Case: 22-11001       Document: 123-1         Page: 1   Date Filed: 04/25/2024




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


                               No. 22-11001
                                                                          FILED
                                                                      April 25, 2024
                             ____________
                                                                     Lyle W. Cayce
United States of America,                                                 Clerk

                                                          Plaintiff—Appellee,

                                    versus

Kyle Lamar West,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                   for the Northern District of Texas
                         USDC No. 5:22-CR-37-1
               ______________________________

Before Elrod, Willett, and Duncan, Circuit Judges.
Per Curiam:
       Kyle Lamar West appeals the part of his sentence that ordered him to
pay $6,000 in restitution. Because the PSR cites inapplicable statutes and
the district court failed to conduct a proximate-cause analysis as required by
precedent, we VACATE the restitution order and REMAND the case for
further proceedings consistent with this opinion.
                                      I
       A federal grand jury charged West with seven counts of production of
child pornography in violation of 

(a). West negotiated a plea
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                                    No. 22-11001


agreement under which he agreed to plead guilty to two counts of production
of child pornography in exchange for the government to dismiss the other
five. As part of that deal, West also agreed to waive most of his appellate
rights, with one notable exception: “[t]he defendant, however, reserves the
rights (a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum
punishment . . . .” Under the section titled “Sentence,” the plea agreement
states that “the minimum and maximum penalties the Court can impose as
to each count include: . . . restitution to victims or to the community.” West
signed a written stipulation of guilt and formally entered his guilty plea before
the magistrate judge, who found that West’s plea was knowing, intelligent,
voluntary, and supported by an adequate factual basis.
       Following West’s guilty plea, the probation office prepared a PSR that
recommended 720 months of imprisonment and $6,000 in restitution to the
victim’s mother. The PSR stated that “[t]he provisions of the Mandatory
Victim Restitution Act of 1996 apply to this Title 18 offense.” The MVRA
is codified at 18 U.S.C. § 3663A. The PSR also contained a written victim-
impact statement from the mother of the victim, in which the victim’s
mother explained the serious emotional trauma and financial hardship that
she endured, and continues to endure, as a result of West’s offense conduct.
Despite these hardships, however, the victim’s mother did not request
restitution from West. The PSR reflected that fact, as well as her intention to
seek counseling for her children.
       The PSR later stated that “the Court shall order restitution for each
victim in the full amount of the victim’s loss,” and that restitution was
mandatory because of West’s “child pornography trafficking offense”:
       Pursuant to 

(c)(3), this is a child pornography
       trafficking offense and thus restitution is mandatory as set forth
       in 

(b)(2). The court shall determine the full
       amount of the victim’s losses and shall order restitution in an




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                                  No. 22-11001


       amount that reflects the defendant’s relative role in the causal
       process that underlies the victim’s losses, but which is no less
       than $3,000. Restitution is due and owing to the following
       victim:
                                 “Jane Doe”
                                   ($6,000)
West filed a response to the PSR stating that he saw “no meritorious
objections at this time, and hereby adopts it.”
       At sentencing, the district court adopted the PSR’s factual findings
and legal conclusions, sentenced West to 720 months of imprisonment
(followed by thirty years of supervised release), and ordered him to pay
$6,000 in restitution to the victim’s mother—$3,000 for each count he
pleaded guilty to.
       In addition, the written judgment states that: “Pursuant to the
Mandatory Victims Restitution Act of 1996, the defendant shall pay
restitution in the amount of $6,000.00.” See 18 U.S.C. § 3663A. West
timely appealed.
                                       II
       We have jurisdiction under 

(a)(1), which permits
criminal defendants to appeal “an otherwise final sentence” if such sentence
“was imposed in violation of law.”
       “This court reviews de novo whether an appeal waiver bars an
appeal.” United States v. Leal, 

 (5th Cir. 2019) (quoting
United States v. Keele, 

 (5th Cir. 2014)). West made no
objection to the order of restitution at the district court. Thus, we review the
district court’s restitution order for plain error. See United States v. Maturin,

, 659–60 (5th Cir. 2007) (“Because [the defendant] failed to
object to either the amount of restitution recommended in the pre-sentence




