IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20570

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

FRANCIS YUVINI GUERRA PLEITEZ, also known as Colochin, also known 

as Flaco, 

 Defendant–Appellant.

Appeals from the United States District Court

for the Southern District of Texas

Before DAVIS, CLEMENT, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This Court is asked to determine whether the entry of a final restitution 

order or an amended judgment that imposes a more onerous restitution award 

under 18 U.S.C. § 3664(d)(5) constitutes a “critical stage” of trial proceedings 

requiring access to counsel. Defendant–Appellant Francis Yuvini Guerra 

Pleitez (“Pleitez”) entered into a plea agreement for a crime mandating 

restitution and waived his right to appeal all claims other than claims of 

ineffective assistance of counsel. At sentencing, the district court issued a 

partial restitution order but deferred its final determination of restitution 

pending further investigation by the probation officer. 

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2017

Lyle W. Cayce

Clerk

 Case: 16-20570 Document: 00514247528 Page: 1 Date Filed: 11/22/2017
No. 16-20570

2

After Pleitez’s trial counsel was dismissed, but before his appellate 

counsel was appointed, the probation officer submitted a Fourth Addendum to 

Pleitez’s presentence report (“PSR”) recommending a more onerous restitution 

award based on a new method of calculation. The district court amended the 

restitution order to reflect the updated findings in the Fourth Addendum. 

Subsequently, the court entered an amended judgment on the same day 

Pleitez’s appellate counsel was appointed. On appeal, Pleitez argues that he 

was unconstitutionally deprived of the effective assistance of counsel during a 

critical stage of trial proceedings. Because we find that the acceptance of an 

addendum to a PSR recommending a more onerous restitution award 

constitutes a critical stage, we VACATE and REMAND.

I. BACKGROUND

On August 7, 2015, Pleitez pleaded guilty to conspiracy to engage in sex 

trafficking of children by force, fraud, or coercion. He agreed as part of his plea 

agreement to waive the right to appeal his conviction and sentence but 

reserved the right to raise claims of ineffective assistance of counsel. He also 

agreed to pay restitution to the victims in an amount to be determined by the 

district court and, subject to the appeal waiver provision, waived the right to 

challenge the restitution order on any ground. 

In order to assist the trial court in determining the restitution amount, 

18 U.S.C. § 3664 requires the probation officer to complete a PSR that contains 

sufficient information for the court to order restitution, including “a complete 

accounting of the losses to each victim, any restitution owed pursuant to a plea 

agreement, and information relating to the economic circumstances of each 

defendant.” 18 U.S.C. § 3664(a); see also Fed. R. Crim. P. 32(c)(1)(B). The 

original PSR, prepared on May 13, 2016, included victim interviews and 

specified types of victim losses that could be ordered as restitution but reported

that no response had been received from the victims. Pleitez filed objections to 

 Case: 16-20570 Document: 00514247528 Page: 2 Date Filed: 11/22/2017
No. 16-20570

3

the PSR on June 8, 2016, arguing that various sentencing enhancements 

should not apply. The First Addendum to the PSR, filed on June 24, 2016,

addressed Pleitez’s objections, and noted that mandatory restitution applied. 

The Second Addendum to the PSR was filed on the day of the sentencing 

hearing, August 17, 2016, and reflects three of the victims’ claims for 

restitution: victim L.T.S. claiming $71,240,1 victim I.H. claiming $18,380, and 

victim M.G.C. claiming $490, for a total of $90,110 in restitution.

