USA v. Alexander Jimenez, III

Filing

UNPUBLISHED OPINION FILED. [16-10124 Affirmed in Part, Vacated in Part and Remanded] Judge: CDK, Judge: ECP, Judge: LHS. Mandate pull date is 07/26/2017 for Appellant Alexander Jimenez III [16-10124]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10124

United States Court of Appeals
Fifth Circuit

FILED
July 5, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
ALEXANDER JIMENEZ, III, also known as Trey Jimenez,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CR-63-1
Before KING, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Following his guilty plea for receipt of child pornography, Defendant–
Appellant Alexander Jimenez III was sentenced to 240 months’ imprisonment
and ordered to pay restitution to certain victims. Jimenez argues that his
sentence must be vacated because the district court erred in denying his motion
for downward departure and violated Federal Rule of Criminal Procedure 32.
Jimenez also challenges the restitution order on the ground that the district
court did not conduct a proper analysis under Paroline v. United States, 134 S.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Ct. 1710 (2014).

Finding that the district court erred in determining

restitution, we VACATE the restitution order and REMAND the case for
further proceedings consistent with this opinion. We otherwise AFFIRM the
sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2014, law enforcement seized a laptop while executing a
search warrant at the residence of Defendant–Appellant Alexander Jimenez
III. An analysis of the laptop revealed that it contained many images and video
files of child pornography. During an interview, Jimenez stated that he used
the laptop to receive, trade, and view child pornography, and he also admitted
to using an online file-sharing network to exchange child pornography images
with other individuals.
Jimenez was charged in a two-count indictment for (1) receipt of a visual
depiction of a minor engaging in sexually explicit conduct and aiding and
abetting, in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2 (Count One);
and (2) possession of child pornography and aiding and abetting, in violation
of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and 18 U.S.C. § 2 (Count Two).
Pursuant to a plea agreement, Jimenez pleaded guilty to Count One.
Applying the Sentencing Guidelines (Guidelines), the Presentence
Report (PSR) assessed Jimenez a total offense level of 44, which included a
base offense level of 22 and various adjustments. The PSR noted that the
maximum offense level was 43, and thus, Jimenez’s total offense level became
43 (which corresponded to a Guidelines imprisonment range of life). However,
the statutorily authorized maximum sentence was 240 months’ imprisonment
for a conviction under § 2252(a)(2).

Accordingly, the PSR stated that the

Guidelines term of imprisonment became 240 months.
Jimenez filed 15 objections challenging the following aspects of the PSR:
(1) the mentioning of Count Two of the indictment; (2) the statement that the
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Government filed an unopposed motion for his release; (3) the inclusion of
information posted in online chat logs; (4) the truthfulness of the witness
statements; (5) the inclusion of the witness statements; (6) the inclusion of any
allegation that the pending state charge is valid; (7) the inclusion of the victim
impact statements; (8) the five-level enhancement because his offense involved
distribution for the receipt, or expectation of receipt, of a thing of value; (9) the
four-level enhancement because the images portrayed sadistic or masochistic
conduct; (10) the four-level enhancement because he engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor; (11) the five-level
enhancement because he possessed over 600 images of child pornography on
his laptop; (12) the statement that he chose not to be interviewed without his
counsel present; (13) the calculation of his monthly discretionary income as
$486 rather than $126; (14) the inclusion of the pending state charge; and
(15) the statement that there were no factors warranting a departure from the
Guidelines sentencing range.

