United States v. Leal

• Citation: 933 F.3d 426
• Decision Date: 05 August 2019
• Docket Number: No. 16-11330,16-11330
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Brandon Gregory LEAL, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

933 F.3d 426

UNITED STATES of America, Plaintiff - Appellee

v.Brandon Gregory LEAL, Defendant - Appellant

No. 16-11330

United States Court of Appeals, Fifth Circuit.

FILED August 5, 2019

Joseph Andrew Magliolo, Esq., Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff - Appellee.

Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant - Appellant.

Brandon Gregory Leal, Pro Se.

Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Defendant Brandon Leal pleaded guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1). The district court sentenced Leal to 240 months imprisonment and ordered Leal to pay $58,415 in restitution to "Andy," a victim depicted in Leal’s materials. On appeal, Leal seeks to vacate the order of restitution, contending that it was imposed in violation of the proximate cause requirements described in Paroline v. United States , 572 U.S. 434, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). We affirm the district court.

I.

Leal stipulated that in December 2014, he traveled from Canada into the United States with electronic devices containing hundreds of images and dozens of videos of child pornography. Some depicted sadistic acts involving children, and some depicted infants or toddlers.

In relevant part, Leal’s plea agreement stated that the district court could impose a sentence including "restitution to victims or to the community, which is mandatory under the law." The agreement noted, "The defendant fully understands that the actual sentence imposed (so long as it is within the statutory maximum) is solely in the discretion of the Court." Finally, the agreement contained an appeal waiver stating in full:

The defendant waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal his conviction, sentence, fine, order of restitution, and forfeiture order in amount to be determined by the district court. He also waives his right to contest his conviction, sentence, fine, order of restitution and forfeiture order in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. The defendant, however, reserves the rights (a) to challenge the voluntariness of his plea of guilty or this waiver, and (b) to bring a claim of ineffective assistance of counsel.

The Pre-Sentence Report initially found restitution inapplicable. After the PSR was completed, Andy submitted his restitution request and the government sought to amend the PSR accordingly. Two weeks before sentencing, the Probation Office filed an addendum to the PSR recommending that Leal be ordered to pay $58,415, the full amount sought by Andy.

The addendum attached the twenty-one-page restitution request submitted by Andy’s attorney. The letter explained that beginning when Andy was seven and continuing until Andy was twelve, Andy was sexually abused by an older man (not Leal) who made and circulated "graphic video recordings of his sexual abuse of Andy" in which Andy was "clearly recognizable." Relying on reports from a forensic psychologist and an economist, Andy estimated that he had suffered losses of $267,038 in future psychological counseling costs and $1,854,925 in future lost income, totaling $2,121,963 in general losses "stem[ming] from the actions of defendant Leal as well as other criminals." Andy acknowledged that Leal did not appear to be "directly connected to the initial production of his images," but had harmed Andy by possessing Andy’s images.¹ Andy argued that Leal should be responsible for $25,000 of Andy’s general losses. Andy also sought to recover $33,415 for the forensic psychologist’s and economist’s fees.

Leal was sentenced on August 15, 2016, at a consolidated sentencing hearing that combined the instant case with a related case, in which Leal had pleaded guilty to possessing child pornography and to being a felon in possession of a firearm. At sentencing, Leal confirmed that he had reviewed the PSR and the addendum and raised no objections. The district court adopted the factual contents of the PSR and addendum and ordered Leal to pay Andy $58,415 in restitution.

On August 30, 2016, Leal filed a pro se notice of appeal from "the judgment and sentences imposed by this court on August 15th, 2016." Leal’s notice of appeal was timely. However, it was filed only in the related case, not in the present case, and hence arguably failed to "designate the judgment, order, or part thereof being appealed" as required by Rule 3(c)(1)(B). Fed. R. App. P. 3. We find that this omission is not a jurisdictional defect. "Courts will liberally construe the requirements of Rule 3." Smith v. Barry , 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). "[A] mistake in designating a judgment appealed from should not bar an appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake." United States v. Knowles , 29 F.3d 947, 949 (5th Cir. 1994) (quotation omitted). Here, Leal’s intent to appeal the sentence in the present case can be fairly inferred from his plural reference to the "sentences imposed ... on August 15th, 2016," especially because pro se notices of appeal are liberally construed. See Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ; Edwards v. Joyner , 566 F.2d 960, 961 n.3 (5th Cir. 1978). Further, the government does not argue that it has been prejudiced or misled. We are satisfied that we have jurisdiction. See, e.g. , United States v. Servellon , 534 F. App'x 252, 252 (5th Cir. 2013) ; United States v. Donjuan-Gonzalez , 268 F. App'x 276, 276–77 (5th Cir. 2008).

