IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40779

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ARNOLDO GUTIERREZ-AVASCAL aka Armando Gutierrez-Abascal

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge: 

Having pleaded guilty to conspiring to possess marijuana with the intent

to distribute, in violation of 21 U.S.C. § 846, Arnoldo Gutierrez-Avascal contests

being required to pay restitution. Primarily at issue is whether restitution is

statutorily authorized for a conspiracy conviction under 21 U.S.C. § 846.

AFFIRMED.

I.

Gutierrez was indicted on one count of conspiring to possess marijuana

with intent to distribute, in violation of 21 U.S.C. § 846, and on one count of

possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2008

Charles R. Fulbruge III

Clerk
No. 07-40779

2

and 18 U.S.C. § 2. The indictment alleged that the conspiracy occurred on or

about 5 February 2007. Gutierrez pleaded guilty to the conspiracy count.

ThePresentence Investigation Report (PSR) recommended that Gutierrez’

base offense level was 26. It also recommended a two-level enhancement for

reckless endangerment during flight, based on Gutierrez’ 5 February attemptto

avoid apprehension by law enforcement officers. The PSR stated: Agents, while

conducting surveillance regarding suspected drug-trafficking activity, attempted

to follow a vehicle driven by Gutierrez; during the pursuit, Gutierrez—whose

vehicle contained 135.5 kilograms of marijuana—drove at approximately 50

miles per hour in a residential area during heavy traffic and failed to observe

traffic signals; and Gutierrez’ vehicle struck a vehicle occupied by Gilberto and

Flora Trevino (the Trevinos), resulting in injuries to Gilberto Trevino that were

treated at a hospital. The PSR recommended restitution of $4,062.46 for the

Trevinos. 

Gutierrez filed a memorandum opposing restitution. He contended:

restitution was not authorized by statute; and the Trevinos were not “victims”,

as defined by statute, because their losses did not arise as a result of conduct

underlying the offense of conviction. In response, the Government maintained

restitution was authorized under 18 U.S.C. § 3663 (providing for discretionary

restitution). The probation officer’s restitution recommendation, however, was

changed to recommend no restitution because of the statutes at issue. 

The court stated at sentencing that, unless persuaded otherwise by

permitted supplemental briefing, it would order restitution, overruling

Gutierrez’ objection (and not following the probation officer’s altered position).

Subsequently, as reflected in the judgment, Gutierrez was sentenced, inter alia,

to a 70-month term of imprisonment and ordered to pay $4,062.46 in restitution

to the Trevinos. 
No. 07-40779

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II.

“A federal court cannot order restitution except when authorized by

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

internal quotation marks omitted). The legality of a restitution order is

reviewed de novo. United States v. Onyiego, 286 F.3d 249, 256 (5th Cir. 2002).

If it is determined that restitution is authorized by statute, “the propriety of a

particular award [is reviewed] for an abuse of discretion”. Id. (citation and

internal quotation marks omitted). 

Regarding those standards of review, Gutierrez maintains: the district

court was not authorized by statute to order restitution; and, in the alternative,

even if authorized, the district court abused its discretion by requiring

restitution.

A.

Our first task is to determine whether restitution was authorized by

statute. Under 18 U.S.C. § 3556, “[t]he court, in imposing a sentence on a

defendant who has been found guilty of an offense shall order restitution in

accordance with section 3663A, and may order restitution in accordance with

section 3663”. (Emphasis added.) Restated, § 3556 governs restitution under

the discretionary Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663,

and the mandatory Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §

3663A. Love, 431 F.3d at 479-80. The district court did not identify the

statutory basis for its restitution award.