Jimenez also filed a “motion for downward

departure or, in the alternative, request for sentencing variance” on the
grounds that he (1) is the sole caregiver to his parents and (2) has followed all
of the rules and regulations of the probation office and has been going to school
and attending therapy sessions.
In response to Jimenez’s objections, the probation officer filed an
Addendum to the PSR (First Addendum). The First Addendum modified only
two aspects of the PSR in response to Jimenez’s objections, noting that Jimenez
was released from pretrial detention based on his own motion, not the
Government’s motion (Jimenez’s second objection), and that Jimenez’s
monthly discretionary income was $126, not $486 (Jimenez’s thirteenth
objection). Other than those two modifications, the First Addendum rejected
Jimenez’s objections.
On January 20, 2016, approximately three months after the First
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Addendum was filed and just two days before the sentencing hearing, the
probation officer filed a Second Addendum to the PSR (Second Addendum).
The Second Addendum stated that on January 19, 2016, the probation office
had received victim restitution information. Specifically, an attorney had sent
a letter that requested $125,000 for five victims ($25,000 per victim) who were
involved in the “8 Kids Series,” which was a series of child pornography images
that Jimenez had possessed. Accordingly, the Second Addendum stated that a
total restitution amount of $125,000 “shall be ordered.” Notably, the victims’
counsel’s letter referenced the Supreme Court’s decision in Paroline and
included assessments about the harm to each of the five victims. Additionally,
the letter was accompanied by attachments consisting of more than 50 pages,
including victim impact statements and psychological evaluations for the
victims. The Second Addendum, however, did not include any of the analysis
from the letter besides the conclusion that each victim was requesting $25,000,
and the letter was never entered into the record in the district court. 1
At the sentencing hearing, after hearing testimony from several witness
on behalf of the defense, Jimenez’s allocution, and arguments, the district court
sentenced Jimenez to 240 months’ imprisonment (the statutorily authorized
maximum) and 30 years of supervised release. The district court also imposed
a restitution award of $25,000 for each of the five victims (for a total award of
$125,000). Jimenez timely appealed.
II. MOTION FOR DOWNWARD DEPARTURE
We first turn to Jimenez’s argument that the district court erred in
denying his motion for downward departure or, alternatively, a sentencing

In October 2016, while this appeal was pending, the Government filed an opposed
motion to supplement the record on appeal with the letter sent by the victims’ counsel. This
court granted the motion. This court also denied a motion for reconsideration filed by
Jimenez.
1

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variance. Typically, our review of a sentence is bifurcated. United States v.
Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). First, we look at
whether the district court committed a significant procedural error, such as
one of the following:
(1) failing to calculate (or improperly calculating) the applicable
Guidelines range; (2) treating the Guidelines as mandatory;
(3) failing to consider the 18 U.S.C. § 3553(a) factors;
(4) determining a sentence based on clearly erroneous facts; or
(5) failing to adequately explain the chosen sentence, including an
explanation for any deviation from the Guidelines range.
Id. (quoting United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008)). In
looking for procedural error, “we review the district court’s interpretation or
application of the sentencing guidelines de novo, and its factual findings for
clear error.” Id. Second, “if the district court’s decision is procedurally sound,
we consider the substantive reasonableness of the sentence, considering the
factors in 18 U.S.C. § 3553(a).”

Id.

For this second step, “[w]e apply a

presumption of reasonableness to [G]uideline[s] sentences and review for
abuse of discretion sentences that include an upward or downward departure
as provided for in the [G]uidelines.” Id. As both parties recognize, however, a
specific standard of review applies when a defendant appeals a district court’s
denial of a motion for downward departure: we lack jurisdiction to review the
denial unless “the district court held a mistaken belief that the Guidelines do
not give it the authority to depart.” United States v. Sam, 467 F.3d 857, 861
(5th Cir. 2006); see also, e.g., United States v. Ayala-Tello, 394 F. App’x 54, 56
(5th Cir. 2010) (per curiam) (“This court generally lacks the jurisdiction to
review a district court’s refusal to depart downwardly from the guidelines
sentencing range.”).
At the outset, it is instructive to first look at the Guidelines framework
following the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), in order to properly understand Jimenez’s argument and,
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ultimately, its flaw. In Booker, the Supreme Court held, in relevant part, that
the mandatory aspect of the Guidelines was unconstitutional and excised 18
U.S.C. § 3553(b)(1), which was “the provision that requires sentencing courts
to impose a sentence within the applicable Guidelines range (in the absence of
circumstances that justify a departure).” Id. at 259. Notably, Booker only
explicitly addressed § 3553(b)(1), but the mandatory aspect of the Guidelines
for certain “child crimes and sexual offenses” is addressed separately in
§ 3553(b)(2). 2 This distinction is important here because Jimenez pleaded

Section 3553(b)(2) provides in full:
In sentencing a defendant convicted of an offense under section 1201 involving
a minor victim, an offense under section 1591, or an offense under chapter 71,
109A, 110, or 117, the court shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a
kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should
result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind
or to a degree, that—
(I) has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing
guidelines or policy statements issued under section 994(a) of
title 28, taking account of any amendments to such sentencing
guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sentencing
Commission in formulating the guidelines; and
(III) should result in a sentence different from that described; or
(iii) the court finds, on motion of the Government, that the defendant
has provided substantial assistance in the investigation or prosecution
of another person who has committed an offense and that this
assistance established a mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence lower than that described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission, together
with any amendments thereto by act of Congress. In the absence of an
applicable sentencing guideline, the court shall impose an appropriate
sentence, having due regard for the purposes set forth in subsection (a)(2). In
the absence of an applicable sentencing guideline in the case of an offense other

