IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10050

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

TOMMY DALE DANIEL,

Defendant - Appellant

Appeal from the United States District Court

for 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 his conviction and sentence for two counts of

possession of child pornography. His first of two contentions concerns the denial

of his motion to suppress. He claims: the e-mail he sent to a local television

reporter, which supported the original search warrant, 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 search-warrant affidavit failed to establish probable cause,

United States Court of Appeals

Fifth Circuit

F I L E D

April 10, 2013

Lyle W. Cayce

Clerk

* 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.

 Case: 11-10050 Document: 00512204221 Page: 1 Date Filed: 04/10/2013
No. 11-10050

invalidating the searches of his computer that resulted in the discovery of child

pornography. 

Our court employs a two-step process for reviewing the denial of a motion

to suppress where a search warrant is involved. United States v. Froman, 355

F.3d 882, 888 (5th Cir. 2004). “First, we determine whether the good-faith

exception to the exclusionary rule applies.” Id. (internal quotation marks

omitted). If it applies, the decision not to suppress must be affirmed. Id. Only

if the exception does not apply do we proceed to the second 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 the exclusionary rule applied. Accordingly, it did not reach whether

there was a substantial basis for the magistrate judge to find probable cause. 

On appeal, Daniel challenges only probable cause; he does not challenge the

district court’s determination that the good-faith exception to the exclusionary

rule applied. As Daniel does not address the district court’s rationale for

denying the motion to suppress, he has waived any contention he could have

raised to the denial of the motion to suppress. E.g., United States v. Reagan, 596

F.3d 251, 254-55 (5th Cir. 2010).

Daniel’s second contention concerns the awarded restitution. He contends: 

the court abused its discretion in awarding $150,000 to L.S., a minor child whose

abuse was depicted in child pornography possessed by Daniel; restitution awards

under 18 U.S.C. § 2259 are limited to losses caused by the offense of conviction,

and the evidence showed his offense conduct did not cause L.S.’ losses; and, at

most, the restitution award should have been limited to the nominal incremental

loss to L.S. that resulted from his offense conduct. Alternatively, he contends

that, if the evidence established his offense conduct was a but-for cause of L.S.’

damages, § 2259 still requires that the evidence show his offense conduct

proximately caused the damages.

2

 Case: 11-10050 Document: 00512204221 Page: 2 Date Filed: 04/10/2013
No. 11-10050

In an en banc decision subsequent to the briefing in this appeal, the

restitution issues presented here were resolved against the positions taken by

Daniel. In re Amy Unknown, 701 F.3d 749, 759-74 (5th Cir. 2012) (en banc),

petition for cert. filed (Jan. 13, 2013) (No. 12-8505). In Amy Unknown, our court

held: the phrase “as a proximate result of the offense” applies only to 18 U.S.C.

§ 2259(b)(3)(F) (providing mandatory restitution for “any other losses suffered

by the victim as a proximate result of the offense”); and there was no proximatecause limitation to the remainder of § 2259(b)(3) (listing specific types of loss for

which restitution is mandated). Id. at 752. Our court further held childpornography victims should receive restitution awards for the full amount of

their losses against each defendant convicted of possessing their images. Id. at

773-74. Accordingly, any error in the restitution award was in Daniel’s favor. 

See id. at 774. The Government, however, has not challenged the award; nor has

L.S. filed a mandamus petition challenging it. Therefore, we must uphold the

award. See id.

AFFIRMED.

3

 Case: 11-10050 Document: 00512204221 Page: 3 Date Filed: 04/10/2013