At the sentencing hearing, Pleitez did not object to M.G.C.’s claim for 

$490 or to the restitution owed to victims for future counseling expenses.2 He 

did, however, challenge the claims by L.T.S. and I.H. to the extent they were 

based on “lost wages;”3 according to Pleitez, the victims were not entitled to 

restitution for lost wages because they worked illegal jobs and were not legally 

present in the United States. The probation officer maintained that victims 

could receive either the value of prostitution services rendered or the wages 

they would have earned for their services. The court acknowledged defense 

counsel’s position, reviewed his filings, and understood defense counsel’s 

objection to paying $71,240 to L.T.S. and $18,380 to I.H. to the extent these 

figures were based on lost wages. But the court refrained from ruling, stating 

that it would first “take the probation department’s research” into account. The 

court sentenced Pleitez to 210 months’ imprisonment, five years’ supervised 

release, and ordered $490 in restitution for M.G.C.’s claim. Regarding the 

$71,240 for L.T.S. and $18,380 to I.H., the court stated it would withhold its 

decision based on its “statutory or case interpretation” with the assistance of 

 

1 There is some confusion as to whether L.T.S. claimed $71,120 or $71,240. The Second 

Addendum valued her loss at $71,120, but L.T.S. actually reported a loss of $71,240. Because 

the district court based its decision on the latter amount, we use $71,240 throughout.

2 L.T.S. claimed $26,000 in counseling or therapy costs; I.H. claimed $3,300 in 

counseling or therapy costs.

3 L.T.S. claimed $45,240 in lost wages; I.H. claimed $15,080 in lost wages.

 Case: 16-20570 Document: 00514247528 Page: 3 Date Filed: 11/22/2017
No. 16-20570

4

the parties and the probation office. The court said it would consider anything 

in writing defense counsel submitted after the sentencing hearing, but added 

that the defense counsel was not obligated to submit anything further.

On August 24, 2016, the probation officer filed the Third Addendum to 

the PSR after sentencing. The Third Addendum reported that it was 

appropriate to award restitution to illegal aliens, and trafficking victims are 

entitled to “the greater of the gross income or value to the defendant of the 

victim’s services or labor or the value of the victim’s labor as guaranteed under 

the minimum wage and overtime guarantees of the Fair Labor Standards Act.” 

The probation officer estimated that the value of the victims’ services likely 

exceeded $120,000 but, because it was speculative, recommended that the 

court use the lower lost-wage amounts previously requested by the victims. 

Pleitez again filed objections on August 25, 2016, challenging the inclusion of 

lost wages and arguing that the proposed amount was speculative, ambiguous, 

and impermissibly based on victim impact statements. And he filed a notice of 

appeal the following day. On August 30, 2016, the district court permitted 

Pleitez’s trial counsel to withdraw. 

On September 6, 2016, while Pleitez was not represented by counsel, the 

probation officer filed the Fourth Addendum responding to Pleitez’s objections. 

But the Fourth Addendum went further. The lost wages claimed by L.T.S. and 

I.H. at sentencing were based on a computation of minimum wage under the 

Fair Labor Standards Act (“FLSA”), but the Fourth Addendum based its

recommendation of restitution owed for lost wages on a new method of 

calculation: estimating wages the victims actually earned for their services by 

relying on the victims’ statements regarding the number of hours worked, the 

amount charged for each sex act, and the number of customers. As a result, the 

Addendum concluded that an “extremely conservative” calculation estimated 

that L.T.S. generated $50,400 in gross income and I.H. generated $33,600 in 

 Case: 16-20570 Document: 00514247528 Page: 4 Date Filed: 11/22/2017
No. 16-20570

5

gross income. Because these amounts were higher than the FLSA estimates 

proposed at sentencing, the Addendum recommended an increased mandatory 

restitution award of $76,400 for L.T.S. and $36,900 for I.H.4 The same day, the 

district court entered an order for restitution in the amount of $76,400 to L.T.S.

and $36,900 to I.H., reflecting the Fourth Addendum’s recommendation. The 

district court also signed an amended judgment ordering Pleitez to pay 

restitution of $490 to M.G.C., $76,400 to L.T.S., and $36,900 to I.H., for a total 

of $113,790 in restitution. 

After spending nine days without counsel, appellate counsel was 

appointed for Pleitez on September 9, 2016. That same day, the district court 

entered an Amended Final Judgment reflecting a final restitution award of 

$113,790. Pleitez then timely filed a supplemental notice of appeal.

