United States v. Patrick Bigelow , 459 F. App'x 451 ( 2012 )

Case: 10-20877 Document: 00511746787 Page: 1 Date Filed: 02/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2012
No. 10-20877
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PATRICK SCOTT BIGELOW,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-500-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Patrick Scott Bigelow appeals the sentence imposed following his guilty
plea conviction for bank robbery, car jacking, and brandishing a firearm during
a crime of violence. Bigelow argues that the district court’s order of restitution
to one of the victims was not supported by sufficient evidence. Because Bigelow
challenges the district court’s reliance on the presentence report (PSR) to
determine the amount of restitution and did not object on this ground in the
district court, we review only for plain error. See United States v. Maturin, 488
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-20877 Document: 00511746787 Page: 2 Date Filed: 02/03/2012
No. 10-20877
F.3d 657, 659-60 (5th Cir. 2007). To show plain error, Bigelow must show a clear
or obvious error that affected his substantial rights. Id. at 660 (citation omitted).
If he makes such a showing, “this court may, in its discretion, grant the
defendant relief if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotations and citations
omitted).
Bigelow presented no argument or evidence in the district court to suggest
that the information in the PSR generally or the victim’s statement of loss, from
which the PSR derived the restitution amount, were materially untrue or
unreliable. See United States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008). Nor
does he now explain how the information in the PSR is untrue or inaccurate. See
id. In light of these absences, Bigelow has failed to show that the district court
erred in adopting the facts contained in the PSR and using them to determine
restitution. See id. In any event, whether the victim required and received the
therapy for which he requested restitution is a factual issue that was capable of
resolution in the district court, and thus cannot constitute plain (clear or
obvious) error. See, e.g., United States v. Chung, 261 F.3d 536, 539 (5th Cir.
2001).
The judgment of the district court is AFFIRMED.
2