IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30217

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JACKSON DESOUZA, also known as Jackson Rodriguez Desouza, also known 

as Juan Dicupe,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CR-123-1

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jackson Desouza pleaded guilty pursuant to a plea agreement to bank 

fraud and aggravated identity theft and was sentenced to a total of 38 months 

of imprisonment, five years of supervised release for each count, a $1000 fine, 

and restitution in the amount of $11,005.51. He argues that the restitution 

order exceeds the statutory maximum amount authorized by the Mandatory 

 

* 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

January 15, 2016

Lyle W. Cayce

Clerk

 Case: 15-30217 Document: 00513344352 Page: 1 Date Filed: 01/15/2016
No. 15-30217

2

Victim Restitution Act (MVRA) because the record does not contain sufficient 

supporting evidence. He further contends that the appeal is not barred by the 

appeal waiver in his plea agreement because it falls within the exception 

allowing an appeal of a punishment that exceeds the statutory maximum.

The plea agreement provided in pertinent part that Desouza waived his 

right to appeal his guilty plea, conviction, sentence and “any restitution 

imposed by any judge under any applicable restitution statute.” However, he 

reserved the right to appeal a punishment in excess of the statutory maximum. 

Because Desouza argues that the restitution order exceeds the statutory 

maximum amount of restitution authorized by the MVRA, that argument is 

not barred by the appeal waiver. See United States v. Chemical and Metal 

Industries, Inc, 677 F.3d 750, 752 (5th Cir. 2012); United States v. Sharma, 703 

F.3d 318, 321 n.1, 322-23 (5th Cir. 2012).

Desouza did not object to the restitution order in the district court. This 

court recently recognized the conflicting precedent on the standard of review 

in restitution cases, noting a line of cases where this court has “applied de novo 

review to a claim that a restitution order was illegal . . . even where an 

objection was not raised at sentencing.” United States v. Bevon, 602 F. App’x 

147, 151 (5th Cir. 2015) (citing, inter alia, United States v. Nolen, 472 F.3d 362, 

382 (5th Cir. 2006)). We need not resolve this issue because the restitution 

order cannot survive even plain error review.

The MVRA authorizes restitution to a victim “directly and proximately 

harmed” by a defendant’s offense of conviction. Sharma, 703 F.3d at 322 

(internal quotation marks and citation omitted). “An award of restitution 

greater than a victim’s actual loss exceeds the MVRA’s statutory maximum.” 

Id. The Government has the burden of proving the victim’s loss amount. 

United States v. De Leon, 728 F.3d 500, 506 (5th Cir. 2013).

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The Presentence Report (PSR) stated that the Government indicated the 

loss suffered by the victim was $11,005.51, and the factual basis and the PSR 

list only one specific fraudulent check in the amount of $1,000 that Desouza 

deposited into the bank account at issue. However, no evidence was cited in 

support of the Government’s figure. Because the PSR did not have an adequate 

evidentiary basis to support this amount, the district court erred in adopting

it without requiring the Government to present supporting evidence. See

United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013). Even if the plain 

error standard of review applies, the district court’s error was clear and obvious 

under this court’s precedent. See De Leon, 728 F.3d at 507-09; United States 

v. Austin, 479 F.3d 363, 373 (5th Cir. 2007). “When a defendant is ordered to 

pay restitution, in an amount greater than the loss caused, the error affects 

substantial rights as well as the fairness and integrity of the judicial 

proceeding.” Austin, 479 F.3d at 373; see also United States v. Inman, 411 F.3d 

591, 595 (5th Cir. 2005). Therefore, the district court plainly erred in ordering 

Desouza to pay restitution in the amount of $11,005.51. See Austin, 479 F.3d 

at 373; Inman, 411 F.3d at 595. Accordingly, the restitution order is vacated,

and the case is remanded for reconsideration of the appropriate amount of 

restitution based on the evidence already in the record. See Sharma, 703 F.3d 

at 327.

VACATED AND REMANDED.

 Case: 15-30217 Document: 00513344352 Page: 3 Date Filed: 01/15/2016