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guilty to a child pornography offense that falls within the scope of § 3553(b)(2).
Although we have not yet had occasion to explicitly hold that § 3553(b)(2) is
also excised in light of Booker, 3 other circuit courts have consistently reached
this result. See, e.g., United States v. Hecht, 470 F.3d 177, 180–81 (4th Cir.
2006) (noting that the Government conceded in that case that § 3553(b)(2) is
unconstitutional based on the rationale from Booker and “that every circuit
court to address this issue has held that [§] 3553(b)(2) suffers from the same
defects identified in Booker and requires the same remedy—excising and
severing [§] 3553(b)(2) and replacing it with an advisory guidelines regime
under which sentences are reviewed for reasonableness”).
Jimenez seizes on the excising of § 3553(b)(2) and claims that it supports
his argument that his sentence must be vacated. According to Jimenez, the
district court erroneously believed that it did not have authority to downwardly
depart from the Guidelines sentence because it thought that § 3553(b)(2) still
controlled.

Jimenez points to the First Addendum, which responded to

Jimenez’s grounds for downward departure by noting that the Guidelines only
allowed downward departure for child pornography offenses in limited
circumstances, none of which applied to Jimenez’s purported grounds for a
departure. Jimenez contends that the First Addendum relied on § 3553(b)(2)
in limiting the circumstances for downward departure, and citing the other
circuit courts to have addressed § 3553(b)(2) in light of Booker, he contends
that his sentence should be vacated because § 3553(b)(2) is unconstitutional

than a petty offense, the court shall also have due regard for the relationship
of the sentence imposed to sentences prescribed by guidelines applicable to
similar offenses and offenders, and to the applicable policy statements of the
Sentencing Commission, together with any amendments to such guidelines or
policy statements by act of Congress.
3 In United States v. Jones, 444 F.3d 430, 441 n.54 (5th Cir. 2006), we noted that, “in
keeping with the substantive holding of Booker, we assume that the mandatory aspects of
§ 3553(b)(2) are now advisory only.”

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and must be excised.
There is a fundamental flaw in Jimenez’s argument even assuming that
§ 3553(b)(2) should be excised. Jimenez conflates the two distinct sentencing
concepts of a “departure” and a “variance.” A Guidelines sentencing range is
advisory in light of Booker, and there are now three types of sentences postBooker: “(1) a sentence within a properly calculated Guidelines range; (2) a
sentence that includes an upward or downward departure as allowed by the
Guidelines; and (3) a non-Guideline[s] sentence or a variance that is outside of
the relevant Guidelines range.” Gomez v. U.S. Parole Comm’n, 829 F.3d 398,
402 (5th Cir. 2016) (alteration in original) (quoting United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008)). As we have explained before, “[d]eparture
is a term of art . . . and refers only to . . . sentences imposed under the
framework set out in the Guidelines.” Id. (alteration and omissions in original)
(quoting United States v. Teel, 691 F.3d 578, 591 (5th Cir. 2012)). For example,
a downward departure for Jimenez’s child pornography offense is limited to
the grounds that are listed in Part 5K of the Guidelines.

See U.S.S.G.

§ 5K2.0(b); see also United States v. Reilly, 662 F.3d 754, 758 (6th Cir. 2011)
(“Congress has specifically instructed that child crimes and sexual offenses are
to be treated differently than other types of crimes—the ‘sole grounds’
permissible for a downward departure are those ‘expressly enumerated in
Par[t] 5K.” (quoting U.S.S.G. § 5K2.0(b))). However, the fact that the grounds
for departure are limited does not mean that a district court cannot impose a
sentence that is outside of the Guidelines range by applying a variance. A
departure is distinct from a variance, which “is ‘outside the [G]uidelines
framework . . . and stems from 18 U.S.C. § 3553(a).’” Gomez, 829 F.3d at 402
(alteration and omission in original) (quoting United States v. Jacobs, 635 F.3d
778, 782 (5th Cir. 2011) (per curiam)).
Here, once this distinction is recognized, it is clear that the district court
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did not believe that it lacked proper authority to downwardly depart. Even
assuming that § 3553(b)(2) should be excised in light of Booker, Jimenez has
not advanced any argument that would justify vacating his sentence.
Jimenez’s argument appears to be that Booker eliminated entirely the
Guidelines’ departure framework such that his arguments in the district
court—which the First Addendum stated were not grounds for downward
departure under the Guidelines—can now serve as grounds for downward
departure. In other words, Jimenez’s argument implies that Booker made it
such that any circumstance could potentially be grounds for downward
departure, and by not recognizing that change, the district court erroneously
believed that it did not have authority to downwardly depart. Booker, however,
concerned the mandatory nature of the Guidelines; it did not eliminate entirely
the departure framework. And the district court did not violate Booker by still
considering the departure framework.