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                                  No. 22-11001


investigation report or the district court’s restitution order . . . we review
[his] claim only for plain error.”).
                                       III
       We must first address the appeal waiver. Although West expressly
waived his right to appeal his “conviction, sentence, fine and order of
restitution,” he preserved his right to appeal “a sentence exceeding the
statutory maximum punishment.” The plea agreement defines “sentence”
to include “restitution.”      West’s appeal falls under that “statutory-
maximum exception” to his appellate waiver. As binding precedent has
repeatedly held, orders of restitution without a proximate-cause analysis
constitute sentences above the statutory maximum. United States v. Winchel,

 (5th Cir. 2018) (holding that a restitution order under
§ 2259 “necessarily exceeds the statutory maximum” absent a proximate-
cause analysis); Leal, 

 (holding that the appeal waiver did not
apply because “a district court imposes a sentence expressly foreclosed by
statute when it orders restitution under § 2259 for losses not proximately
caused by the defendant”); United States v. Chem. & Metal Indus., Inc., 

 (5th Cir. 2012) (holding in the § 3664 context that the appellate
waiver did not apply because a restitution order exceeds the statutory
maximum when the “record contains no evidence regarding the amount of
pecuniary loss suffered by” the defendant)). “In sum, based on our prior
case law it is clear that an otherwise valid appeal waiver is not enforceable to
bar a defendant’s challenge on appeal that his sentence, including the amount
of a restitution order, exceeds the statutory maximum . . . .” United States v.
Kim, 

 (5th Cir. 2021).
       Under § 2259, an order of restitution without a proximate-cause
analysis is punishment exceeding the statutory maximum. Paroline v. United
States, 

 (2014) (holding that restitution orders under 18




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                                   No. 22-

 are unlawful absent a proximate-cause analysis); Winchel, 

 (holding that a restitution order under § 2259 “necessarily
exceeds the statutory maximum” absent a proximate-cause analysis). In
Paroline, the Supreme Court held that restitution orders issued under 

 (the mandatory restitution provision covering various offenses
related to child pornography) were proper “only to the extent the
defendant’s offense proximately caused a victim’s losses.” 

(emphasis added).
       Following Paroline, our court held that a defendant’s “Paroline-based
appeal of the district court’s restitution order f[ell] within the meaning of a
direct appeal of a sentence exceeding the statutory maximum punishment.”
Winchel, 

 (internal quotation marks omitted). “[I]f 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.”                Id.
(emphasis added); see also Chem. & Metal Indus., Inc., 

 (holding
that a restitution order exceeded the statutory maximum because the “record
contain[ed] no evidence regarding the amount of pecuniary loss suffered by”
the defendant); Leal, 

 (extending Winchel to apply even where
the defendant did not explicitly reserve the right to bring a statutory
maximum challenge).
       West points out that the district court failed to conduct a proximate-
cause analysis altogether. The record in this case is devoid of any proximate-
cause analysis performed by the district court as required by Paroline. It
contains only a free-floating restitution order of $6,000, untethered to any
determination of the loss suffered by the victim in this case. 1 Indeed, the
       _____________________
       1
          Ostensibly, the $6,000 figure comes from the inapplicable 

(b)(2). That subsection imposes a $3,000 statutory minimum for trafficking-in-




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                                     No. 22-11001


record lacks any dollar amount, or even a dollar range, approximating the
amount of the victim’s losses.
        Binding precedent holds that an order of restitution absent a
proximate-cause analysis is an illegal sentence in excess of the statutory
maximum. Chem. & Metal Indus., Inc., 

 (“[A]n order of
restitution that exceeds the victim’s actual losses or damages is an illegal
sentence.” (quoting United States v. Middlebrook, 

 (7th Cir.
2009))); see also Winchel, 

; Leal, 

 (“But a
district court imposes a sentence expressly foreclosed by statute when it
orders restitution under § 2259 for losses not proximately caused by the
defendant.”); Kim, 

 (holding that an appeal waiver is
unenforceable as to a challenge that the defendant’s sentence, including any
order of restitution, exceeds the statutory maximum).
       This case is unlike our court’s decisions in United States v. Meredith
and United States v. Alfred. In those cases, the defendant argued that the
district court erred in its proximate-cause analysis and that as a result the
restitution order exceeded the statutory maximum. United States v. Meredith,

