### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-10050 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. TOMMY DALE DANIEL, Defendant - Appellant

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:07-CR-142-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Tommy Dale Daniel appeals h is conviction and sentence for t wo counts of possession of child pornography. His first of two contentions c o ncerns the denial of his motion to s uppress. He claims: the e-mail he s ent to a local television reporter, which supported the original search warran t , did not violate either statute cited in the search-warrant affidavit; and, the affidavit improperly relied
upon the television reporter’s unreasonable subjective fear. For these reasons, he contends the sea r c h -warrant affidavit failed to establish p robable cause, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 10, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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invalidating the searches o f his computer that resulted in the discovery of child pornography. Our court employs a two-step p r ocess for reviewing the denial of a motion to suppress where a search warrant is involved. U nited States v. Froman , 355 F.3d 882, 888 (5th Cir. 2004). “First, we determine w h e ther t he good-faith exception to the e xclusionary r u l e applies.” Id. (internal quotation marks omitted). If it applies, the decision not to suppress must be affirmed. Id. Only if the exception d oes not apply do we proceed t o the s ec o n d step, determining whether there was a substantial basis for finding probable cause. Id. Applying this two-step process, the district court ruled that the good-faith exception to t he e xclusionary r ule applied. Accordingly, it did not reach whether there w as a substan t i a l basis for the m agistrate judge to find probable cause. On appeal, Daniel c hallenges only proba b le cause; he does not challenge the district court’s determination that the good-faith exception to the exclusionary

r u l e applied. As Daniel does not address the district court’s rationale f or d enying the motion to suppress, he has w aived any contention h e could hav e raised to the denial o f the motion t o suppress. E.g. , United States v. Reagan , 596 F.3d 251, 254-55 (5th Cir. 2010). D a ni e l ’ s s e c o n d c o nt e ntion concerns the awarded r estitution. H e c o nt e n d s : the court abused its discretion in awarding $150,000 to L.S., a minor c h ild whose

ab u s e w a s depicted in child pornography possessed by Daniel; r e s tit u ti o n a w a r d s under 18 U.S.C. § 2259 are limited to losses caused b y the offense of conviction, and the evidence showed his offense conduct did not cause L.S.’ losses; and, at most, the r e s tit u ti on award s hould have been limited to the nominal incremental loss to L.S. that resulted f rom his offense conduct. Al t e r n atively, h e contends that, if the evidence established his offense conduct was a but-for c ause of L.S.’ damages, § 2259 still requires that the evidence show his offense c o n duct proximately caused the damages.

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In an en banc decision subsequent to the briefing in this a p p eal, the restitution issues presented h e r e were resolved against the p ositions taken by Daniel. In re Amy Unknown , 701 F.3d 749, 759-74 ( 5 t h C i r . 2 0 12) (en banc), petition f

or cert. filed (Jan. 13, 2013) (No. 12-8505). In Amy Unknown , our court held: t he phrase “as a proximate result o f the offense” a pplies only to 18 U.S.C. § 2259(b)(3)(F) (providing mandatory restitution for “any other losses s uffered by t he victim a s a proximate result of the o ffense”); and there was n o proximatecause limitation to the remainder of § 2259(b)(3) (listing s pecific t ypes of loss for which restitut i o n is mandated). Id. at 7 52. O ur court further held childpornography victims should receive restitution a wards f or the f ull amount of their l o sses against each defendant convicted of possessing their images. Id. at 773-74. Accordingly, any error i n the restitution award w a s in Daniel’s favor. See i d. at 774. The Government, however, has n ot challenged the award; nor has L.S. filed a mandamus petition challe n g i ng it. Therefore, we must uphold the award. See id. AFFIRMED.

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