United States Court of Appeals

for the Fifth Circuit

No. 22-10451

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Felicia Munoz, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:21-CR-43

Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam:

*

Our prior panel opinion, United States v. Munoz, 65 F.4th 274 (5th Cir. 

2023), is WITHDRAWN. The following opinion is SUBSTITUTED: 

Appellant Felicia Munoz was a caretaker for a retired Texas Department of Public Safety trooper and his ailing wife (known pseudonymously as 

R.R. and K.R.). Over the course of Munoz’s employment, she and her 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2023

Lyle W. Cayce

Clerk

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boyfriend stole hundreds of firearms, eight silencers, a wedding ring, two tennis bracelets, earrings, and two other rings from the elderly couple. Munoz 

eventually pleaded guilty to possession of stolen firearms. 18 U.S.C. § 922(j). 

In connection with her plea agreement, she waived the right to appeal except 

as to a sentence in excess of the statutory maximum. The district court sentenced Munoz to 108 months’ incarceration and ordered her to pay restitution in the amount of $75,605.97 to compensate for the stolen firearms. She 

appealed the restitution order.

The questions presented are whether Munoz’s appeal waiver bars her 

from challenging the restitution award and, if not, whether the district court 

erred in calculating the proper amount of restitution. Assuming arguendo 

that the appeal waiver does not bar her challenge, her substantive arguments

fail. The district court committed no error in ordering restitution in the 

amount of $75,605.97. Accordingly, that judgment is AFFIRMED.

I

As introduced above, R.R. worked as a DPS trooper for his living. In 

the words of his daughter, S.R., he was an avid gun collector and their family 

often enjoyed firearm sports together. Upon R.R.’s retirement, he and K.R. 

began to need assistance in their day-to-day life. Specifically, R.R. developed 

diabetes and K.R. was diagnosed with brain cancer. When their health continued to decline, they hired Munoz as a caretaker.

Munoz used her employment to steal from the couple. She took pictures of R.R. and K.R.’s possessions and sent them to her boyfriend, Albert 

Guzman. When Munoz took the couple to doctor appointments, she would 

text Guzman to alert him that then was a good time to steal whatever possessions she had previously identified. As noted above, Munoz and Guzman 

stole 130 firearms, eight silencers, a wedding ring, two tennis bracelets, earrings, and two other rings. They sold many of the stolen firearms to a gun 

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shop in San Antonio. And they sold others “on the street.”

Law enforcement officers eventually discovered the scheme. Munoz 

was charged with possession of stolen firearms, aiding and abetting the possession of stolen firearms, and possession of unregistered firearms. She then 

entered into a plea agreement whereby she agreed to plead guilty to the first 

charge in exchange for the Government’s dropping the other two charges. 

Munoz also agreed to waive her entitlement to appeal, but reserved the right 

to, among other things, “bring a direct appeal of . . . a sentence exceeding the 

statutory maximum punishment.”

In connection with the sentencing proceedings, the probation office 

inventoried the stolen guns. Law enforcement recovered 57 of the 130 firearms that Munoz and Guzman stole. For the other seventy-three, the probation office listed the make, model, serial number, and an estimate of the value. 

R.R. and K.R. were unable to assist with the estimates because they had died

in 2021. And so the probation office relied on S.R. to approximate the value 

of each firearm. According to the pre-sentence report, S.R. calculated those 

values using R.R.’s detailed records of the firearm collection, her experience 

with firearms generally, and her familiarity with the particular guns at issue. 

She also accounted for the fact that “many of the firearms were family heirlooms” and thus irreplaceable. Relying on S.R.’s estimates, the probation 

office calculated the value of the lost firearms as $79,039.

Munoz objected to the probation office’s calculation. She introduced 

a competing estimate of the firearms’ value—conducted by James Hill, the 

owner of a gun range in Abilene. Hill offered two estimates: one using the 

retail (or replacement) price of the lost firearms, and one using the market 

value, which reflected a discounted price due to the guns’ used condition. 

He concluded that the stolen firearms were worth $70,716 according to retail

value and $52,540 according to market value. Hill candidly noted that he had 

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not examined the weapons and could not testify as to their precise condition. 

Munoz requested that the district court order restitution according to the 

discounted market value.

The Government then amended its requested restitution award in two 

respects. First, it agreed to rely on Hill’s affidavit because S.R. declined to 

testify. But it contended that the district court should use retail value instead 

of market value. This reduced the sum to $69,816. (The Government had 

recovered one additional firearm, worth $900, so it subtracted that amount 

from its request.) Second, the Government explained that S.R. had elected 

to abandon the eight silencers because she could not take possession of them 

without opening a probate proceeding and pursuing them in court. For this 

reason, the Government asserted, Munoz should pay restitution for the replacement value of the silencers, which was calculated at $5,789.97. The 

Government therefore requested a revised restitution amount of $75,605.97.

