of restitution.
AFFIRMED.




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