     Case: 16-11208   Document: 00514556710        Page: 1   Date Filed: 07/16/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals

                                    No. 16-11208
                                                                         Fifth Circuit

                                                                       FILED
                                                                   July 16, 2018

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

v.

CHRISTIAN WINCHEL,

             Defendant - Appellant




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


Before KING, JONES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      After entering into a plea agreement with the Government, Defendant-
Appellant Christian Winchel pleaded guilty to one count of producing child
pornography in violation of 18 U.S.C. § 2251(a), one count of transporting child
pornography in violation of 18 U.S.C. § 2252A(a)(1), and one count of
possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The
district court sentenced Winchel to 600 months in prison and ordered him to
pay $1,443,619.63 in restitution pursuant to 18 U.S.C. § 2259. On appeal,
Winchel argues that the restitution order contravenes Paroline v. United
States, 134 S. Ct. 1710 (2014), because the district court failed to determine
whether his conduct proximately caused the victims’ alleged losses.
    Case: 16-11208     Document: 00514556710      Page: 2   Date Filed: 07/16/2018



                                  No. 16-11208
                                         I
      The Government moves to dismiss Winchel’s appeal based on a waiver
provision in the plea agreement. The provision states that “Winchel waives his
rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his
convictions and sentences” but “reserves the right[] . . . to bring a direct appeal
of a sentence exceeding the statutory maximum punishment.”
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). It is undisputed that
Winchel knowingly and voluntarily agreed to the appeal waiver. The sole
question is “whether the waiver applies to the circumstances at hand, based
on the plain language of the [plea] agreement.” United States v. Bond, 414 F.3d
542, 544 (5th Cir. 2005). “In determining whether a waiver applies, this court
employs ordinary principles of contract interpretation, construing waivers
narrowly and against the Government.” Keele, 755 F.3d at 754 (citing United
States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006)). “We construe any
ambiguity in the plea agreement against the Government.” United States v.
Burns, 433 F.3d 442, 445 n.2 (5th Cir. 2005) (quoting United States v. De Los
Santos, 152 F. App’x 375, 377 (5th Cir. 2005)); accord United States v.
Martinez, 263 F.3d 436, 438 (5th Cir. 2001).
      Winchel’s Paroline-based appeal of the district court’s restitution order
falls within the meaning of “a direct appeal of a sentence exceeding the
statutory maximum punishment.” Section 2259 authorizes a court to order
restitution, but only to the extent it is shown that the defendant in question
proximately caused the victim’s losses. Paroline, 134 S. Ct. at 1720–22. Thus,
if a court orders a defendant to pay restitution under § 2259 without
determining that the defendant’s conduct proximately caused the victim’s
claimed losses, the amount of restitution necessarily exceeds the statutory
maximum. See United States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752
                                        2
    Case: 16-11208     Document: 00514556710      Page: 3    Date Filed: 07/16/2018



                                  No. 16-11208
(5th Cir. 2012); United States v. Gordon, 480 F.3d 1205, 1209–10 (10th Cir.
2007); see also United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir.
1995) (“Because a restitution order imposed when it is not authorized . . . is no
less ‘illegal’ than a sentence of imprisonment that exceeds the statutory
maximum, appeals challenging the legality of restitution orders are similarly
outside the scope of a defendant’s otherwise valid appeal waiver.”).
      Because Winchel did not waive his right to bring this appeal, the
Government’s motion to dismiss is DENIED.
                                        II
      The parties agree that since Winchel did not object to the restitution
order in the district court, plain error review governs the merits of his appeal.
      The Supreme Court has identified four requirements for reversing
      a trial court based upon plain error review: (1) “there must be an
      error or defect—some sort of [d]eviation from a legal rule—that has
      not been intentionally relinquished or abandoned”; (2) “the legal
      error must be clear or obvious, rather than subject to reasonable
      dispute”; (3) “the error must have affected the appellant’s
      substantial rights”; and (4) “if the above three prongs are satisfied,
      the court of appeals has the discretion to remedy the error—
      discretion which ought to be exercised only if the error seriously
      affect[s] the fairness, integrity or public reputation of judicial
      proceedings.”

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). The Government
concedes that the first three prongs are satisfied in this case but argues that
we should decline to correct the district court’s plain error under the fourth
prong.
      “[I]t is well established that courts ‘should’ correct a forfeited plain error
that affects substantial rights ‘if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1906 (2018) (quoting United States v. Olano,
                                         3
    Case: 16-11208     Document: 00514556710     Page: 4   Date Filed: 07/16/2018



                                  No. 16-11208
507 U.S. 725, 736 (1993)). That standard is easily satisfied in the present case.
When a court orders a defendant to pay nearly $1.5 million in restitution
without determining whether that amount complies with a basic statutory
requirement—in this case, § 2259’s proximate causation requirement—the
fairness, integrity, and public reputation of judicial proceedings are seriously
undermined. See Rosales-Mireles, 138 S. Ct. at 1908, 1910 (observing that “the
public legitimacy of our justice system relies on procedures that are neutral,
accurate, consistent, trustworthy, and fair, and that provide opportunities for
error correction” and that “a sentence that lacks reliability because of unjust
procedures may well undermine public perception of the proceedings” (citation
and internal quotation marks omitted)); Paroline, 134 S. Ct. at 1729
(“Restitution orders should represent ‘an application of law,’ not ‘a
decisionmaker’s caprice.’” (quoting Philip Morris USA v. Williams, 549 U.S.
346, 352 (2007))).
      Given the length of his prison term and the amount of his current assets,
the Government deems it unlikely that Winchel will ever pay restitution and
contends that the “highly remote chance” that he will is insufficient to justify
the further proceedings that compliance with Paroline requires. We disagree.
The fact that the district court entered a legally binding restitution order
without ensuring that the amount was authorized by statute is sufficient to
warrant our exercise of discretion under the fourth prong of plain error review.
See United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007) (plain error
standard “easily” met where the district court’s error regarding the scope of its
authority to order restitution “increased the amount of restitution that [the
defendant] was ordered to pay by over $100,000”); 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.”).
                                        4
    Case: 16-11208   Document: 00514556710   Page: 5   Date Filed: 07/16/2018



                              No. 16-11208
     Accordingly, the restitution order is VACATED, and the case is
REMANDED to the district court for further proceedings.




                                    5