At the sentencing hearing, Munoz renewed her objection that the district court should use market value instead of replacement value to calculate 

the restitution award. (Notably, she did not object to the silencers’ inclusion 

in the calculation.) The district court overruled the objection—finding that 

“[t]he firearms here held unique, intangible, and sentimental value to the victim, so the fair market value inadequately measures the harm.” The district 

court thus ordered restitution in the amount of $75,605.97.

II

Munoz presents two issues on appeal. First, she maintains that the 

district court erred by calculating the restitution award using retail value, rather than market value. Second, she argues that the Government failed to 

prove that she proximately caused financial loss relating to the silencers. Because appeal waivers do not deprive us of jurisdiction, we assume arguendo

that consideration of these claims is not precluded by the waiver, and we 

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conclude that they lack merit. See United States v. Madrid, 978 F.3d 201 (5th 

Cir. 2020) (holding that appeal waivers are not jurisdictional).

A

We consider de novo the legality of a restitution award and the method 

used to calculate loss. See United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 

2011). But we review the factual findings supporting the restitution order for 

clear error. See United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012).

As an initial matter, we perceive no clear error in the district court’s 

determination that R.R. and K.R.’s gun collection was unique in nature. The 

district court considered the question at length, ultimately concluding that 

“the firearms here held unique, intangible, and sentimental value to the victim.” We cannot say that this finding leaves us with the “definite and firm 

conviction that a mistake has been committed.” Sharma, 703 F.3d at 322.

With that holding in mind, we conclude that the district court did not 

err in choosing to use the guns’ replacement values to calculate the amount 

of restitution. This court and several other circuits have recognized that the 

MVRA is silent on how restitution is to be calculated, and “contemplate[s] 

the exercise of discretion by sentencing courts in determining the measure of 

value appropriate to restitution calculation in a given case.” United States v. 

Gunselman, 643 F. Appx. 348, 356 (5th Cir. 2016) (quoting United States v. 

Boccagna, 450 F.3d 107, 114 (2d Cir. 2006)). Although the fair market value 

of property will ordinarily compensate a victim for his or her loss, that metric 

may at times “inadequately measure” the relevant harm. Id. (quoting 

U.S.S.G. § 2B1.1 cmt. n.3(C)(i)). In such a case, replacement cost may be 

“best suited to make [the] victims whole.” Id. (collecting cases). Having 

properly determined that the firearm collection was unique, the district court 

committed no legal error in calculating the amount of restitution by using the 

replacement value instead of the fair market value.

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B

We now turn to the question whether the Government proved that 

Munoz proximately caused S.R. to lose the value of the silencers that S.R. 

elected to abandon rather than pursue in probate proceedings. At the outset, 

however, we emphasize that Munoz did not raise this objection in the district 

court. In fact, the record is devoid of any objection to including the silencers 

in the restitution calculation. Thus, we review for plain error only. United 

States v. Melendez, 57 F.4th 505, 507 (5th Cir. 2023).1

To demonstrate plain error, Munoz must show “(1) the district court 

erred; (2) the error was clear and obvious; and (3) the error affected [her] 

substantial rights.” Id. (quoting United States v. Vargas, 21 F.4th 332, 334 

(5th Cir. 2021)). And even then, we have discretion to decline to correct the 

error if our doing so would not “seriously affect the fairness, integrity, or 

public reputation of the proceeding.” Id. (quoting Vargas, 21 F.4th at 334).

Assuming arguendothat the district court erred, we cannot say that the 

error was clear and obvious. Munoz does not dispute that she stole the eight 

silencers, or that her actions put S.R. in a position to choose whether to abandon them or initiate probate proceedings to claim them. Instead, Munoz argues that S.R.’s actions sever the chain of causation with respect to Munoz’s

stealing the silencers, or at least sufficiently dilutes it such that she cannot be 

said to have proximately caused S.R.’s loss. The Government responds that 

it would be impracticable for S.R. to claim the silencers. Gov. Br. at 24–25 

(quoting 18 U.S.C. § 3663A(b)(1)(B)) (the defendant must pay the value of 

the property “if return of the property under subparagraph (A) is impossible, 

1 The Government argued for plain-error review for this issue in its brief. Munoz 

neither addressed this topic in her opening brief nor filed a reply brief. As such, it is uncontested that this standard of review applies.

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impracticable, or inadequate”). Assuming the Government failed to carry its 

burden to prove that Munoz proximately caused harm relating to the silencers, and assuming that the district court erred in including the value of the 

silencers in the restitution calculation, we conclude that any such error was 

not clear and obvious. Munoz thus fails to demonstrate plain error.

* * *

Having considered Munoz’s arguments on the merits, we conclude 

that the district court did not err in ordering restitution in the amount of 

$75,605.97. Accordingly, the judgment of the district court is AFFIRMED.

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