IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Degollado pleaded guilty to receiving child pornography in violation

of 18 U.S.C. § 2225A(a)(2)(A). The district court sentenced Degollado to 210

months in prison and ordered him to pay restitution. On appeal, Degollado

argues that the district court improperly applied a sentence enhancement

pursuant to U.S.S.G. § 2G2.2(b)(3)(B). Degollado also argues that the district

court erred in calculating the restitution award. Because Degollado waived the

sentence enhancement issue and because we find no error in the order of

United States Court of Appeals

Fifth Circuit

F I L E D

November 22, 2013

Lyle W. Cayce

Clerk

*

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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restitution, we AFFIRM.

I.

In August 2011, Immigration and Customs Enforcement (“ICE”)

commenced an investigation to discover persons using peer-to-peer (“P2P”)

networks to traffic in child pornography. ICE located a specific computer,

connected to the internet at an address in McAllen, Texas, that was

participating in the exchange of child pornography over a P2P network. ICE

then executed a search warrant at the McAllen location, where Degollado

resided, and recovered the computer. Degollado admitted to owning the

computer and to utilizing a P2P network to download child pornography. 

Degollado explained that he was aware that his child pornography files, which

he stored in a “shared folder,” were accessible by others on the P2P network. 

According to the supervising ICE agent, during the course of the investigation,

Degollado had shared approximately seventy-two images and sixteen videos with

P2P user accounts operating under ICE control. A forensic examination revealed

that the computer contained approximately five-hundred images and sixty-six

videos of children engaged in sexually explicit conduct, including several

children identified by the National Center for Missing and Exploited Children

(“NCMEC”).1 One of these children was associated with the “Vicky” series.

A grand jury indicted Degollado in November 2011 on one count of

receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).2

1 NCMEC maintains a computerized database of images of children that have been

exploited in child pornography. NCMEC separates recurring images of identifiable children

into “series.” 

2 Under § 2252A(a)(2)(A), it is unlawful to “knowingly receive[] . . . any child

pornography that has been mailed, or using any means or facility of interstate or foreign

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Degollado pleaded guilty to the one-count indictment in January 2012.

In the Presentence Investigation Report (“PSR”), the probation officer

recommended a five-level increase in Degollado’s offense level pursuant to

U.S.S.G. § 2G2.2(b)(3)(B) because the crime involved the distribution of child

pornography “for the receipt, or expectation of receipt, of a thing of value, but not

for pecuniary gain.” Degollado filed an objection to the PSR’s recommendation,

and the probation officer responded that the enhancement was warranted

because Degollado had participated in the exchange of child pornography for

other child pornography. At the sentencing hearing in March 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 rooms, 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 PSR’s recommendation, the district

court concluded that the images and videos constituted things of value for the

purpose of § 2G2.2(b)(3)(B). The district court sentenced Degollado to 210

months in prison.3

At a separate restitution hearing in June 2012, the district court concluded

that restitution was mandatory under 18 U.S.C. § 2559(b)(1) and that Degollado

commerce shipped or transported in or affecting interstate or foreign commerce by any means,

including by computer.”

3 Degollado’s offense level was 37, and his criminal history category was I, resulting

in a Guidelines range of 210 to 262 months in prison. Because § 2252A(b)(1) provides for a

maximum sentence of 240 months, however, Degollado’s effective Guidelines range was 210

to 240 months in prison.

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was jointly and severally liable for the losses suffered by the “Vicky” series

victim. In doing so, the district court ruled that the types of losses listed under

§ 2259(b)(3)(A)S(E) do not require a finding of proximate cause, but that those

listed under § 2559(b)(3)(F) do require such a finding. The district found that

Degollado had proximately caused the subparagraph (F) losses. Accordingly,

based on evidence of costs supplied by the “Vicky” series victim’s attorney, the

district court concluded that the victim’s losses totaled $765,067.67 (including

$42,241.04 under subparagraph (F) for the attorney’s costs for forensic

evaluations, supporting records, and travel related to 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 placing files in the “shared folder” does not warrant the

application of § 2G2.2(b)(3)(B). Degollado also challenges the order of

restitution. We address each issue in turn.

II.

The United States argues that Degollado has either waived or forfeited his

right to appeal the application of the sentence enhancement. “Waiver and

forfeiture are two different means by which a defendant may react to an error

made by the government or the district court.” United States v. Dodson, 288

F.3d 153, 160 (5th Cir. 2002). Waiver is the intentional and knowing

relinquishment of a right. United States v. Olano, 507 U.S. 725, 733 (1993). 