II. DISCUSSION

Pleitez appeals the judgment of conviction and sentence of imprisonment 

entered on September 9, 2016. This Court has jurisdiction over the district 

court’s final judgment pursuant to 28 U.S.C. § 1291. Pleitez’s appeal presents 

two issues: (1) whether Pleitez’s appeal is barred by the appeal waiver in his 

plea agreement; and (2) whether the district court violated Pleitez’s Sixth 

Amendment right to counsel by amending the judgment and issuing a new 

restitution order during the nine-day period where Pleitez was not represented 

by either trial or appellate counsel.

A. The Appeal Waiver

The Government argues that Pleitez’s appeal is barred by the appeal 

waiver provision of his plea agreement. “This court reviews de novo whether 

an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754 

 

4 These amounts combined the lost wages estimate with counseling and therapy costs 

that the Defendant did not dispute. See supra note 2.

 Case: 16-20570 Document: 00514247528 Page: 5 Date Filed: 11/22/2017
No. 16-20570

6

(5th Cir. 2014). In order to determine whether an appeal waiver applies to the 

issues presented, this Court “ascertain[s] the ordinary meaning of the waiver 

provision.” United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). The Fifth 

Circuit “construe[s] appeal waivers narrowly, and against the government.” 

United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). Because we find 

that Pleitez’s appeal falls within the waiver provision’s exception for ineffective 

assistance of counsel claims, we may hear this case.

A criminal defendant may waive his statutory right to appeal in a valid 

plea agreement. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) 

(holding appellate waivers are enforceable if invoked by the United States). 

“An appeal waiver bars an appeal if the waiver (1) was knowing and voluntary 

and (2) applies to the circumstances at hand, based on the plain language of 

the agreement.” United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). “A 

defendant must know that he had a right to appeal his sentence and that he 

was giving up that right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 

1994) (internal quotation marks and citation omitted). 

Both parties agree that the appeal waiver contained in Pleitez’s plea 

agreement was knowing and voluntary. But Pleitez and the Government 

disagree as to the scope of the waiver. The text of the appeal waiver is found 

in paragraph 7 of the plea agreement: Pleitez waived “the right to appeal or 

‘collaterally attack’ the conviction and sentence, except that Defendant does 

not waive the right to raise a claim of ineffective assistance of counsel on direct 

appeal . . . or on collateral review.” Pleitez also agreed in paragraph 21 of the 

plea agreement to “pay full restitution to the victim(s) regardless of the 

count(s) of conviction” as determined by the court. Additionally, subject to the 

provisions of paragraph 7, Pleitez waived “the right to challenge in any 

manner, including by direct appeal or in a collateral proceeding, the restitution 

order imposed by the Court.”

 Case: 16-20570 Document: 00514247528 Page: 6 Date Filed: 11/22/2017
No. 16-20570

7

Pleitez contends that his claim falls within the appeal waiver’s exception 

for claims of ineffective assistance of counsel. He does not contest that he is 

prevented from appealing the restitution order itself. See Keele, 755 F.3d at 

756 (finding that an appeal waiver barred defendant’s right to appeal the 

restitution order where the agreement explicitly referenced restitution). He 

emphasizes that the restitution amount was vigorously contested, and the final 

restitution order and the Fourth Addendum on which it was based were 

entered after trial counsel withdrew but before appellate counsel was 

appointed. Additionally, because the final restitution order increased his 

penalty to be “more onerous,” Pleitez argues he was not just denied assistance 

of counsel, but “he did not have a lawyer at a critical stage.” By contrast, the 

Government argues that because “there was no violation of Pleitez’s trial 

rights,” the waiver should be enforced and the direct appeal dismissed. 

The denial of counsel is properly characterized as an ineffective 

assistance of counsel claim. See United States v. Cronic, 466 U.S. 648, 654 

(1984) (“[I]t has long been recognized that the right to counsel is the right to 

the effective assistance of counsel.”) (internal quotation marks and citation 

omitted). To the extent that Pleitez contends that the absence of counsel during 

a critical stage deprived him of his Sixth Amendment right to counsel, the 

claim falls within the appeal waiver exception. See United States v. Hillsman, 

480 F.3d 333, 335 (5th Cir. 2007) (“[T]he accused is entitled to the assistance 

of counsel not only at the trial itself, but at all ‘critical stages’ of his 

prosecution.”). Thus, we may review his denial of counsel claim.

