### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40469

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. XAVIER DEGOLLADO, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-01824

Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM: * Xavier D e g o l l a d o p l e a d e d g u i l t y t o r e c e iv i n g c hild p ornography in violation

o f 1 8 U .S.C. § 2225A(a)(2)(A). The district c o urt sentenced Degollado to 2 1 0 months in pris o n a n d o r d ered him to pay restitution. On appeal, Degollado argues that the district court improperly applied a sente n c e enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). Degollado also a rgues that the district court erred in calculating t he restitution a ward. Because D egollado waived the

s e n t e n c e e nhancement issue and because we find no error in t he order of U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40469 Document: 00512450285 Page: 1 Date Filed: 11/22/2013No. 12-40469

restitution, we AFFIRM. I. In August 2011, Immigration and Cus t o m s Enforcement (“ICE”)

c ommenced an i nvestigation to discover persons using peer-to-peer (“P2P” ) networks to traffic in child pornography. ICE located a spe c i f i c c o mputer, connected t o t he i nterne t a t a n address in McAllen, Texas, that was participating in the exchange of child pornography over a P2P network. I CE then executed a search w arrant at t he McAllen loca t i o n , w here Degollado resided, and recovered the computer. Degollado admitted to owning the computer and to utilizing a P2P network t o download child p o r n o g raphy. Degollado explained t hat he w as aware t hat h is child pornography files, which he stored i n a “ shared folder,” were accessib l e b y o thers on the P2P network. According to the supervising ICE agent, during the course of the investigation, D e g o l l a d o h a d s h a red approximately seventy-two i m a g e s a n d s i x t e e n vi d e o s w i t h P 2P user accounts operating under ICE control. A forensic e x a m i n a t i o n r e v e a l e d that the computer contained approximately f ive-hundred images and s ixty-six videos o f children engaged in sexually e xpli c i t conduct, including several children identified b y the National Center for Missing a nd Exploited Children (“NCMEC”). 1 One of these children was associated with the “Vicky” series. A grand jury i ndicted Degollado in November 2011 on one count of receiv i n g child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). 2

1 N CM EC m aintains a com p uterized d atabas e of im ages of child ren that have been exp loited in child pornograp hy. N CM EC s ep arates recurring im ages of id entif iable child ren into “s eries

. ”

2 U n d e r § 2 252A( a) ( 2) (A) , it is unlaw f ul to “k now ingly receive[ ]

. . . any chi l d p ornograp hy that has been m ailed , o r u s i n g any m eans or f acility of inters tate or f oreign

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Degollado pleaded guilty to the one-count indictment in January 2012. In the Presentence I nvestigation Report ( “PSR”), t h e probation officer

r e c o m mended a five-level increase in Degollado’s o ffense l e vel pursuant t o U.S.S.G. § 2 G 2

. 2 (b)(3)(B) because the crime involved the distribution of child pornography “for the receipt, o r expectation of receipt, of a thing of value, but not for pecuniary gain.” Degollado filed a n objection to the PSR’s recommendation, and the probation officer responded that the e nhancement w as warranted because Degollado had participated in th e e xchange o f child pornography for other child pornography. At the sentencing hearing in M arch 2012, Degollado’s counsel again objected to the five-level increase. Counsel then argued: [T]here was never any money transferred in this case and the way I understand the procedure in these chat r o oms, so to speak, is that it is a bartering sort of exchange and just to point out to the Court that other than videos or the images, that there was never a thing of value. Overruling the objection and adopting the P SR’s recommendation, the district court c oncluded that the images and videos constituted things o f v alue for the
purpose o f § 2G2.2(b)(3)(B). The district court sentenced Degollado to 210 months in prison. 3 At a separate r e s t i t u t i o n h e a r i ng in June 2012, the district court concluded that restitution was mandatory under 1 8 U.S.C. § 2559(b)(1) and that Degollado

com m erce s hip p ed or trans p orted in or af f ecting inters tate or f

oreign com m erce by any m eans , includ ing by com p uter. ”

3 D egollad o’s of

f ens e level w as 37, and his crim inal his tory category w as I, res ulting in a G uid elines range of 210 to 262 m o n ths in p ris on. Becaus e § 2252A(b) ( 1) p rovid es f or a m axim um s entence of 240 m onths , how ever, D egollad o’s ef f ective G uid elines range w as 210 to 240 m onths in p ris on.