Simply stated, restitution was not authorized under the MVRA. The

Government contends restitution, instead, was permissible under the VWPA,

which provides the district court with authority to order that a defendant

convicted of certain offenses provide restitution to the victim. 18 U.S.C. §

3663(a)(1)(A). The list of offenses for which restitution may be ordered under the

VWPA includes “an offense under this title, section 401, 408(a), 409, 416, 420,
No. 07-40779

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or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861,

863)”. Id. A “victim” for VWPA purposes is defined as “a person directly and

proximately harmed as a result of the commission of an offense for which

restitution may be ordered”. 18 U.S.C. § 3663(a)(2).

As Gutierrez correctly notes, 21 U.S.C. § 846 (drug conspiracy),the statute

under which he was convicted, is not among the enumerated offenses for which

restitution is authorized under the VWPA. 18 U.S.C. § 3663(a)(1)(A). Gutierrez

contends, therefore, that the district court lacked authority to order restitution

under the VWPA. The Government, however, maintains restitution is

authorized by the VWPA because, although not enumerated in the restitution

statute, the statute of conviction (§ 846) provides: “Any person who attempts or

conspires to commit any offense defined in this subchapter shall be subjectto the

same penalties as those prescribed for the offense”. 21 U.S.C. § 846 (emphasis

added). The object of Gutierrez’ conspiracy—possession of a controlled substance

with the intent to distribute—is criminalized under 21 U.S.C. § 841, a provision

that is one of the enumerated offenses under the VWPA. See 18 U.S.C. §

3663(a)(1)(A). The Government contends, therefore, that the VWPA authorizes

restitution in this case, citing United States v. Daniel, 14 F. App’x 355, 365 (6th

Cir. 2001) (unpublished).

Relying on tools of statutory interpretation and legislative history,

Gutierrez characterizes as “overly simplistic” and erroneous the Government’s

rationale, as well as that of the Sixth Circuit in the above-referenced

unpublished opinion. We disagree. The language of § 846 is clear: those

convicted of a conspiracy are subject to the same punishment as the target of

that conspiracy. It is undisputed that a district court, in its discretion, has the

authority under the VWPA to order a defendant convicted under § 841 to pay

restitution. The same authority exists, under the express terms of § 846, against
No. 07-40779

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those who conspire to commit that crime. We need not look beyond this plain

language to conclude that the VWPA authorizes restitution in this case.

B.

Alternatively, Gutierrez contends: even if restitution is authorized for an

offense under § 846, the restitution order constitutes an abuse of discretion

because the losses suffered by the Trevinos fall outside the parameters of an

offense under § 846 and are “too attenuated from the offense of conviction to

support a restitution order”. We again disagree.

The VWPA authorizes the district court to order that the defendant

provide restitution to “any person directly harmed by the defendant’s criminal

conduct in the course of [an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity]”. 18 U.S.C. § 3663(a)(2). Our court

has held: “[W]here a fraudulent scheme is an element of the conviction, the

court may award restitution for ‘actions pursuant to that scheme’”. United

States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002) (quoting United States v.

Stouffer, 986 F.2d 916, 928 (5th Cir. 1993)). 

Gutierrez was engaged in activity in furtherance of the marijuana

conspiracy charged in the indictment when the vehicle he was driving collided

with the Trevinos’ vehicle. The collision occurred on 5 February 2007, the date

alleged in the conspiracy count of the indictment, when Gutierrez, aided by

another person, attempted to flee from pursuing law enforcement officers. In

this regard, as the Agents pursued Gutierrez, a second vehicle pulled in front of

the Agents in an attempt both to slow them down and block them from following

Gutierrez. The vehicle driven by Gutierrez contained 135.5 kilograms of

marijuana, a quantity corresponding to the allegations of the conspiracy count

of the indictment. As stated, in attempting to flee, he collided with the Trevinos’

vehicle. 
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We hold, therefore, that the restitution order was not an abuse of

discretion because the Trevinos were “directly harmed by [Gutierrez’] criminal

conduct in the course of the . . . conspiracy”. 18 U.S.C. § 3663(a)(2).

III.

For the foregoing reasons, the judgment is AFFIRMED.