B. Sixth Amendment Claim

Pleitez argues that amending the judgment and increasing the 

restitution award during a gap in representation between trial and appellate 

counsel violated his Sixth Amendment right to counsel. “This Court reviews 

constitutional challenges and questions of law de novo.” United States v. 

 Case: 16-20570 Document: 00514247528 Page: 7 Date Filed: 11/22/2017
No. 16-20570

8

Robles, 445 F. App’x 771, 776 (5th Cir. 2011) (citing United States v. Baymon, 

312 F.3d 725, 727 (5th Cir. 2002); United States v. Walker, 148 F.3d 518, 528 

(5th Cir. 1998)). Whether a defendant’s right to counsel was constructively

denied “is a mixed question of law and fact, subject to de novo review.”

Childress v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997). In support of his 

argument, Pleitez observes that the sentencing and assessment of a criminal 

penalty is a critical stage, and restitution imposed pursuant to § 3664 is a 

criminal penalty. And he contends that he had a right to be present for new 

sentencing or sentence modifications that made the original sentence “more 

onerous.” Here, the modified restitution amount was more onerous, and Pleitez 

needed counsel to raise objections to the Fourth Addendum. Thus, he asserts 

that the consideration and acceptance of the Fourth Addendum constituted a

critical stage of trial proceedings during which he was denied access to an 

attorney. We agree.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, 

the accused shall enjoy the right . . . to have the Assistance of Counsel for his 

defence.” U.S. Const. amend. VI. This right is not limited to the trial itself; an 

accused is entitled to assistance of counsel at all “critical stages” of criminal 

proceedings. Montejo v. Louisiana, 556 U.S. 778, 786 (2009); Hillsman, 480 

F.3d at 335. “The purpose of the Sixth Amendment guarantee of counsel is to 

ensure that a defendant has the assistance necessary to justify reliance on the 

outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668, 691–92 

(1984). Thus, an accused is entitled to assistance of an attorney who plays the 

adversarial role necessary to ensure that the proceeding itself is fair. Id. at 

685. Ordinarily, an ineffective assistance of counsel claim requires a two-prong 

showing that “representation fell below an objective standard of 

reasonableness” and “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

 Case: 16-20570 Document: 00514247528 Page: 8 Date Filed: 11/22/2017
No. 16-20570

9

Id. at 688, 694. However, “a trial is unfair if the accused is denied counsel at a 

critical stage of his trial,” and no showing of prejudice is required. Cronic, 466 

U.S. at 659. If counsel for the accused is absent during a critical stage, then 

there is a presumption of prejudice and “reversal is automatic.” Hillsman, 480 

F.3d at 335 (quoting Holloway v. Arkansas, 435 U.S. 475, 489 (1978); Cronic, 

466 U.S. at 659 n.25).

Neither the Supreme Court nor the Fifth Circuit have delineated all of 

the critical stages at which a defendant is entitled to the presence of counsel 

under the Sixth Amendment. A stage is determined “critical” where

circumstances indicate that counsel’s presence is necessary to ensure a fair 

process. See Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 212 (2008) (“[W]hat 

makes a stage critical is what shows the need for counsel’s presence.”). First, 

the Supreme Court and this Circuit have found critical stages where an 

accused is confronting his adversary, requiring the assistance of counsel to 

ensure a fair adversarial process.5 A critical stage in the proceeding is thus one 

where “the accused require[s] aid in coping with legal problems or assistance 

in meeting his adversary.” McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) 

(quoting United States v. Ash, 413 U.S. 300, 311 (1973); Mempa v. Rhay, 389 

U.S. 128, 134–35 (1967)). Second, “[t]o justify a particular stage as ‘critical,’ 

th[is] Court has not required [a] defendant to explain how having counsel 

would have altered the outcome of his specific case. Rather, th[is] Court has 

 

