United States v. Madrid

United States Court of Appeals
for the Fifth Circuit

No. 19-50999

United States of America,

Plaintiff—Appellee,

versus

Efren Madrid, Jr.,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-73-1

Before Graves, Costa, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Efren Madrid, Jr. (“Madrid”) pleaded guilty to conspiracy to possess
child pornography. The district court sentenced Madrid to 70 months of
imprisonment and ten years of supervised release. In addition, the court
imposed a $25,000 fine, a $100 mandatory special assessment, a $5,000
special assessment under the Justice for Victims of Trafficking Act of 2015
(“JVTA”), and a $5,000 assessment under the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018 (“AVAA”). Madrid appeals his
sentence, arguing that the district court erroneously assessed him a monetary
penalty under the AVAA, erroneously appears to have imposed two JVTA
United States Court of Appeals
Fifth Circuit
FILED
October 15, 2020

Lyle W. Cayce
Clerk
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special assessments, and erroneously believed the Bureau of Prisons would
give him credit for time incarcerated on state charges prior to going into
federal custody. We AFFIRM.
I.
Madrid was initially charged in a two-count indictment with
possession with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and counterfeiting, in violation of 18
U.S.C. § 472. Madrid later pled guilty pursuant to a plea agreement, to a
superseding information charging him with possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5). The district court sentenced Madrid
to 70 months of imprisonment and ten years of supervised release. In
addition, the court imposed a $25,000 fine, a $100 mandatory special
assessment, a $5,000 special assessment under the JVTA, and a $5,000
assessment under the AVAA. Id.
Madrid now appeals, arguing that: (1) the district court erred in
assessing a $5,000 monetary penalty under the AVAA in the belief that the
AVAA is a freestanding special assessment; (2) the district court improperly
imposed two special assessments, contradicting an oral announcement; and
(3) the district court failed to adjust Madrid’s sentence after erroneously
believing the Bureau of Prisons would give him credit for time incarcerated
on state charges prior to going into federal custody.
II.
This court reviews de novo whether an appeal waiver bars an appeal.
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). To determine the
validity of the appeal waiver, “this court considers whether the waiver was
knowing and voluntary and whether, under the plain language of the plea
agreement, the waiver applies to the circumstances at issue.” Id. In doing so,
we employ “ordinary principles of contract interpretation, construing
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waivers narrowly and against the Government.” Id. We usually employ a
two-step inquiry, asking: (1) “whether the waiver was knowing and
voluntary” and (2) “whether, under the plain language of the plea
agreement, the waiver applies to the circumstances at issue.” Id. In this case,
however, neither party contests the knowing and voluntary nature of the
waiver. We proceed to step two—whether the waiver bars the present appeal.
The parties disagree whether Madrid’s plea agreement bars this
appeal. The Government argues that the appellate waiver should be
enforced, but Madrid contends that the waiver-of-appeal provision is not
applicable because a statutory-maximum exception occurred. Madrid argues
that the district court erred when it assessed a monetary penalty under the
AVAA because “the Government failed to establish the identity and losses
of any ‘victims’ of the offense of conviction,” and as such, his situation
comes within the purview of United States v. Winchel, 896 F.3d 387, 389 (5th
Cir. 2018) (“[I]f a court orders a defendant to pay restitution...without
determining that the defendant’s conduct proximately caused the victim’s
claimed losses, the amount of restitution necessarily exceeds the statutory
maximum.”). We disagree.
The written and signed plea agreement included a waiver-of-appeal
provision containing the following language:
By entering into this Agreement, and as a term of this
Agreement, I voluntarily and knowingly waive the right to
appeal the sentence on any ground, including but not limited to
any challenges to the determination of any period of
confinement, monetary penalty or obligation, term of
supervision and conditions thereof, and including any appeal
right conferred by 18 U.S.C. § 3742.
(emphasis added) Madrid did not object to the $5,000.00 AVAA special
assessment in the district court.
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The waiver of appeal had two only exceptions: “ineffective assistance
of counsel or prosecutorial misconduct of constitutional dimension of which
Appellant did not have knowledge of at the time of sentencing.” As part of
the plea agreement, the Government dismissed the two counts from the
original indictment, which exposed Madrid to 20 additional years in custody
and a minimum sentence of five years, and recommended a full three-level
reduction for acceptance of responsibility.
