IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10513

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MELISSA MANDA HERRERA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:13-CR-55-1

Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*

PER CURIAM:*

Melissa Manda Herrera pled guilty, pursuant to a written plea 

agreement, to Count One of an indictment charging her with four counts of 

theft concerning programs receiving federal funds under 18 U.S.C.

§§ 666(a)(1)(A) and 2. The indictment alleged that Herrera, while working as 

an agent of the Red Creek Municipal Utility District (“District”) in Tom Green 

County, Texas, knowingly embezzled or obtained by fraud “property of a value 

* District Judge for the Eastern District of Texas, sitting by designation

** 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.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2015

Lyle W. Cayce

Clerk

 

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of at least $5000 and owned by and under the care, custody, and control [of] 

the Red Creek Municipal Utility District, San Angelo, Texas.” In her plea 

agreement, Herrera agreed that her sentence could include “restitution to 

victims or to the community, which may . . . include restitution arising from 

all relevant conduct . . . .” However, after reviewing the Pre-Sentence Report 

(“PSR”), Herrera objected to, among other things, the suggested restitution 

amount of $85,790.80. She argued that the Mandatory Victim Restitution Act 

(“MVRA”), 18 U.S.C. § 3663A, did not permit restitution of three sums included 

in the restitution calculation. Over her objections, the district court adopted 

the findings in the PSR, including the entire suggested restitution amount.

On appeal Herrera contends that the district court’s restitution order 

included three sums that are not recoverable as restitution under the MVRA: 

the amount representing losses to ACS, a third-party, the sum for the District’s 

investigative audit costs, and the sum for unemployment benefits she claimed 

after her termination. For reasons stated herein, we AFFIRM the judgment of 

the district court.

I. BACKGROUND 

From approximately April 2003 through February 2012, Melissa Manda 

Herrera worked part-time as office manager and sole employee for the Red 

Creek Municipal Utility District in San Angelo, Texas. As office manager, 

Herrera was responsible for collecting all customer payments for “water sales, 

fees associated with installing new meters and transferring service, and 

various administrative fees.” While she worked there, Herrera kept some 

customer payments for herself by failing to deposit all of the cash payments 

into the District’s bank account. Herrera’s theft was discovered after an 

annual audit in late 2011 revealed a discrepancy of approximately $10,000

between the District’s bank balance and the accounting records. The auditor 

informed Herrera about the discrepancy and requested additional documents 

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to help complete the audit; Herrera claimed that the requested documents 

were no longer available. The auditor was able to receive the necessary 

information from Concho Rural Water Corporation (“CRWC”), the private 

company hired to manage the District’s water distribution system and 

maintain customer billing records. The District placed Herrera on 

administrative leave, while Herrera continued to deny any wrongdoing. The 

District terminated Herrera’s employment on February 28, 2012. The final 

investigative audit, completed after Herrera was fired, revealed a $9,857 

discrepancy for the fiscal year ending September 30, 2011, and an $18,277 

discrepancy for the fiscal year ending September 30, 2012.

After terminating Herrera, the District hired a CPA who referred the 

District to the Federal Bureau of Investigations (“FBI”). FBI Special Agent 

Broadway conducted an independent investigation of the District’s financial 

records and determined that Herrera had stolen a total of $43,360.86 between 

October 1, 2007 and February 28, 2012. The FBI investigation also revealed 

that Herrera had fraudulently obtained a District credit card which she had 

been using for personal expenses. To pay the bills associated with her District 

credit card, Herrera had stolen funds from a different employer, Acme 

Contracting Services (“ACS”). While working with the District, Herrera also 

worked part-time as a bookkeeper with ACS until July 2012. To pay the bills 

for her District credit card, Herrera had issued ACS checks using her signature 

stamp, resulting in a total loss of $22,193.54 to ACS.

Herrera was charged with four counts of theft concerning programs 

receiving federal funds, and entered a plea agreement in which she pled guilty 

to Count One, theft concerning programs receiving federal funds, under 

18 U.S.C. §§ 666(a)(1)(A) and 2. In the plea agreement, Herrera agreed that 

as part of her sentence the court could impose “restitution to victims or to the 

community, which may be mandatory under the law and which Herrera agrees 

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may include restitution arising from all relevant conduct, not limited to that 

arising from the offense of conviction alone.” 

