United States v. Fults

71 F.4th 328

Opinion

Case: 22-50808 Document: 00516791809 Page: 1 Date Filed: 06/19/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-50808 FILED June 19, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Christopher Teon Fults,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 6:19-CR-262-2 ______________________________

Before Jones, Haynes, and Oldham, Circuit Judges. Per Curiam: The attorney appointed to represent Christopher Teon Fults has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Fults has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review and will therefore grant the motion to withdraw. Case: 22-50808 Document: 00516791809 Page: 2 Date Filed: 06/19/2023

No. 22-50808

There is, however, an issue with the restitution order. Although the total amount of restitution awarded is correct, the order has apparently omitted two victims and has included their loss amounts in the amounts awarded to two other victims. In unpublished opinions, this court has held that a defendant lacks standing to challenge “any error concerning to whom the restitution is to be paid” where “no matter the ultimate recipient, [the defendant] remains liable for paying the same amount,” United States v. Berry, 795 F. App’x 229, 237 (5th Cir. 2019), and has held that such an error may be corrected under Federal Rule of Criminal Procedure 36, United States v. Crawley, 463 F. App’x 418, 420-22 (5th Cir. 2012). We adopt the conclusions of these unpublished opinions and hold that Fults’s restitution order does not present a nonfrivolous issue for appeal because he is liable for the same restitution amount regardless of the ultimate recipients. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2. We REMAND for the limited purpose of correction of the judgment concerning the designation of the restitution payees and the allocation of restitution among the payees. See Fed. R. Crim. P. 36.