Waiver occurs when a defendant makes “an affirmative choice . . . to forego any

remedy available to him, presumably for real or perceived benefits.” Dodson,

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288 F.3d at 160. Waived errors are unreviewable on appeal. Id. at 160–61. 

Forfeiture, by contrast, “is the failure to make a timely assertion 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. Plain error review requires the court to determine: whether any error was

plain or obvious, whether the error affected the defendant’s substantial rights,

and whether the court must correct the error in order to prevent a manifest

miscarriage of justice. Id.

We conclude that, based on the sentencing hearing colloquy, Degollado has

waived any error regarding the application of § 2G2.2(b)(3)(B). The five-level

increase applies to “any transaction, including bartering or other in-kind

transaction, that is conducted for a thing of value, but not for profit.” § 2G2.2

app. n.1. Moreover, a “thing of value” is defined as “anything of valuable

consideration” and is illustrated by an example in the Application Note: “[I]n a

case involving the bartering of child pornographic material, the ‘thing of value’

is the child pornographic material received in exchange for other child

pornographic material bartered in consideration for the material received.” Id.

Degallado’s counsel admitted at sentencing that Degollado had engaged in a

“bartering sort of exchange” for images and videos, thereby admitting that

Degollado had engaged in the specific activity addressed by § 2G2.2(b)(3)(B). It

is irrelevant that no other “things of value” beyond the images and videos were

involved in Degollado’s offense: as the district court noted, images and videos

are themselves “things of value” sufficient to support the application of the

enhancement. Accordingly, Degollado 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 appeal the

enhancement, we conclude that he has nonetheless forfeited that right. 

Degallado’s counsel’s explanation of the objection at the sentencing hearing

reveals that he only objected to the extent that other “things of value” beyond

images and videos were not part of the bartering. Counsel never objected to the

issue he raises today—i.e., whether the “sharing” of images and videos was

sufficient to trigger the enhancement. The objection was therefore insufficiently

clear, and plain error review applies. Accordingly, because Degollado utterly

fails to establish the requirements for plain error, we find no reversible error.

III.

We turn now to Degollado’s challenge to the restitution award, which

amounted to $765,067.67. Section 2259 provides for mandatory restitution for

child victims of sexual exploitation offenses, including the crime of 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 services relating to physical, psychiatric, or psychological

care; 

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care

expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the

offense. 

§ 2259(b)(3)(A)S(F). The district court 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. Id. We review the legality of a restitution order de novo and,

if the order is legally permitted, the amount of the order for abuse of discretion. 

In re Amy Unknown, 701 F.3d 749, 759 (5th Cir. 2012) (en banc), cert. granted,

Paroline v. United States, 133 S. Ct. 2886 (2013).

Degollado argues that the district court committed legal error by not

requiring the United States to prove that his offense was the “proximate cause”

of the “Vicky” series victim’s losses under § 2259(b)(3)(A)S(E).4 This argument

is foreclosed by our recent en banc decision, In re Amy, wherein we held that the

types of losses listed in § 2259(b)(3)(A)S(E) do not require a finding of proximate

causation. 701 F.3d at 762 (“The structure and language of § 2259(b)(3) limit the

phrase ‘suffered by the victim as a proximate result of the offense’ in

§ 2259(b)(3)(F) to the miscellaneous ‘other losses’ 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, the $42,241.04 portion of the award,

which the district court concluded was comprised of “other losses” under

§ 2259(b)(3)(F). Degollado argues that the United States failed to demonstrate

proximate cause sufficiently. We need not engage in any proximate cause

analysis, however. Because these losses—costs for forensic evaluations,

supporting records, and travel, all of which were costs incurred by the victim’s

attorney—fall within the categories listed in subparagraphs (A)–(E), proximate

4 As an initial matter, Degollado does not dispute that the victim to whom the district

court ordered restitution be paid is a “victim” under § 2259. See In re Amy, 701 F.3d at 773

(“[W]here a defendant is convicted of possessing, receiving, or distributing child pornography,

a person is a victim under [§ 2259] if the images the defendant possesses, receives, or

distributes include those of that individual.”).

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cause is not required. The final judgment does not reflect that these losses were

ordered only under subparagraph (F), and we may affirm on any grounds

supported by the record. United States v. McSween, 53 F.3d 684, 687 n.3 (5th

Cir. 2001). Accordingly, we find no reversible error in the order of restitution. 

AFFIRMED.

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