United States v. Munoz

65 F.4th 274

UNITED STATES of America, Plaintiff—Appellee, v. Felicia MUNOZ, Defendant—Appellant.

No. 22-10451

Summary Calendar

United States Court of Appeals, Fifth Circuit

FILED April 17, 2023

Appeal from the United States District Court for the Northern District of Texas, USDC No. 1:21-CR-43, James Wesley Hendrix, U.S. District Judge

Amber Michelle Grand, Attorney, Brian W. McKay, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff—Appellee.

Camille M. Knight, Law Office of Camille M. Knight, Dallas, TX, for Defendant—Appellant.

Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

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 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. We agree with Munoz that her appeal waiver does not prevent us from considering the merits of her appeal. But 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. All told, 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 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 passed 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 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. The Government moved to dismiss, asserting that Munoz's appeal waiver barred her from pursuing the two arguments described above. The motion was denied, but the Government maintains its position at the merits stage.

A

We first consider whether Munoz's appeal waiver applies in these circumstances. As an initial matter, it is clear that the right to appeal is statutory in nature and can be waived. United States v. Meredith, 52 F.4th 984, 986 (5th Cir. 2022). In assessing whether an appeal waiver executed in connection with a plea agreement applies to a particular appeal, we ask if "the waiver was knowing and voluntary," United States v. Alfred, 60 F.4th 979, 981-82 (5th Cir. 2023), and if it "applies to the circumstances at hand, based on the plain language of the agreement." Id. at 982 (quoting United States v. Purser, 747 F.3d 284, 289 n.10 (5th Cir. 2014)). Munoz does not dispute that her waiver was knowing and voluntary. Instead, she argues that her plea agreement does not apply to the issues she raises here. As in many plea agreements, Munoz reserved the right to appeal a sentence in excess of the statutory maximum. The question, then, is whether the substance of Munoz's issues challenge the restitution order as exceeding the statutory maximum.¹

This court's precedents recognize several ways in which a restitution order can exceed the statutory maximum. Among other things, such an order cannot exceed the victim's loss. See, e.g., United States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752 (5th Cir. 2012). Also, the Government bears the burden to prove that the defendant's conduct proximately caused the victim damages in the amount provided by the restitution award. See, e.g., United States v. Winchel, 896 F.3d 387, 389 (5th Cir. 2018).

Munoz's challenges are consistent with these limited exceptions to her appeal waiver. First, she contests the district court's finding that the firearms she stole are unique, and therefore warrant the use of replacement value to calculate the restitution award. This objection goes to the amount of the loss Munoz caused R.R. and K.R., and in turn caused S.R. If Munoz is correct, the Government's evidence does not show that she proximately caused damages in the amount of $75,605.97. Said another way, if R.R. and K.R.'s firearm collection is not unique in nature, a restitution award of $75,605.97 would exceed the victims' loss. Whether it be six of one or half a dozen of the other, such an award would violate the statutory maximum. See Winchel, 896 F.3d at 389; Chem. & Metal Indus., Inc., 677 F.3d at 752. The same is true of the argument that Munoz did not proximately cause S.R. to lose the value of the eight silencers. See Kim, 988 F.3d at 812.

To be sure, not every disagreement about the methods used to calculate restitution will allow a criminal defendant to avoid her appeal waiver. As this court has recognized, an appeal waiver may not be circumvented merely because a defendant invokes the magic words "in excess of the statutory maximum." See Meredith, 52 F.4th at 987 (explaining that a criminal defendant may not "use the statutory-maximum boilerplate as an appeal-authorizing escape hatch"). For that reason, we have rejected arguments that in substance merely disagreed with the district court's...