The probation officer prepared a PSR suggesting restitution for 

disbursement to the victims of Herrera’s embezzlement. Initially, he 

determined that Herrera’s offense resulted in a loss of $65,554.40, comprising

the District’s direct loss ($43,360.86) and ACS’s related loss ($22,193.54). The 

probation officer found that the District was entitled to an additional

$4,131.40, the amount it had been required to pay to the Texas Workforce 

Commission (“TWC”) for unemployment benefits Herrera fraudulently claimed 

by asserting wrongful termination from the District. In total, the PSR 

recommended $85,790.80 in restitution.

Herrera conceded liability for $43,360.86 to the District, but objected to 

the remaining balance of the suggested amount. She argued that the MVRA 

did not permit restitution to the District for $16,105 in investigative audit 

expenses, the $22,193.54 in losses to ACS, or the $4,131.40 paid to the TWC.

In response, the probation officer explained that the three contested sums were 

properly included because Herrera’s plea agreement permitted restitution for 

all relevant conduct not limited to loss arising from the offense of conviction 

alone. At sentencing, the district court adopted the findings in the PSR and 

imposed a top-of-the-Guidelines sentence of 21 months in prison, and a threeyear term of supervised release. The district court ordered that Herrera pay 

restitution of $63,597.26 to the District and $22,193.54 to ACS. Herrera filed 

a timely notice of appeal.

II. DISCUSSION

Herrera challenges the inclusion of the investigative audit costs, the 

losses to ACS, and the cost of her unemployment benefits claim in the court’s 

restitution order.

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“A federal court cannot order restitution except when authorized by 

statute.” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005). The MVRA

requires a sentencing court to order restitution for a victim’s “actual loss 

directly and proximately caused by the defendant’s offense[s] of conviction.” 

United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012); 18 U.S.C. 

§ 3663A(a)(3). Under the MVRA “[r]estitution is limited to the loss actually 

caused by the offense of conviction, the time span of which is defined by the 

‘specific temporal scope’ of the indictment.” United States v. DeLeon, 728 F.3d 

500, 507 (5th Cir. 2013) (emphasis in original). The MVRA does not permit a 

court to award a windfall greater than the victim’s actual loss. Id. at 506.

However, ordering restitution to persons other than the victim of the offense is 

permissible “if agreed to by the parties in a plea agreement.” 18 U.S.C 

§ 3663A(a)(3).

The legality of a restitution award is reviewed de novo. United States v. 

Espinoza, 677 F.3d 730, 732 (5th Cir. 2012). When a restitution award is 

legally permissible, we review preserved error as to the quantum of the award 

for abuse of discretion. Sharma, 703 F.3d at 322. A court ordering restitution 

need not include a reasoned analysis of how it arrived at its award, so long as 

the record provides an adequate basis to support the restitution order in a 

manner that allows for effective appellate review. DeLeon, 728 F.3d at 507.

With these rules in mind, we review each of Herrera’s challenges.

A. Restitution to ACS 

According to Herrera, including $22,193.54 lost by ACS is contrary to the 

MVRA because ACS was not a victim of her offense of conviction.1 The MVRA 

1 Herrera also claims that the award to ACS is impermissible because, even though it 

arises from relevant conduct, she did not agree to pay restitution for losses arising from 

relevant conduct. Because Herrera’s plea agreement explicitly encompasses “restitution 

arising from all relevant conduct,” this argument is meritless. 

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requires defendants “to make full restitution for offenses in which an 

identifiable victim has suffered a pecuniary loss.” United States v. Beydoun, 

469 F.3d 102, 107 (5th Cir. 2006). “[T]he term ‘victim’ means a person directly 

and proximately harmed as a result of the commission of an offense.” 18 U.S.C. 

§ 3663A(a)(2). However, “if agreed to by the parties in a plea agreement, [the 

court shall also order] restitution to persons other than the victim of the 

offense.” 18 U.S.C. § 3663A(a)(3). 

Regardless whether ACS was a “victim” of Herrera’s offense of 

conviction, a defendant may enter a plea agreement to pay restitution beyond 

that which is required by the MVRA, and such an award to a non-victim may 

be proper. Herrera’s plea agreement explicitly permits “restitution to victims 

or to the community, which may be mandatory under the law, and which 

Herrera agree[d] may include restitution arising from all relevant conduct, not 

limited to that arising from the offense of conviction alone.” 

Alternatively, Herrera contends that the restitution provision of her plea 

agreement is ambiguous and thus should be construed in her favor. This 

argument is clearly foreclosed by our precedent in United States v. Miller. 