Although, in light of Booker, some

courts have found departures from advisory guidelines to be “obsolete,” see
Gutierrez-Hernandez, 581 F.3d at 255 (quoting United States v. Arnaout, 431
F.3d 994, 1003 (7th Cir. 2005)), this court has continued to adhere to the
principle that departures are still relevant and distinct from variances, see id.
at 255–56. Jimenez advances no further argument about how the district court
erred in not believing that his circumstances would fit into one of the limited
categories for downward departure besides the incorrect proposition that any
circumstance can serve as a ground for departure. Accordingly, to the extent
that Jimenez argues that the district court erred in not granting a downward
departure, we lack jurisdiction to review. See Sam, 467 F.3d at 861.
Moreover, the record is clear that the district court was aware that that
the Guidelines sentencing range was not mandatory.

At base, Jimenez’s

challenge appears to be that the district court did not properly consider his
arguments for a lower sentence. Perhaps recognizing the difficulties that his
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challenge would face if he argued that the district court erred in not applying
a variance, Jimenez does not frame his challenge on appeal in terms of the
district court procedurally or substantively erring in not applying a downward
variance; instead, he frames his argument, as discussed above, in terms of a
downward departure. To the extent that Jimenez’s argument on appeal could
be interpreted as arguing that the district court erred in not applying a
downward variance, his argument also fails. Jimenez advances no arguments
about how the district court procedurally or substantively erred in determining
his sentence.

Indeed, the record is clear that the district court applied

§ 3553(a) in determining the appropriate sentence for Jimenez. For example,
the district court explicitly referenced § 3553(a) in its statement of reasons in
explaining why it imposed a sentence of 240 months’ imprisonment. Jimenez
has failed to show any error on the part of the district court with respect to
determining his sentence.
III. FEDERAL RULE OF CRIMINAL PROCEDURE 32
We next address Jimenez’s argument that the district court failed to
comply with Federal Rule of Criminal Procedure 32(i)(3)(B) because it did not
resolve all of his objections. Given that Jimenez did not raise this objection in
the district court, our review is for plain error. See United States v. EsparzaGonzalez, 268 F.3d 272, 274 (5th Cir. 2001). Under plain error review, Jimenez
must show a clear or obvious error that affected his substantial rights. See
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). To affect substantial
rights in the sentencing context, Jimenez must “show a reasonable probability
that, but for the district court’s error, [he] would have received a lower
sentence.” Id. If Jimenez makes such a showing, we have “the discretion to
remedy the error—discretion which ought to be exercised only if the error
seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original) (internal quotation marks omitted)
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(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Under Rule 32(i)(3)(B), the district court “must—for any disputed portion
of the presentence report or other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.”
Importantly, the district court is required to rule only on unresolved objections,
and if a defendant abandons an objection during the sentencing hearing, the
district court does not violate Rule 32 by failing to resolve the abandoned
objection. See United States v. Myers, 198 F.3d 160, 167 (5th Cir. 1999).
Here, Jimenez has not satisfied his burden of demonstrating that the
district court committed a clear or obvious error because the district court did,
in fact, resolve the remaining unresolved objections during the sentencing
hearing. At the beginning of the sentencing hearing, the district court asked
Jimenez’s counsel whether there were any unresolved objections, to which
counsel responded that there was only one objection that had not yet been
resolved—namely, Jimenez’s counsel wanted to further develop the
background of the abuse that Jimenez had suffered as a child. 4 However,

