United States v. Juan Cortinas ( 2018 )

Case: 17-40530 Document: 00514398449 Page: 1 Date Filed: 03/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40530 FILED
Summary Calendar March 22, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN CAMILO CORTINAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-11-3
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Juan Camilo Cortinas appeals the district court’s order that he pay
$157,525.57 in restitution in connection with his guilty plea convictions for
conspiring to knowingly or recklessly transport within the United States an
alien who has come to, entered, or remained in the United States in violation
of law, see 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I), and for knowingly or recklessly
transporting within the United States, for private financial gain, an alien who
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40530
has come to, entered, or remained in the United States in violation of law, see
id. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), and (a)(1)(B)(i). We agree with both par-
ties that the restitution order lacked a statutory basis and therefore cannot
stand. See United States v. Westbrooks, 858 F.3d 317, 327 (5th Cir. 2017), peti-
tion for cert. filed (July 10, 2017) (No. 17-5112).
“A federal court cannot order restitution ‘except when authorized by stat-
ute.’” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005) (quoting United
States v. Bok, 156 F.3d 157, 166 (2d Cir. 1998)). “There are two sources of stat-
utory authority” for restitution. Id. The first source is 18 U.S.C. § 3556. But
that section pertains only to restitution under 18 U.S.C. §§ 3663 and 3663A,
neither of which justify the restitution order here. The second source is 18
U.S.C. § 3583, which deals with restitution in connection with a term of super-
vised release. See Westbrooks, 858 F.3d at 327–28; Love, 431 F.3d at 479–80.
But as both parties again agree, the sentencing transcript and judgment in this
make clear that the district court imposed the restitution order as part of
Cortinas’s sentence, not as part of his supervised release. The restitution order
therefore exceeded the district court’s statutory authority and “should be cor-
rected on plain error review.” Westbrooks, 858 F.3d at 327.
We sometimes vacate the entire sentence when an order of restitution is
vacated and sometimes vacate only the restitution order, leaving “in place a
term of imprisonment that was also included in the sentence.” United States v.
Espinoza, 677 F.3d 730, 734–35 (5th Cir. 2012). In this case, however, Cortinas
urges no “other error in the sentencing process,” id. at 735, and he asks that
we vacate and remand only the restitution component of the sentence. We
therefore VACATE only the restitution component of the sentence and RE-
MAND for further proceedings in order that the district court may consider the
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No. 17-40530
limited question whether to impose restitution as a condition of supervised re-
lease. See id.; see also Westbrooks, 858 F.3d at 328; United States v. Dahlstrom,
180 F.3d 677, 686 (5th Cir. 1999).
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