406 F.3d 323, 330 (5th Cir. 2005). Like Herrera, the defendant in Miller 

entered a plea agreement to pay restitution “arising from all relevant conduct, 

not limited to that arising from the offenses of conviction alone.” 406 F.3d at

329. Miller contended this language was ambiguous. This court dismissed 

Miller’s ambiguity argument, stating that “[d]espite Miller’s protestations to 

the contrary, he did give his consent to the restitution.” Id. at 330 (internal 

quotation omitted). To avoid any confusion on the subject, the court further 

noted that “[t]here is, however, no ambiguity. . . .[Miller] agreed that by 

pleading guilty he recognized that the maximum penalties that might be 

imposed on him included restitution for all relevant conduct.” Id. Miller

controls factually and legally and refutes Herrera’s ambiguity argument.

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B. Investigative Audit Costs

Herrera also contests the inclusion of $16,105 for the District’s 

investigative audit costs. This court has not specifically addressed whether 

investigative audit expenses are recoverable under the MVRA. Herrera 

presents three lines of argument on this point. We address each individually, 

but point out that even if investigative audit expenses did not fall within the 

ambit of the MVRA, Herrera’s plea agreement clearly encompasses such costs 

as “arising from all relevant conduct, not limited to that arising from the 

offense of conviction alone.”

Even absent a plea agreement, the MVRA appears to cover such costs as 

“other expenses incurred during participation in the investigation or 

prosecution of the offense or attendance at proceedings related to the offense.” 

§ 3663A(b)(4).2 Herrera argues that the District’s investigative audit expenses 

do not fall under this provision because the District incurred the costs before 

deciding to pursue criminal charges. We disagree.

The District’s reliance on external auditing services was necessary in the 

wake of Herrera’s fraud. Given that the District utilized a one-person office, 

and Herrera herself was the sole employee, the increase in audit and 

accounting costs was a direct and inevitable result of her crimes. Further, the 

investigative audit in this case was a fundamental component of the District’s 

investigation of Herrera’s criminal activity. 3 After discovering the discrepancy 

2 In a case that directly confronts the issue, the Seventh Circuit determined that 

restitution for investigation costs was proper because “[t]he bank’s investigation was clearly 

an important part of ‘the investigation . . . of the offense’ [because it] led to the determination 

of the actual amount embezzled, and therefore the costs of that investigation may be included 

in the restitution award under § 3663A(b)(4).” United States v. Hosking, 567 F.3d 329, 332 

(7th Cir. 2009) (internal citation omitted). Hosking is persuasive. 

3 For the same reasons, we are not persuaded by Herrera’s characterization of these 

costs as “consequential damages.”

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from 2011, the District contacted the FBI and filed a police report naming 

Herrera as an embezzlement suspect. The District incurred $8,715 in 

additional audit fees for the 2011 audit, and $7,930 in additional audit fees for 

the 2012 audit. The purpose of the investigative audits, together totaling 

$16,105, was to ferret out the extent of Herrera’s criminal activity. The 

District provided these audit reports to the Tom Green County Sheriff’s Office 

and the FBI in furtherance of the investigation. 

Herrera also contends that it was reversible error for the district court 

to adopt the PSR’s “bald recital” of the auditing costs without supporting 

documentation to justify the amount of restitution ordered. A court is not 

required to make explicit findings or provide a detailed analysis so long as the 

record provides adequate basis to support the restitution order in a manner 

that allows for effective appellate review. DeLeon, 728 F.3d at 507. Here, the 

PSR provided the amounts for the District’s routine audit expenses and 

compared that figure to the extraordinary audit expenses incurred to 

investigate the losses for 2011 and 2012. The restitution award constituted 

the difference. The duration and complexity of Herrera’s fraud provide an 

adequate basis to support the district court’s inclusion of these costs in the 

restitution order.

C. Unemployment Insurance Costs 

Herrera contests the inclusion of $4,130.40 restitution for 

unemployment benefits she received after her termination. Herrera asserts a 

variety of arguments on this point, but wholly fails to provide any legal 

analysis and cites no authority in support of her allegations. She merely 

asserts that inclusion was improper for “many of the same reasons already 

discussed,” yet she provides no explanation of which reasons she refers to or 

how they apply to this particular claim. Thus, Herrera has abandoned her 

challenge to the award for the unemployment benefit expenses by inadequately 

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briefing the issue. See United States v. Ballard, 779 F.2d 287, 295 (5th Cir. 

1986) (finding that a party who “offer[s] only a bare listing of alleged [errors],

without citing supporting authorities or references to the record” abandons 

those claims on appeal), cert. denied, 475 U.S. 1109 (1986).

Accordingly, we AFFIRM the district court’s judgment of restitution.

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