As noted above, Jimenez filed 15 objections to the PSR, and in response, the
probation officer issued the First Addendum that addressed and rejected all but two of
Jimenez’s objections (and for the two other objections, the probation officer made
modifications). By informing the district court that the only unresolved objection related to
the past abuse that Jimenez had suffered, Jimenez’s counsel abandoned the other objections.
On appeal, Jimenez challenges the characterization that he abandoned the other objections,
claiming that the exchange between his counsel and the district court was a “total
communication breakdown.” However, a review of the transcript reveals that Jimenez’s
counsel clearly responded “no” to the district court’s question of whether there were
unresolved objections. The district court then asked whether Jimenez’s counsel had
objections that were resolved, and Jimenez’s counsel responded—“I had objections”—before
moving onto how there was one area that he did not think was fully developed (the abuse
that Jimenez had suffered as a child). The only reasonable way to read Jimenez’s counsel’s
statements is to conclude that Jimenez no longer maintained his other objections to the PSR.
It is true that Jimenez’s counsel later stated that he had no other objections that had not
been “addressed,” which suggests that Jimenez’s counsel may have conflated whether the
objections had been “resolved” or simply “addressed” by the First Addendum. But the district
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Jimenez’s counsel noted that he was only requesting that Jimenez have the
opportunity to explain the abuse in more detail during allocution (which
Jimenez did later in the sentencing hearing) and that he was not requesting a
change to the PSR. Accordingly, this issue was not an unresolved objection
that would require further resolution by the district court under Rule 32. The
only other objection raised during the sentencing hearing was by Jimenez
himself: he objected to his ex-girlfriend’s allegations about his interactions
with two young boys. But Jimenez, in response to a question by the district
court, said that he would be satisfied with the district court revising the PSR
to reflect that he denied the allegations. Moreover, the district court made
specific findings at the hearing that Jimenez was likely just budding as a
contact child predator, he had admitted to grooming children, and families of
young boys had recognized some of his grooming techniques. Thus, the district
court did not clearly or obviously err by failing to rule on an unresolved
objection.
IV. RESTITUTION
Jimenez’s final argument is that the district court erred in imposing a
restitution award of $25,000 per victim without conducting the analysis
described in the Supreme Court’s decision in Paroline. As an initial matter,
the parties dispute the standard of review. For a properly preserved error, we
review the legality of a restitution award de novo. See United States v. Sheets,
814 F.3d 256, 259–60 (5th Cir. 2016). “Once we have determined that an award
of restitution is permitted by the appropriate law, we review the propriety of a
particular award for an abuse of discretion.” Id. at 259. But if a defendant has

court did not err by failing to pick up on this single word choice and seeking further
clarification from Jimenez’s counsel, especially in light of the clear statements made by
Jimenez’s counsel earlier in the hearing and the many opportunities that he had to correct
his abandonment of those objections (if he had indeed wanted to maintain those objections).

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failed to sufficiently object in the district court, our review is under the plain
error standard. Id. Here, Jimenez argues that our review should be de novo
because his counsel adequately objected to the restitution award during the
sentencing hearing. According to Jimenez, his counsel was “caught . . . off
guard” when the restitution letter was sent just two days before the sentencing
hearing, and during the sentencing hearing, his counsel objected and
demanded to know more information about the victims.