The court confirmed that Madrid read, reviewed with his counsel, and
understood the terms of the plea agreement, including the appeal waiver
provision and that the other charges that would be dropped. Before signing
the plea agreement, Madrid confirmed that he entered into the agreement
voluntarily, and that he wanted the court to accept the plea agreement.
Further, the district court advised Madrid that he had the right to appeal and
that pursuant to the plea agreement, he was giving up his right to appeal
except in limited circumstances. Madrid expressed a clear understanding of
his right to appeal and agreed to that waiver.
Further, the plea agreement addressed terms regarding restitution
and special assessments, and Madrid expressed a clear understanding of his
right to appeal and agreed to that waiver. This court has held that a defendant
will be held to the bargain to which he agreed, regardless of whether the court
specifically admonished him concerning the waiver of an appeal. United
States v. Alvarado-Casas, 715 F.3d 945, 955 (5th Cir. 2013). We consider “the
parties’ intent at the time the agreement was executed, as determined from
the language of the contract and the surrounding circumstances.” United
States v. Araguz-Briones, 243 F. App’x 64, 66-67 (5th Cir. 2007). By
challenging the AVAA special assessment of which he was repeatedly
admonished, Madrid is attempting to circumvent the waiver-of-appeal
provision contained in the negotiated plea agreement.
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No question exists that Madrid’s guilty plea and appeal waiver were
knowingly and voluntarily entered. See United States v. Rivas-Lopez, 678 F.3d
353, 356-57 (5th Cir. 2012); see also Alvarado-Casas, 715 F.3d at 955. It is not
the role of the court to rewrite the terms of a plea agreement entered into
willingly and knowingly; instead, the court is only responsible for ensuring
that freely negotiated terms of plea agreements are enforced. United States v.
Johnson, 132 F.3d 628 (11th Cir. 1998).
Here, Madrid agreed to the terms of his plea agreement, and waived
his right to appeal. A monetary penalty under the AVAA is separate and
distinct from restitution, and a special assessment under 18 U.S.C. § 2259A
does not require identification of a victim and proof of losses. The facts of
this case are distinguishable from Winchel, and as a result, Madrid fails to
demonstrate that the district court ordered an assessment in excess of
statutory authority.
Lastly, in addition to his challenge to the AVAA assessment, Madrid
argues that the written judgment incorrectly imposes two JVTA assessments
and that the Bureau of Prisons is not giving him the credit toward his sentence
that the district court intended him to have. We find these arguments lack
merit. Because Madrid does not argue that either issue falls outside the scope
of his appeal waiver, we decline to consider them and dismiss the appeal with
respect to those two issues. See United States v. Williams, 949 F.3d 237, 239-
40 (5th Cir. 2020).
Moreover, though the waiver applies in Madrid’s case, we recognize
that an appeal waiver does not deprive us of jurisdiction. United States v.
Story, 439 F.3d 226, 230 (5th Cir. 2006). Because we can also affirm the
judgment on the merits, we choose to go further, affirming with additional
alternative reasons. See United States v. Smith, 528 F.3d 423, 424 (5th Cir.
2008).
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III.
This court has found that appeals challenging restitution orders are
analogous to appeals challenging special assessments. See United States v.
Graves, 908 F.3d 137, 140 (5th Cir. 2018). Both types of appeals “turn on
whether a statute authorizes the district court to demand money from the
defendant—and hence whether the district court exceeded the ‘statutory
maximum’ in doing so.” Id. The special assessment at issue in this appeal is
required by 18 U.S.C. § 2259A, which provides that “[i]n addition to any
other criminal penalty, restitution, or special assessment authorized by law,
the court shall assess—(1) not more than $17,000 on any person convicted of
an offense under section 2252(a)(4) or 2252A(a)(5).” Section 2259A was
created as a part of the AVAA in response to issues identified by Chief Justice
Roberts and Justice Sotomayor in calculating the losses of a victim in child
pornography cases. See Paroline v. United States. 572 U.S. 434, 472-473
(2014).
Madrid is correct that the AVAA did not “relieve the Government of
its burden to establish ‘the defendant’s relative role in the causal process’”
with respect to restitution under Section 2259. Madrid is incorrect, however,
when he suggests that the Government must offer such proof when the court
imposes a special assessment under Section 2259A. It does not require great
perspicacity to appreciate the substantial difference between restitution to
the person victimized by the crime and a special assessment, mandated by
statute and collectible by the Government against individuals convicted of
crimes to be paid into a crime victims fund.
After the enactment of the AVAA, there are several distinct,
independent financial consequences that may be imposed, and in some cases
must be imposed, on individuals convicted of child pornography offenses. See
