United States v. Avila

Case: 22-10187 Document: 00516672399 Page: 1 Date Filed: 03/10/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

March 10, 2023

No. 22-10187 Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Rudy Avila,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:21-cr-168-1

Before Clement, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

After years of running a scheme that defrauded dozens of victims, Rudy Avila eventually pleaded guilty to a single count of wire fraud. He was later sentenced to 210 months in prison (followed by three years supervised release) and was ordered to pay $14,955,313 in restitution.

On appeal, Avila argued that the record lacked sufficient evidence to sustain his guilty plea. But after the government supplemented the record

Case: 22-10187 Document: 00516672399 Page: 2 Date Filed: 03/10/2023

No. 22-10187 pointing to the evidence Avila claimed missing, Avila now concedes that his plea was in fact properly accepted and the issues he raised in his initial brief are resolved.

In his reply brief, however, he now argues that the district court’s restitution order violated the Mandatory Victim Restitution Act because it included restitution to an as-of-yet unidentified victim. But Avila failed to challenge the restitution order either before the district court or in his initial brief. Generally, any argument not raised in an opening brief is forfeited. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017). While we retain the “discretion to decide legal issues that are not timely raised,” United States v. Myers, 772 F.3d 213, 218 (5th Cir. 2014), we decline to exercise such discretion now.

The district court is therefore AFFIRMED. 1