Conversely, the

Government contends that this objection was insufficient because it did not
mention Paroline, and instead, it was only about Jimenez’s counsel’s inability
to cross-examine the victims and the late submission of the letter. We need
not resolve this dispute because, even assuming that the more stringent plain
error review standard applies, we still conclude that the restitution award
should be vacated.
Under 18 U.S.C. § 2259(a), a district court “shall order restitution” for a
specified group of offenses, one of which is a conviction under § 2252 (the
statute under which Jimenez was convicted). 5 See Paroline, 134 S. Ct. at 1718.
In Paroline, the Supreme Court answered the question of how a district court
should determine the amount of restitution a defendant owes to a victim under
§ 2259. The Supreme Court held that a restitution award under § 2259 is
proper “only to the extent the defendant’s offense proximately caused a victim’s
losses.” Id. at 1722. In the context of child pornography offenses, however,
determining the extent that the defendant proximately caused the victim’s
losses can be a complex issue, in part, because there are potentially many other
offenders who have possessed or will possess the child pornography that is the
“Section 2259(b)(2) provides that ‘[a]n order of restitution under this section shall be
issued and enforced in accordance with section 3664,’ which in turn provides in relevant part
that ‘[t]he burden of demonstrating the amount of the loss sustained by a victim as a result
of the offense shall be on the attorney for the Government,’ § 3664(e).” Paroline, 134 S. Ct.
at 1719 (alterations in original).
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basis for the offense. As the Supreme Court explained:
It is perhaps simple enough for the victim to prove the aggregate
losses, including the costs of psychiatric treatment and lost
income, that stem from the ongoing traffic in her images as a
whole.
(Complications may arise in disaggregating losses
sustained as a result of the initial physical abuse, but those
questions may be set aside for present purposes.) These losses may
be called, for convenience’s sake, a victim’s “general losses.” The
difficulty is in determining the “full amount” of those general
losses, if any, that are the proximate result of the offense conduct
of a particular defendant who is one of thousands who have
possessed and will in the future possess the victim’s images but
who has no other connection to the victim.
Id. Ultimately, the Supreme Court held that, in this context, “a court applying
§ 2259 should order restitution in an amount that comports with the
defendant’s relative role in the causal process that underlies the victim’s
general losses.” Id. at 1727. The Supreme Court noted that “[t]here are a
variety of factors district courts might consider in determining a proper
amount of restitution, and it is neither necessary nor appropriate to prescribe
a precise algorithm for determining the proper restitution amount at this point
in the law’s development.” Id. at 1728. But the Supreme Court pointed to a
number of relevant factors that a district court could consider:
[(1)] the number of past criminal defendants found to have
contributed to the victim’s general losses; [(2)] reasonable
predictions of the number of future offenders likely to be caught
and convicted for crimes contributing to the victim’s general losses;
[(3)] any available and reasonably reliable estimate of the broader
number of offenders involved (most of whom will, of course, never
be caught or convicted); [(4)] whether the defendant reproduced or
distributed images of the victim; [(5)] whether the defendant had
any connection to the initial production of the images; [(6)] how
many images of the victim the defendant possessed; and [(7)] other
facts relevant to the defendant’s relative causal role.
Id. The Supreme Court emphasized that “[t]hese factors need not be converted
into a rigid formula, especially if doing so would result in trivial restitution
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orders.” Id. Instead, these factors “should . . . serve as rough guideposts for
determining an amount that fits the offense.” Id.
Although the Supreme Court was clear that its Paroline decision did not
prescribe a rigid formula, it was equally clear that at least some analysis must
be done to determine the extent that the defendant’s offense proximately
caused the victims’ losses, and the district court here awarded $25,000 per
victim without conducting any kind of analysis of the appropriateness of the
requested amount. During sentencing, the district court did not reference any
calculations supporting how the $25,000 per victim was determined, let alone
any of the factors mentioned in Paroline. Indeed, the district court appears not
to have weighed at all the appropriateness of the $25,000 per victim award;
rather, it seems to have viewed the victims’ requested restitution amount as
being mandatory. For example, the district court stated that “[r]estitution is
mandatory when victims have been identified.

Therefore, the restitution

amount of $125,000 is imposed.” Notwithstanding the lack of analysis from
the district court, the Government argues that sufficient information to
support a Paroline analysis was included in the victims’ counsel’s letter
detailing why each of the five victims was requesting $25,000. In effect, the
Government’s argument relies on the following logic: the victims’ counsel’s
letter included sufficient information to satisfy the Paroline analysis; the
Second Addendum recommended awarding $125,000 based on the information
and analysis from that letter; the district court adopted the Second Addendum;
and thus, the district court conducted a sufficient Paroline analysis. But there
is no evidence in the record that the victims’ counsel’s letter was ever before
the district court. Based on the record, it appears that the district court only
had the benefit of viewing the Second Addendum, which stated that $125,000
should be awarded to the victims based on a letter recently received from their
counsel. The Second Addendum, however, did not itself discuss any of the
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details from that letter (i.e., the purported Paroline analysis in the letter was
not put forth or mentioned in the Second Addendum). Simply put, it requires
a leap in logic too far to say that the district court conducted a sufficient
Paroline analysis based on something that it had never even seen. Thus, the
district court clearly erred by entirely failing to weigh the extent that
Jimenez’s offense proximately caused the losses of the five victims. 6
We also conclude that the third and fourth prongs of plain error review
are met. The error affected Jimenez’s substantial rights because he has shown
that there is a reasonable probability that, but for the error, the restitution
award would have been less. See United States v. Maturin, 488 F.3d 657, 663–
64 (5th Cir. 2007) (holding that an error resulting in the overstatement of a
restitution award affected substantial rights because it affected the outcome of
the district court proceedings). The district court awarded each victim the
same amount of restitution, but this is a sufficiently unlikely outcome under a
Paroline analysis here given that the victims’ counsel’s letter explicitly stated
that each victim’s total estimated damages were different (with some varying
by more than $200,000). Put another way, if the victims have vastly different
amounts of losses, then it is unlikely that Jimenez proximately caused the
same amount of loss to each victim. Additionally, we note that $25,000 appears
to be near the high end of restitution awards applying a Paroline analysis
(although, of course, this is subject to the caveat that the outcome depends on
the specific facts of each case). 7 See, e.g., United States v. Beckmann, 786 F.3d

