United States v. Munoz ( 2023 )

Case: 22-10451 Document: 00516759258 Page: 1 Date Filed: 05/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 22, 2023
No. 22-10451
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Felicia Munoz,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:21-CR-43
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Our prior panel opinion, United States v. Munoz, 65 F.4th 274 (5th Cir.
2023), is WITHDRAWN. The following opinion is SUBSTITUTED:
Appellant Felicia Munoz was a caretaker for a retired Texas Depart-
ment 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
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10451
boyfriend stole hundreds of firearms, eight silencers, a wedding ring, two ten-
nis 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 sen-
tenced Munoz to 108 months’ incarceration and ordered her to pay restitu-
tion 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. Assuming arguendo
that the appeal waiver does not bar her challenge, 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 con-
tinued to decline, they hired Munoz as a caretaker.
Munoz used her employment to steal from the couple. She took pic-
tures 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 posses-
sions she had previously identified. As noted above, Munoz and Guzman
stole 130 firearms, eight silencers, a wedding ring, two tennis bracelets, ear-
rings, and two other rings. They sold many of the stolen firearms to a gun
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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 pos-
session 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 fire-
arms that Munoz and Guzman stole. For the other seventy-three, the proba-
tion 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 had died
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 heir-
looms” 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
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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 re-
placement 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 dis-
trict 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 vic-
tim, 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, ra-
ther than market value. Second, she argues that the Government failed to
prove that she proximately caused financial loss relating to the silencers. Be-
cause appeal waivers do not deprive us of jurisdiction, we assume arguendo
that consideration of these claims is not precluded by the waiver, and we
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conclude that they lack merit. See United States v. Madrid, 978 F.3d 201 (5th
Cir. 2020) (holding that appeal waivers are not jurisdictional).
A
We consider de novo the legality of a restitution award and the method
used to calculate loss. See United States v. Isiwele, 635 F.3d 196, 202 (5th Cir.
2011). But we review the factual findings supporting the restitution order for
clear error. See United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012).
As an initial matter, we perceive no clear error in the district court’s
determination that R.R. and K.R.’s gun collection was unique in nature. The
district court considered the question at length, ultimately concluding that
“the firearms here held unique, intangible, and sentimental value to the vic-
tim.” We cannot say that this finding leaves us with the “definite and firm
conviction that a mistake has been committed.” Sharma, 703 F.3d at 322.
With that holding in mind, we conclude that the district court did not
err in choosing to use the guns’ replacement values to calculate the amount
of restitution. This court and several other circuits have recognized that the
MVRA is silent on how restitution is to be calculated, and “contemplate[s]
the exercise of discretion by sentencing courts in determining the measure of
value appropriate to restitution calculation in a given case.” United States v.
Gunselman, 643 F. Appx. 348, 356 (5th Cir. 2016) (quoting United States v.
Boccagna, 450 F.3d 107, 114 (2d Cir. 2006)). Although the fair market value
of property will ordinarily compensate a victim for his or her loss, that metric
may at times “inadequately measure” the relevant harm. Id. (quoting
U.S.S.G. § 2B1.1 cmt. n.3(C)(i)). In such a case, replacement cost may be
“best suited to make [the] victims whole.” Id. (collecting cases). Having
properly determined that the firearm collection was unique, the district court
committed no legal error in calculating the amount of restitution by using the
replacement value instead of the fair market value.
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B
We now turn to the question whether the Government proved that
Munoz proximately caused S.R. to lose the value of the silencers that S.R.
elected to abandon rather than pursue in probate proceedings. At the outset,
however, we emphasize that Munoz did not raise this objection in the district
court. In fact, the record is devoid of any objection to including the silencers
in the restitution calculation. Thus, we review for plain error only. United
States v. Melendez, 57 F.4th 505, 507 (5th Cir. 2023).1
To demonstrate plain error, Munoz must show “(1) the district court
erred; (2) the error was clear and obvious; and (3) the error affected [her]
substantial rights.” Id. (quoting United States v. Vargas, 21 F.4th 332, 334
(5th Cir. 2021)). And even then, we have discretion to decline to correct the
error if our doing so would not “seriously affect the fairness, integrity, or
public reputation of the proceeding.” Id. (quoting Vargas, 21 F.4th at 334).
Assuming arguendo that the district court erred, we cannot say that the
error was clear and obvious. Munoz does not dispute that she stole the eight
silencers, or that her actions put S.R. in a position to choose whether to aban-
don them or initiate probate proceedings to claim them. Instead, Munoz ar-
gues that S.R.’s actions sever the chain of causation with respect to Munoz’s
stealing the silencers, or at least sufficiently dilutes it such that she cannot be
said to have proximately caused S.R.’s loss. The Government responds that
it would be impracticable for S.R. to claim the silencers. Gov. Br. at 24–25
(quoting 18 U.S.C. § 3663A(b)(1)(B)) (the defendant must pay the value of
the property “if return of the property under subparagraph (A) is impossible,
1
The Government argued for plain-error review for this issue in its brief. Munoz
neither addressed this topic in her opening brief nor filed a reply brief. As such, it is un-
contested that this standard of review applies.
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impracticable, or inadequate”). Assuming the Government failed to carry its
burden to prove that Munoz proximately caused harm relating to the silenc-
ers, and assuming that the district court erred in including the value of the
silencers in the restitution calculation, we conclude that any such error was
not clear and obvious. Munoz thus fails to demonstrate plain error.
* * *
Having considered Munoz’s arguments on the merits, we conclude
that the district court did not err in ordering restitution in the amount of
$75,605.97. Accordingly, the judgment of the district court is AFFIRMED.
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