from the United States District Court for the Northern
District of Texas
KING, JONES, and GRAVES, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE.
entering into a plea agreement with the Government,
Defendant-Appellant Christian Winchel pleaded guilty to one
count of producing child pornography in violation of 18
U.S.C. § 2251(a), one count of transporting child
pornography in violation of 18 U.S.C. § 2252A(a)(1), and
one count of possessing child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). The district court sentenced
Winchel to 600 months in prison and ordered him to pay $1,
443, 619.63 in restitution pursuant to 18 U.S.C. § 2259.
On appeal, Winchel argues that the restitution order
contravenes Paroline v. United States, 134 S.Ct.
1710 (2014), because the district court failed to determine
whether his conduct proximately caused the victims'
Government moves to dismiss Winchel's appeal based on a
waiver provision in the plea agreement. The provision states
that "Winchel waives his rights, conferred by 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, to appeal from his
convictions and sentences" but "reserves the
right . . . to bring a direct appeal of a sentence
exceeding the statutory maximum punishment."
court reviews de novo whether an appeal waiver bars an
appeal." United States v. Keele, 755 F.3d 752,
754 (5th Cir. 2014). It is undisputed that Winchel knowingly
and voluntarily agreed to the appeal waiver. The sole
question is "whether the waiver applies to the
circumstances at hand, based on the plain language of the
[plea] agreement." United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005). "In determining whether a
waiver applies, this court employs ordinary principles of
contract interpretation, construing waivers narrowly and
against the Government." Keele, 755 F.3d at 754
(citing United States v. Palmer, 456 F.3d 484, 488
(5th Cir. 2006)). "We construe any ambiguity in the plea
agreement against the Government." United States v.
Burns, 433 F.3d 442, 445 n.2 (5th Cir. 2005) (quoting
United States v. De Los Santos, 152 Fed.Appx. 375,
377 (5th Cir. 2005)); accord United States v.
Martinez, 263 F.3d 436, 438 (5th Cir. 2001).
Paroline-based appeal of the district court's
restitution order falls within the meaning of "a direct
appeal of a sentence exceeding the statutory maximum
punishment." Section 2259 authorizes a court to order
restitution, but only to the extent it is shown that the
defendant in question proximately caused the victim's
losses. Paroline, 134 S.Ct. at 1720-22. Thus, if a
court orders a defendant to pay restitution under § 2259
without determining that the defendant's conduct
proximately caused the victim's claimed losses, the
amount of restitution necessarily exceeds the statutory
maximum. See United States v. Chem. & Metal Indus.,
Inc., 677 F.3d 750, 752 (5th Cir. 2012); United
States v. Gordon, 480 F.3d 1205, 1209-10 (10th Cir.
2007); see also United States v. Broughton-Jones, 71
F.3d 1143, 1147 (4th Cir. 1995) ("Because a restitution
order imposed when it is not authorized . . . is no less
'illegal' than a sentence of imprisonment that
exceeds the statutory maximum, appeals challenging the
legality of restitution orders are similarly outside the
scope of a defendant's otherwise valid appeal
Winchel did not waive his right to bring this appeal, the
Government's motion to dismiss is DENIED.
parties agree that since Winchel did not object to the
restitution order in the district court, plain error review
governs the merits of his appeal.
The Supreme Court has identified four requirements for
reversing a trial court based upon plain error review: (1)
"there must be an error or defect-some sort of
[d]eviation from a legal rule-that has not been intentionally
relinquished or abandoned"; (2) "the legal error
must be clear or obvious, rather than subject to reasonable
dispute"; (3) "the error must have affected the
appellant's substantial rights"; and (4) "if
the above three prongs are satisfied, the court of appeals
has 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
United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). The Government
concedes that the first three prongs are satisfied in this
case but argues that we should decline to correct the
district court's plain error under the fourth prong.
is well established that courts 'should' correct a
forfeited plain error that affects substantial rights 'if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.'"
Rosales-Mireles v. United States, 138 S.Ct. 1897,
1906 (2018) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)). That standard is easily satisfied in
the present case. When a court orders a defendant to pay
nearly $1.5 million in restitution without determining
whether that amount complies with a basic statutory
requirement-in this case, § 2259's proximate
causation requirement-the fairness, integrity, and public
reputation of judicial proceedings are seriously undermined.
See Rosales-Mireles, 138 S.Ct. at 1908, 1910
(observing that "the public legitimacy of our justice
system relies on procedures that are neutral, accurate,
consistent, trustworthy, and fair, and that provide
opportunities for error correction" and that "a
sentence that lacks reliability because of unjust procedures
may well undermine public perception of the proceedings"