The Government has not argued that we should affirm the restitution award by
conducting our own, independent Paroline analysis of the victims’ counsel’s letter now that
it has been added to the record on appeal. In any event, we would still remand for the district
court to consider a proper Paroline analysis in the first instance.
7 For the sake of clarity, we emphasize that this opinion should not be interpreted as
opining that a $25,000 per victim award (or more) could not be justified after a proper
Paroline analysis, nor are we suggesting that matching awards for victims would never be
6

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672, 683 (8th Cir. 2015) (collecting cases and noting that an award of $3,000
per victim appeared to be “an amount consistent with awards in similar
possession cases since Paroline”). Moreover, we exercise our discretion to
correct this error by remanding the case to the district court for the proper
analysis because the error potentially resulted in a restitution award that was
greater than the loss proximately caused by Jimenez. See United States v.
Austin, 479 F.3d 363, 373 (5th Cir. 2007) (“When a defendant is ordered to pay
restitution in an amount greater than the loss caused, the error affects
substantial rights as well as the fairness and integrity of the judicial
proceeding.”); see also, e.g., Maturin, 488 F.3d at 663–64 (concluding that an
error resulting in an overstated restitution award affected the fairness,
integrity, or public reputation of judicial proceedings).
Given that the district court erred in imposing restitution based on this
record, we must address whether, on remand, the Government is permitted to
present additional evidence. Typically, the Government “may not present new
evidence on remand when reversal is required due to the failure to present
evidence originally.” See United States v. Chem. & Metal Indus., Inc., 677 F.3d
750, 753 (5th Cir. 2012) (citing United States v. Archer, 671 F.3d 149, 168–69
(2d Cir. 2011)). Here, however, we find sufficient special circumstances to
justify departure from this general rule, including the fact that the harm from
the Government’s failure to present sufficient evidence to the district court is
to the victims (who, it should be emphasized, sent the Government a purported
Paroline analysis) and that this court has not yet provided specific guidance on
how the Government should comply with Paroline. See United States v. Jones,
616 F. App’x 726, 729 (5th Cir. 2015) (per curiam) (finding sufficient special

appropriate (especially considering the discretion and estimation required as part of the
Paroline analysis).

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circumstances to justify allowing the Government to present new evidence on
remand). For example, the district court did not consider at all whether the
victims’ counsel’s letter attempted to disaggregate the harm of the initial abuse
from the harm of the ongoing possession and distribution of the images. Cf.
Paroline, 134 S. Ct. at 1722 (“Complications may arise in disaggregating losses
sustained as a result of the initial physical abuse, but those questions may be
set aside for present purposes.”). Several circuit courts have expounded on this
issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289–91
(9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the
conclusion that [the defendant] should not be required to pay for losses caused
by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181–
82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that
restitution should reflect the consequences of the defendant’s own conduct’ to
hold [the defendant] accountable for those harms initially caused by [the
victim’s] abuser.” (quoting Paroline, 134 S. Ct. at 1175)); see also United States
v. Miner, 617 F. App’x 102, 103 (2d Cir. 2015) (holding that the district court
adequately disaggregated the victim’s losses).

We have not yet directly

addressed this issue and leave it in the first instance to the district court and
further development of the record. In sum, on remand, the Government is
permitted to present additional evidence related to the restitution award for
these five victims. See Jones, 616 F. App’x at 729.
V. CONCLUSION
For the foregoing reasons, we VACATE the restitution order and
REMAND the case to the district court for further proceedings consistent with
this opinion. The sentence is otherwise AFFIRMED.

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