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was jointly and severally liable for t he losses suffer e d b y t h e “Vicky” series victim. In doing s o, the district court ruled that the types of losses listed under § 2259(b)(3)(A)

S (E) do n ot r e q u i r e a finding of proximate c a use, but that those listed under § 2559(b)(3)(F) d o requ i r e s u c h a finding. The district found that Degollado had proximately c aused the subparagraph (F) l osses . A c c o rdingly, based on evidence of costs supplied by the “Vicky” series v ictim’s attorney, the district court concluded t hat the victim’s losses totaled $765,067.67 (including $42,241.04 under subparagraph (F) for the attorney ’ s costs for forensic evaluations, supporting r ecords, and travel related t o the “Vicky” series victim’s case) and ordered restitution in that amount. The final judgment reflects only the total amount of restitution ordered and is not broken down into categories of losses. Degollado objected to the order of restitution. Degollado timely appealed, challenging his sentence of imprisonment on the grounds that merely p lacing f iles in the “shared folder” does not warrant the

a p p l i c ation of § 2G2.2(b)(3)(B). Degollado also challenges the order o f restitution. We address each issue in turn. I I. The United States argues that Degollado has either waived or forfeited his right to appeal the application of the sentence enhancement. “Waiver and forfeiture a re two different means by which a defenda n t m a y r eact to an error made by the g overnment or the district court.” United States v. Dodson , 288 F.3d 1 53, 16 0 ( 5 t h C i r . 2 002). W aiver is the intentional and knowing relinquishment o f a right. United States v. Olano , 507 U.S. 725, 7 33 (1993). Waiver occurs when a defendant makes “an a ffirmative choice

. . . t o forego any remedy available t o him, p r e s u m a b ly for r eal or perceived benefits.” Dodson ,

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288 F.3d a t 160. Waived errors are unreviewable on appeal. Id. at 160–61. Forfeiture, b y c ontrast, “is the failure to make a timely a ssertion of a right.” Olano , 507 U.S. at 733. Where a defendant “has failed to make his objection the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error.” United States v. Chavez–Hernandez , 671 F.3d 494, 497. P lain error r eview requires the court to determine: whether any error was plain or o bvious, whether the error affected the defendant’s substantial rights, and whether the c ourt m u s t correct the error i n order to prevent a manifest miscarriage of justice. Id. W e c o n c l u d e that, based on t he sentencing h earing colloquy, Degollado h a s

w a i v e d any error r egarding the application o f § 2 G2.2(b)(3)(B). The five-level increase applies to “ any t ransaction, includ i ng bartering or other in-kind transactio n , that is conducted for a thing o f value, but not for profit.” § 2G2.2
app. n . 1

. M oreover, a “thing of value” is d efined as “anything of valuable consideration” and is illustrated by an example in the Application N o te: “[I]n a
case involving the bartering of child pornographic material, the ‘thing of value’ is t he child pornographic material r eceived in e xchange f or other child pornographic material b artered in consideration for the material received.” I d. Degallado’s counsel admitted at sentencing that Degollado had engaged in a “bartering sort of exchange” for images a n d videos, t hereby admitting that Degollado had e ngaged in the specific activity addressed by § 2G2.2(b)(3)(B). It is irrelevant that no other “things of v alue” beyond t h e images and videos were involved in D egollado’s o ffense: as t he district c o urt noted, images and videos

are themselves “things of value” sufficient to support the application of the enhancement. Accordingly, D egollado made an “affirmative choice” to concede