5 See, e.g., Estelle v. Smith, 451 U.S. 454, 470 (1981) (court-ordered psychiatric 

examinations); Geders v. United States, 425 U.S. 80, 91 (1976) (overnight recess between 

direct and cross examination of defendant); Herring v. New York, 422 U.S. 853, 858 (1975) 

(closing summation); Massiah v. United States, 377 U.S. 201, 205–06 (1964) (post-indictment 

interrogations); Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (arraignments); United States 

v. Russell, 205 F.3d 768, 772 (5th Cir. 2000) (testimony implicating defendant in conspiracy 

presented during counsel’s two-day absence due to illness); Tucker v. Day, 969 F.2d 155, 159 

(5th Cir. 1992) (constructive absence of counsel at re-sentencing hearing); Gomez v. Thaler, 

526 F. App’x 355, 359 n.3 (5th Cir. 2013) (hinting, but declining to hold in the habeas context, 

that a suppression hearing is a critical stage in a criminal proceeding).

 Case: 16-20570 Document: 00514247528 Page: 9 Date Filed: 11/22/2017
No. 16-20570

10

looked to whether ‘the substantial rights of a defendant may be affected’ during 

that type of proceeding.” Burdine v. Johnson, 262 F.3d 336, 347 (5th Cir. 2001) 

(en banc) (quoting United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991));

see also Mempa, 389 U.S. at 134. For this reason, “[s]entencing is a critical 

stage of a criminal proceeding.” Taylor, 933 F.2d at 312.

Pleitez pleaded guilty to conspiracy to engage in sex trafficking of 

children or by force, fraud or coercion, in violation of 18 U.S.C. § 1594(c).

Pursuant to 18 U.S.C. § 1593(a), mandatory restitution applied to Pleitez’s 

sentence. Under the mandatory restitution provision, Pleitez was required “to 

pay the victim (through the appropriate court mechanism) the full amount of 

the victim’s losses, as determined by the court.” 18 U.S.C. § 1593(b)(1); see also 

18 U.S.C. § 3664(f)(1)(A). The “full amount of the victim’s losses” includes “the 

greater of the gross income or value to the defendant of the victim’s services or 

labor or the value of the victim’s labor as guaranteed under the minimum wage 

and overtime guarantees of the Fair Labor Standards Act.” 18 U.S.C. 

§ 1593(b)(3). This Circuit recognizes that mandatory restitution is a criminal 

penalty and part of a criminal sentence. United States v. Adams, 363 F.3d 363, 

365 (5th Cir. 2004).

An order of restitution under § 1593 is “issued and enforced in 

accordance with section 3664.” 18 U.S.C. § 1593(b)(2). In order to assist the 

trial court in determining mandatory restitution owed to victims, § 3664 

requires the probation officer to complete a PSR. The PSR must contain

sufficient information for the court to order restitution, including “a complete 

accounting of the losses to each victim, any restitution owed pursuant to a plea 

agreement, and information relating to the economic circumstances of each 

defendant.” 18 U.S.C. § 3664(a); see also Fed. R. Crim. P. 32(c)(1)(B). The PSR

must be disclosed to the criminal defendant and the government attorney. See 

18 U.S.C. § 3664(b); Fed. R. Crim. P. 32(i)(1). One purpose of the disclosure 

 Case: 16-20570 Document: 00514247528 Page: 10 Date Filed: 11/22/2017
No. 16-20570

11

rule is to give a criminal defendant an opportunity to ensure that the report is 

“completely accurate in every material respect.” United States v. Missio, 597 

F.2d 60, 61 (5th Cir. 1979) (citation omitted). But the determination of 

restitution does not end there. Section 3664 further contemplates the 

possibility of increased restitution determinations after sentencing:

If the victim’s losses are not ascertainable by the date that is 10 

days prior to sentencing, the attorney for the Government or the 

probation officer shall so inform the court, and the court shall set 

a date for the final determination of the victim’s losses, not to 

exceed 90 days after sentencing. If the victim subsequently 

discovers further losses, the victim shall have 60 days after 

discovery of those losses in which to petition the court for an 

amended restitution order. Such order may be granted only upon 

a showing of good cause for the failure to include such losses in the 

initial claim for restitutionary relief. 

