United States v. Avila ( 2023 )

Case: 22-10187 Document: 00516672399 Page: 1 Date Filed: 03/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 10, 2023
No. 22-10187 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rudy Avila,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-cr-168-1
Before Clement, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
After years of running a scheme that defrauded dozens of victims,
Rudy Avila eventually pleaded guilty to a single count of wire fraud. He was
later sentenced to 210 months in prison (followed by three years supervised
release) and was ordered to pay $14,955,313 in restitution.
On appeal, Avila argued that the record lacked sufficient evidence to
sustain his guilty plea. But after the government supplemented the record
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10187 Document: 00516672399 Page: 2 Date Filed: 03/10/2023
No. 22-10187
pointing to the evidence Avila claimed missing, Avila now concedes that his
plea was in fact properly accepted and the issues he raised in his initial brief
are resolved.
In his reply brief, however, he now argues that the district court’s
restitution order violated the Mandatory Victim Restitution Act because it
included restitution to an as-of-yet unidentified victim. But Avila failed to
challenge the restitution order either before the district court or in his initial
brief. Generally, any argument not raised in an opening brief is forfeited. See
United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017). While we retain
the “discretion to decide legal issues that are not timely raised,” United
States v. Myers, 772 F.3d 213, 218 (5th Cir. 2014), we decline to exercise such
discretion now.
The district court is therefore AFFIRMED. 1
1
The parties disagree about whether Avila’s appeal waiver, bars his challenge to
his restitution order. Because either way, we decline to address his forfeited issue, we do
not address that question either.
2