United States v. Juan Cortinas

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 22, 2018
• Docket: 17-40530
• Status: Unpublished

Opinion

Case: 17-40530 Document: 00514398449 Page: 1 Date Filed: 03/22/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-40530 FILED Summary Calendar March 22, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN CAMILO CORTINAS,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:16-CR-11-3

Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Juan Camilo Cortinas appeals the district court’s order that he pay $157,525.57 in restitution in connection with his guilty plea convictions for conspiring to knowingly or recklessly transport within the United States an alien who has come to, entered, or remained in the United States in violation of law, see 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I), and for knowingly or recklessly transporting within the United States, for private financial gain, an alien who

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-40530 Document: 00514398449 Page: 2 Date Filed: 03/22/2018

No. 17-40530

has come to, entered, or remained in the United States in violation of law, see id. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), and (a)(1)(B)(i). We agree with both par- ties that the restitution order lacked a statutory basis and therefore cannot stand. See United States v. Westbrooks, 858 F.3d 317, 327 (5th Cir. 2017), peti- tion for cert. filed (July 10, 2017) (No. 17-5112). “A federal court cannot order restitution ‘except when authorized by stat- ute.’” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005) (quoting United States v. Bok, 156 F.3d 157, 166 (2d Cir. 1998)). “There are two sources of stat- utory authority” for restitution. Id. The first source is 18 U.S.C. § 3556. But that section pertains only to restitution under 18 U.S.C. §§ 3663 and 3663A, neither of which justify the restitution order here. The second source is 18 U.S.C. § 3583, which deals with restitution in connection with a term of super- vised release. See Westbrooks, 858 F.3d at 327–28; Love, 431 F.3d at 479–80. But as both parties again agree, the sentencing transcript and judgment in this make clear that the district court imposed the restitution order as part of Cortinas’s sentence, not as part of his supervised release. The restitution order therefore exceeded the district court’s statutory authority and “should be cor- rected on plain error review.” Westbrooks, 858 F.3d at 327. We sometimes vacate the entire sentence when an order of restitution is vacated and sometimes vacate only the restitution order, leaving “in place a term of imprisonment that was also included in the sentence.” United States v. Espinoza, 677 F.3d 730, 734–35 (5th Cir. 2012). In this case, however, Cortinas urges no “other error in the sentencing process,” id. at 735, and he asks that we vacate and remand only the restitution component of the sentence. We therefore VACATE only the restitution component of the sentence and RE- MAND for further proceedings in order that the district court may consider the

2 Case: 17-40530 Document: 00514398449 Page: 3 Date Filed: 03/22/2018

limited question whether to impose restitution as a condition of supervised re- lease. See id.; see also Westbrooks, 858 F.3d at 328; United States v. Dahlstrom, 180 F.3d 677, 686 (5th Cir. 1999).