United States v. Jesus Lopez ( 2017 )

Case: 16-40620 Document: 00513936917 Page: 1 Date Filed: 04/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40620 FILED
Summary Calendar April 3, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
JESUS LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-490-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jesus Lopez appeals the district court’s restitution order imposed
following his guilty plea to receiving and distributing child pornography in
interstate and foreign commerce, in violation of 18 U.S.C. §§ 2252A(a)(2)(A),
2252A(b)(1), and 2256. He argues for the first time on appeal that the district
court cannot order him to pay restitution for conduct not charged in the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40620
indictment, i.e. any child pornography downloaded or distributed outside the
time period of September 1, 2013, to March 31, 2015.
Our review of this unpreserved objection is for plain error. See United
States v. Mason, 722 F.3d 691, 693 (5th Cir. 2013). To succeed on plain error
review, Lopez must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.District courts are required to order restitution for offenses involving
child pornography. 18 U.S.C. § 2259(a). Generally, a restitution award can
only include losses that directly resulted from the offense of conviction.
Paroline v. United States, 134 S. Ct. 1710, 1731-32 (2014). However, “[t]he
court may also order restitution in any criminal case to the extent agreed to by
the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3); see United States v.
Maturin, 488 F.3d 657, 661 (5th Cir. 2007). This court construes a plea
agreement under normal principles of contract interpretation. United States
v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Lopez has not shown that the district court erred, plainly or otherwise.
Lopez’s plea agreement specifically provided that he would pay “full
restitution” to all victims “regardless of the count(s) of conviction.” While
Lopez argues that he interpreted the agreement to mean he would pay
restitution only to victims of charged offenses in the indictment, the plea
agreement has no such limitation against providing restitution to victims
whose images Lopez downloaded before September 2013. See United States v.
Miller, 406 F.3d 323, 329-30 (5th Cir. 2005). The district court’s interpretation
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No. 16-40620
of the plea agreement is not clearly erroneous. See id. Therefore, the judgment
of the district court is AFFIRMED.
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