18 U.S.C. § 3664(d)(5). The statute provides further guidance to courts when 

determining the amount of restitution owed: “After reviewing the report of the 

probation officer, the court may require additional documentation or hear 

testimony” in calculating a final determination of restitution. Id. § 3664(d)(4).

While the statute does not explicitly require a hearing for increased 

restitution awards, it does imply that a defendant is entitled to an opportunity 

to be heard. Section 3664 states that “[a]fter reviewing the report of the 

probation officer, the court may require additional documentation or hear 

testimony.” Id. § 3664(d)(4) (emphasis added). The permissive tone seems to 

suggest that a district court has discretion to provide an opportunity to respond 

to a PSR. But ultimately, we do not believe that this language grants the 

district court discretion to increase a restitution award outside the presence of 

the defendant and counsel. Indeed, § 3664 elsewhere implies that a hearing is 

required before accepting the restitution recommendation in a PSR. Before 

issuing a final restitution determination, the sentencing court must resolve 

restitution issues, including any objections raised by a defendant. See id.

 Case: 16-20570 Document: 00514247528 Page: 11 Date Filed: 11/22/2017
No. 16-20570

12

§ 3664(e) (“Any dispute as to the proper amount or type of restitution [is]

resolved by the court by the preponderance of the evidence.”). And as Pleitez 

argues, § 3664 requires a court to “set a date for the final determination of the 

victim’s losses” before increasing the restitution award, implying that a 

defendant should be afforded the opportunity to be heard before a court adopts 

a PSR’s recommendation. Id. § 3664(d)(5). Furthermore, Rule 32(i) governing 

sentencing requires that a court “verify that the defendant and the defendant’s 

attorney have read and discussed the presentence report and any addendum 

to the report.” Fed. R. Crim. P. 32(i)(1)(A) (emphasis added). Thus, the 

statutory scheme requires a district court provide a criminal defendant with 

an opportunity to be heard before imposing mandatory restitution.

We conclude that the final determination of a mandatory restitution 

award under § 3664(d)(5) constitutes a critical stage during which a defendant 

is entitled to the assistance of counsel. A defendant filing objections to a PSR 

addendum “require[s] aid in coping with legal problems or assistance in 

meeting his adversary.” McAfee, 630 F.3d at 391. Before a court makes a final 

determination of the victim’s losses, a defendant requires the assistance of 

counsel to confront the Government in the sentencing process, thereby 

ensuring the PSR’s accuracy. A final determination of a restitution award also 

implicates a defendant’s substantial rights. An order of restitution is part of 

the sentencing process; a defendant has a constitutional right “at the final 

sentencing” to “respond to a definitive decision of the judge.” United States v. 

Moree, 928 F.2d 654, 655–56 (5th Cir. 1991) (quoting United States v. Behrens, 

375 U.S. 162, 168 (1963) (Harlan, J., concurring)); see also Caille v. United 

States, 487 F.2d 614, 616 (5th Cir. 1973). Similarly, a defendant has a right to 

be present if the court modifies a sentence to make it more onerous. United 

States v. Clark, 816 F.3d 350, 355 (5th Cir. 2016) (“[T]he presence of the 

defendant usually is not required, unless the modification makes the sentence 

 Case: 16-20570 Document: 00514247528 Page: 12 Date Filed: 11/22/2017
No. 16-20570

13

more onerous.”) (quoting Moree, 928 F.2d at 655–56). At a final determination 

of restitution, a defendant is thus entitled to the assistance of an attorney who 

plays the adversarial role necessary to ensure that the proceeding itself is fair.

See Strickland, 466 U.S. at 685, 691–92. Where a court increases a mandatory 

restitution award, a defendant is entitled to the assistance of counsel. 