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that he bartered for “things of value.” This issue is therefore unreviewable. Assuming arguendo that Degollado did not waive the right to a ppeal the enhancement, we c onclude that he h a s nonetheless forfeited t hat right. Degallado’s counsel’s explanation of the objection at the sentenci n g h earing reveals that he only objected to the extent that o ther “things of value” beyond images and videos were not part of the bartering. Counsel never objected to the issue h e raises t oday—i.e., whethe r t h e “ sharing” of images a nd videos was sufficient to trigger t he e n hancement. T h e objection was t herefore insufficiently clear, and plain e rror r eview applies. Acc o r d ingly, because Degollado utterly fails to establish the requirements for plain error, we find no reversible error. III. We turn now to Degollado’s c h allenge to the restitution award, w h i c h amounted to $765,067.67. Section 2259 provides for mandatory restitution for child victims of sexual e x p loitation o ffenses, including the crime o f receiving child pornography. An order of restitution under that section “shall direct the defendant to pay the victim

. . . the full amount of the victim’s losses,” including (A) medical s e r vices relating to physical, psychiatric, o r psychological care; (B) physical and occupational therapy or rehabilitation; (C) neces s a r y t r a n s p o r t a t i o n , t e m p o r a r y h o u s i n g , a n d c h i l d care expenses; (D) lost income; (E) attorneys’ fees, as well as other costs incurred; and (F) any other losses s uffered by the victim as a proximate result of the offense. § 2259(b)(3)(A)

S (F). The district c ourt may resolve “[a]ny dispute as to the
proper amount or type of restitution

. . . by the preponderance of the evidence.” 18 U.S.C. § 3664(e). The United States bears the burden of demonstrating the

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amount of the loss. I

d. We review t he legality of a restitution o rder de novo and, if the order is legally p ermitted, the amount of the order for abuse of discretion. In re Amy Unknown , 701 F.3d 7 49, 759 (5th C ir. 2012) ( en banc), cert. granted , Paroline v. United States , 133 S. Ct. 2886 (2013). Degollado argues that the district c ourt committed legal error by not requiring the United S t ates to prove that his offense was t he “ proximate cause” of the “Vicky” series victim’s losses under § 2259(b)(3)(A)

S (E). 4This argument is f oreclosed by o u r recent en b anc decision, In re Amy , wherein we h e ld that the types of losses listed in § 2259(b)(3)(A)

S (E) do not r e quire a finding o f proximate causation. 701 F.3d at 762 (“The structure a nd language of § 2 259(b)(3) limit the
p h rase ‘suffered by the victim as a proximate result o f the offense’ i n § 2 259(b)(3)(F) to the m i scellaneous ‘other l o sses’ contained in that subsection.”). Degollado does not challenge the amount of restitution ordered for the losses ordered under subparagraphs (A)–(E). Degollado does challenge, however, t h e $42,241.04 p ortion of the award, which the district court concluded was comprised of “other losses” under § 2259(b)(3)(F). Degollado argues that the United States f ailed to demonstrate proxima t e c a u s e sufficiently. We need not engage in any proximate cause analysis, however. Because these losses—costs for forens i c e valuations, supporting records, and travel, all of which were costs incurred by the victim’s attorney—fall within the categories listed in s ubparagraphs ( A)–(E), proximate

4 As an initial m atter, D egollad o d oes not dis p ute that the victim to whom the d is trict court ord ered res titution be p aid is a “victim ” und er § 2259. See I n re Amy , 701 F. 3d at 773 ( “[ W] here a d ef

end ant is convicted of p os s es s ing, receiving, or dis tributing child p ornograp hy, a pers on is a victim und er [ § 2259] if the im ages the def end ant p os s es s es , receives , or d is tributes includ e thos e of that ind ivid ual. ”)

.
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cause is n ot required. The final judgment does not reflect that these losses were orde r e d o nly under subparagraph (F), a nd we may affirm on any grounds

s upported by t he r ecord. United States v. McSween , 53 F.3d 6 84, 687 n.3 (5t h Cir. 2001). Accordingly, we f ind no reversible error in the order o f restitution. AFFIRMED.

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