II.

Title 18 U.S.C. § 2259 requires district courts to order restitution for certain child pornography offenses, including Leal’s offense of transporting child pornography. The Supreme Court’s decision reversing our court in Paroline provides that restitution is "proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses." 572 U.S. at 448, 134 S.Ct. 1710. Leal argues that the district court failed to adequately analyze whether Leal proximately caused Andy’s losses. As a threshold matter, the government counters that Leal’s appeal is barred by his appeal waiver.

"The right to appeal a conviction and sentence is a statutory right, not a constitutional one, and a defendant may waive it as part of a plea agreement." United States v. Baymon , 312 F.3d 725, 727 (5th Cir. 2002). "This court reviews de novo whether an appeal waiver bars an appeal." United States v. Keele , 755 F.3d 752, 754 (5th Cir. 2014). We generally enforce a waiver that "was knowing and voluntary, and if the waiver applies to the circumstances at hand." United States v. Walters , 732 F.3d 489, 491 (5th Cir. 2013) (citing United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005) ). Here, Leal does not dispute, and the record indicates, that the waiver was knowing and voluntary.

We determine the scope of an appeal waiver by examining "the plain language of the plea agreement," "employ[ing] ordinary principles of contract interpretation" and "construing waivers narrowly and against the Government." Keele , 755 F.3d at 754 (citations omitted); cf. Puckett v. United States , 556 U.S. 129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ("Although the analogy may not hold in all respects, plea bargains are essentially contracts."). An appeal waiver, even if applicable, does not deprive this court of jurisdiction. United States v. Story , 439 F.3d 226, 230 (5th Cir. 2006).

Leal’s " Paroline -based appeal of the district court’s restitution order" is, according to our precedent, an "appeal of a sentence exceeding the statutory maximum punishment." United States v. Winchel , 896 F.3d 387, 389 (5th Cir. 2018) ; see also United States v. Chem. & Metal Indus., Inc. , 677 F.3d 750, 752 (5th Cir. 2012) ( CMI ). In Winchel , we held that a defendant could bring a Paroline challenge to a restitution order where the defendant’s appeal waiver expressly reserved the right to appeal a sentence "exceeding the statutory maximum punishment." 896 F.3d at 389–90. Leal’s appeal differs from Winchel’s in that Leal did not expressly reserve the right to raise a statutory maximum challenge. But that difference is of no moment because as we explained in Keele , "an ‘in excess of the statutory maximum’ challenge, if properly raised on appeal, would not be barred by an appeal waiver." 755 F.3d at 756 (citing CMI , 677 F.3d at 752 ).

Keele did not delve into justifications for its rule, but our reasoning in United States v. White , 258 F.3d 374, 380 (5th Cir. 2001), is instructive and apposite. White is one in a series of our decisions affirming that "even if there is an unconditional plea of guilty or a waiver of appeal provision in a plea agreement, this Court has the power to review if the factual basis for the plea fails to establish an element of the offense which the defendant pled guilty to." Baymon , 312 F.3d at 727 (listing cases). White pleaded guilty to violating 18 U.S.C. § 922(g)(9) by possessing a firearm after having been previously convicted of a "misdemeanor crime of domestic violence." 258 F.3d at 376. On appeal, White asserted that neither of the two predicate offenses listed in the indictment was a misdemeanor crime of domestic violence, whereas the government argued that White’s appeal was foreclosed by his appeal waiver. The court sided with White.

White first questioned whether a defendant could ever "waive his substantive right ‘to be free of prosecution under an indictment that fails to charge an offense.’ " Id. at 380 (quoting United States v. Meacham , ...