The Government disputes that Pleitez was denied access to counsel at a 

critical stage of trial proceedings, but its arguments are unpersuasive. First, 

the Government argues that Pleitez could have asked for a hearing or filed 

objections to the amended order of restitution or amended judgment. But 

Pleitez was not appointed counsel until the day the court entered the amended 

judgment. Once the district court imposed its sentence, it was too late for 

Pleitez to challenge the PSR’s findings. See United States v. Engs, 884 F.2d 

894, 896–97 (5th Cir. 1989). Second, the Government argues that the order did 

not affect any substantial rights because Pleitez cannot show he would have 

received less punishment in the restitution order. However, Pleitez need not 

show a different outcome if the entry of an amended judgment based on a new 

restitution recommendation was a critical stage. See Cronic, 466 U.S. at 659.

Restitution is a criminal sentence. The new restitution award in this case 

imposed a greater penalty than what was disputed at the sentencing hearing 

($113,790 as opposed to $90,110), and Pleitez was denied any opportunity to 

dispute the calculation of restitution in the Fourth Addendum with the 

assistance of counsel.

Finally, the Government argues that the amount of restitution was fully 

vetted between the parties at the sentencing hearing, and Pleitez was 

represented by counsel throughout the proceedings and filed objections to 

every previous PSR addendum. Thus, Pleitez was not denied the assistance of 

counsel. Underlying this argument is an assumption that the Fourth 

Addendum merely affirmed the earlier restitution recommendation based on 

 Case: 16-20570 Document: 00514247528 Page: 13 Date Filed: 11/22/2017
No. 16-20570

14

the original method of computation. But the Fourth Addendum went beyond 

the recommendation presented at the sentencing hearing—it increased the 

restitution award based on a new method of calculation that was not previously

presented to the defendant or the court. Through the Third Addendum, the 

probation officer’s restitution recommendation relied on the assumption that 

the victims were earning minimum wage under the FLSA. Under the Fourth 

Addendum, for the first time, the award was based on an estimate of the 

victims’ actual earnings by computing the amount charged for each sex act 

multiplied by an estimated number of customers. On appeal, Pleitez offers an 

example of how this new calculation might be inaccurate. He claims that were 

he given the opportunity, he would have presented evidence showing that “the 

prostitutes received half (50%) of the gross receipts” from the services they 

performed and thus the restitution amount for lost wages should be reduced 

by half. Pleitez could not have made this argument when the PSR calculated 

restitution under the FLSA. After the Fourth Addendum, however, this 

argument was available. We cannot fairly say he was represented when the 

new restitution recommendation was considered and accepted by the district 

court.

III. CONCLUSION

Because Pleitez did not have a lawyer when the district court considered 

and accepted the Fourth Addendum to the PSR containing a more onerous 

restitution award, he was effectively denied any opportunity to object or 

allocute when his sentence was enhanced. Under this Court’s precedent, this 

was a critical stage of the trial proceedings, and Pleitez was denied effective 

assistance of counsel. Restitution is a part of sentencing, which is a critical 

stage of the trial proceedings. By issuing a more onerous restitution award 

based on a new method of computation in the Fourth Addendum, the district 

court increased Pleitez’s sentence outside the presence of the defendant or 

 Case: 16-20570 Document: 00514247528 Page: 14 Date Filed: 11/22/2017
No. 16-20570

15

defendant’s counsel. Pleitez’s substantial rights were at issue—he faced a 

criminal sentence—and he required the assistance of counsel in a trial-like 

setting—sentencing. The entry of a final restitution order that imposes a more 

onerous award thus constitutes a “critical stage” of proceedings where a 

defendant requires the assistance of counsel. Accordingly, Pleitez was entitled 

to representation, and his Sixth Amendment right to counsel was violated. On 

remand, the district court should either modify the restitution award to reflect 

the original amount for $90,110, or appoint Pleitez counsel and allow him to 

argue against the increased restitution award.

For the foregoing reasons, the district court’s entry of final judgment and 

restitution order are VACATED. We REMAND this case for further 

proceedings consistent with this opinion.

 Case: 16-20570 Document: 00514247528 Page: 15 Date Filed: 11/22/2017