, 987 n.3 (5th Cir. 2022); United States v. Alfred, 

,
982 (5th Cir. 2023). At bottom, the appellate waiver in those cases applied
to the defendant’s claims because both of those cases were challenges to the
methodology used by the district court to conduct its Paroline analysis.
Meredith, 

; Alfred, 60 F.4th at 982. That is entirely different
from Winchel and Leal, which were cases in which “the district courts failed
to conduct the requisite analysis altogether.” Alfred, 60 F.4th at 982
(emphasis added). In other words, an appeal waiver like West’s applies if the
        _____________________
child-pornography offenses. Because West pleaded guilty to two counts (albeit to
production of child pornography), $6,000 would be the statutory minimum if West had been
convicted of an offense covered by § 2259(b)(2).




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defendant’s argument is that there was a calculation error, but not if the
district court failed to conduct the mandatory proximate-cause analysis
altogether.
       Here, as in Winchel and Leal, the district court failed to conduct the
proximate-cause analysis required by Paroline. Thus, under the clear caselaw
of both the Supreme Court and our court, West’s challenge to his restitution
order survives the appellate waiver in his plea agreement under the statutory-
maximum exception. This is particularly appropriate where the government
and the district court cited inapplicable statutes as justification for the order
of restitution.
                                       IV
       Because West’s challenge to his restitution order survives the
appellate waiver in his plea agreement, we next examine whether the failure
to conduct a proximate-cause analysis is plain error.
       The parties agree that because West did not object to his restitution
order before the district court, plain error review applies to 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, 

 (5th Cir. 2012) (en banc)
(quoting Puckett v. United States, 

 (2009)).




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       Here, there are two related errors. First, the PSR erroneously refers
to two inapplicable statutes: 18 U.S.C. § 3663A, and 

(b)(2).
For example, the PSR states that West’s offense was a “child pornography
trafficking offense and thus restitution is mandatory as set forth in
[§ 2259(b)(2)].” The written judgment also grounds the restitution order in
the MVRA (§ 3663A).
       18 U.S.C. § 3663A is inapplicable, however, because offenses related
to child pornography are covered by 

, which applies
“[n]otwithstanding section 3663 or 3663A.”             

(a).
Section 2259(b)(2) is inapplicable because that subsection applies only to
restitution orders for trafficking in child pornography. Despite what the PSR
says, West’s conviction under § 2251(a) does not qualify as trafficking in child
pornography.    See 

(c)(3) (defining trafficking in child
pornography). West pleaded guilty to two counts of production of child
pornography under 

(a). The government admits that it was
error to cite to these two inapplicable statutes. Oral Argument at 23:30–
24:30. Therefore, the district court erroneously ordered restitution under
inapplicable statutes.
       The only statutory authority under which West could receive an order
of restitution is 

(b)(1), which permits orders of restitution
in “the full amount of the victim’s losses.” However, even had the district
court grounded the order of restitution in § 2259(b)(1), its restitution order
would still exceed the statutory maximum permitted by § 2259(b)(1). This
is because of the second error: the record lacks evidence of any analysis
approximating the loss caused by West’s offense as required by statutory law
and binding precedent. See 

; Paroline, 

 (a
restitution award under § 2259 is proper “only to the extent the defendant’s
offense proximately caused a victim’s losses”).




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       The government attempts to defend these errors by arguing that West
has not shown that the district court relied on the PSR when it ordered
restitution.   This argument is unpersuasive because the district court
explicitly adopted the PSR’s “factual findings and legal conclusions” during
the sentencing hearing. Furthermore, the written judgment relies on an
inapplicable statute. Both the citation to inapplicable statutes and the failure
to conduct a Paroline proximate-cause analysis are clear and obvious errors
not subject to reasonable dispute. See Winchel, 

.
       This leaves prongs three and four of the plain error analysis. As for
those prongs, we have previously held that a restitution order under § 2259
that is “in an amount greater than the loss caused” necessarily affects the
appellant’s substantial rights, as well as the fairness, integrity, or public
reputation of judicial proceedings. United States v. Austin, 

(5th Cir. 2007); Winchel, 

. Here, the record contains no dollar
figures or ranges approximating the amount of loss. Nor does it contain any
analysis of the amount of loss caused by West’s offense. Thus, based on the
record developed by the government, no evidence ties West’s offense to any
of the victim’s losses. Therefore, any amount of restitution above zero
dollars necessarily exceeds the amount proximately caused.
       Further, statutory law makes clear that the government must prove
the amount of the victim’s loss attributable to the defendant. 18 U.S.C.
2259(c)(2) (defining the victim’s losses in terms of “costs incurred” or
“reasonably projected to be incurred in the future”). Section 2259(b)(3)
provides that “[a]n order of restitution under this section shall be issued and
enforced in accordance with section 3664.” 

(b)(3). Section
3664 in turn states that “[t]he burden of demonstrating the amount of the
loss sustained by a victim as a result of the offense shall be on the attorney for
the Government.” 

(e).




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       Thus, where no proximate-cause analysis was conducted, there is no
basis upon which the district court can order any amount of restitution. See
Winchel, 896 F.3d at 389–90 (vacating a restitution order on plain error and
remanding to the district court because no proximate-cause determination
was made); United States v. Etheridge, No. 22-40516, 

, at
*4 (5th Cir. Aug. 21, 2023) (unpublished) (stating that it is the government’s
burden to “provid[e] the court with enough evidence to estimate the victim’s
losses with some reasonable certainty” (citing United States v. Reese, 

, 1282–84 (5th Cir. 1993))). An order of restitution affects a defendant’s
substantial rights when the district court is not authorized to order restitution
and the sentence exceeds the statutory maximum. Austin, 

;
Winchel, 

.
       Our court’s binding precedent also holds that failure to conduct a
proximate-cause analysis “seriously undermine[s]” the fairness, integrity,
and public reputation of judicial proceedings. Winchel, 

; see
Austin, 

 (“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.”); Maturin, 488
F.3d at 663–64 (vacating and remanding under plain error review in the
§ 3663 context because the district court ordered restitution greater than
what was supported by the record); United States v. Jimenez, 

, 200–03 (5th Cir. 2017) (per curiam) (vacating and remanding a
restitution order under § 2259 on plain error review because “the district
court erred in imposing restitution based on this record”); Etheridge, 

, at *4–5 (vacating and remanding in the § 2259 context on plain
error review because the government did not submit evidence of costs). This
makes good sense. A judicial proceeding can hardly be called fair if it results
in an order of restitution based on no evidence and no causal link.




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                                         No. 22-11001


                                              V
        The parties dispute the proper remedy for this plain error. The
government, for its part, contends that we should remand so that it can enter
evidence of the loss to the victim caused by West’s offense. See Jimenez, 

 (permitting the government to present additional evidence
on remand).
        West points out that “[t]he government generally may not present
new evidence on remand when reversal is required due to the failure to
present evidence originally.” Chem. & Metal Indus., 

.
        Although West properly cites the general rule, our court has noted
some exceptions. These include: (1) “where the government’s burden was
unclear”; (2) “where the trial court prohibited discussion of the issue”; (3)
“where the evidence was, for a good reason, unavailable”; and (4) where the
victims attempted to assist the government in calculating the restitution
amount and the harm resulting from the government’s failure to present
evidence fell on the victims. United States v. Villalobos, 

 (5th
Cir. 2018). Our court has previously allowed district courts to determine in
the first instance whether the government can present new evidence
justifying the order of restitution. See 

 It is prudent to allow the district
court to do the same here. 2
                                     *        *         *
        Under Supreme Court and our precedent, the district court plainly
erred by failing to conduct any proximate-cause analysis connecting West’s

        _____________________
        2
          We note that this may well lead to a restitution order requiring West to pay far
more than the $6,000 he was initially ordered to pay. It is not for us to question litigation
strategy and counsel assured us that West was well aware of the risks inherent in his
argument. Oral Argument at 5:23–6:03.




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                                No. 22-11001


offense conduct to the loss suffered by the victim. We therefore VACATE
the district court’s restitution order and REMAND the case for further
proceedings consistent with this opinion.




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