18 U.S.C. §§ 3013, 3014, 2259, and 2259A. See also 18 U.S.C. 2259A(d)(2)
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(specifying the order in which the financial obligations should be discharged).
Restitution may be imposed if the Government offers adequate proof of
causation and losses incurred by an identified victim, but a special assessment
is imposed in the same manner as a fine and does not require the
identification of any individual victim. Special assessments paid pursuant to
Section 2259A do not go to a specific victim, but rather are deposited and
pooled in the “Child Pornography Victims Reserve” established in 18 U.S.C.
§ 2259B. Restitution under 18 U.S.C. § 2259 requires identification of a
victim and proof of losses, but a special assessment under 18 U.S.C. § 2259A
does not. The district court did not err in assessing a monetary penalty under
the AVAA. Because a monetary penalty under the AVAA is separate and
distinct from restitution, and a special assessment under 18 U.S.C. § 2259A
does not require identification of a victim and proof of losses, the district
court did not err in assessing a monetary penalty under the AVAA.
IV.
The Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a),
requires a mandatory assessment of $5,000 for any non-indigent person
convicted of this offense. Congress has stated that the obligation to pay the
assessment continues for 20 years after the release from imprisonment or the
entry of judgment, whichever is later. 18 U.S.C. §§ 3014(g), 3613(b). The
court may consider the defendant's financial circumstances now and in the
future. See, e.g., United States v. Shepherd, 922 F.3d 753, 759 (6th Cir. 2019);
Graves, 908 F.3d at 141; United States v. Kelley, 861 F.3d 790, 801 (8th Cir.
2017). Because Madrid is not indigent, this assessment must be imposed.
Madrid asserts that the district court erred by incorrectly imposing
two JVTA special assessments. At sentencing, however, the district court
imposed one $5,000 special assessment under the JVTA. The § 3014 special
assessment is to be applied to each count of conviction. See United States v.
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Matalka, 788 F. App’x 273 (5th Cir. 2019), cert. denied, 140 S. Ct. 2701
(2020). Madrid argues, however, the written judgment appears to incorrectly
impose two JVTA special assessments.
Because Madrid did not have the opportunity at the sentencing
hearing to object to the alleged variance in the written judgment, this court
reviews his claim for abuse of discretion. United States v. Mireles, 471 F.3d 551
(5th Cir. 2006). Where there is an actual conflict between the district court’s
oral pronouncement of sentence and the written judgment, the terms of the
oral pronouncement control. United States v. Wheeler, 322 F.3d 823, 828 (5th
Cir. 2003); United States v. Shaw, 920 F.2d 1225, 1231 (5th Circ. 1991). The
key determination is whether the discrepancy between the oral
pronouncement and the written judgment is a conflict or merely an ambiguity
that can be resolved by reviewing the rest of the record. Mireles, 471 F.3d at
55. The actual intention of the sentencing judge is to be ascertained both by
what he or she said from the bench and by the terms of the entire record,
including the written order he or she signed, or from their total acts.
Schurmann v. United States, 658 F.2d 389, 391 (5th Cir. 1981) (quoting Scott
v. United States, 434 F.2d 11, 20 (5th Cir. 1970)).
Here, no discrepancy or ambiguity exists. During sentencing, the
district court orally pronounced a $5,000 special assessment under the
JVTA. Madrid contends that the written judgment conflicts with the oral
pronouncement of the special assessment under the JVTA by appearing to
impose two assessments, but Madrid misreads the judgment.
The “Criminal Monetary Penalties/Schedule” section of the
judgment sets out Madrid’s $100 special assessment, $25,000 fine, $5,000
AVAA special assessment, and $5,000 JVTA special assessment. In addition
to the total criminal monetary penalties imposed, the court gives further
detail for the penalties, including to whom the special assessment is paid, the
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payment schedule for the fine, and under what statutory obligation the
mandatory JVTA assessment is ordered. The JVTA special assessment and
the “Domestic Trafficking Victim’s Assessment” are one and the same. See
18 U.S.C. § 3014. The JVTA special assessment is used to fund the Domestic
Trafficking Victims Fund. 18 U.S.C. § 3014(c). The court did not impose two
$5,000 assessments under the JVTA.
No discrepancy exists between the orally pronounced special
assessment and the written judgment. Because there is no conflict,
modification of the sentence is not warranted. See United States v. Vega, 332
F.3d 849, 854 (5th Cir. 2003).
V.
Lastly, Madrid argues that the district court failed to sentence him in
a format that achieved its intent to give him credit for his time spent in state
custody and erroneously believed the Bureau of Prisons would give him
credit for this time served. United States v. Jenkins, 38 F.3d 1143, 1144 (10th
Cir. 1994) (holding that a district court does not have jurisdictional authority
to grant credit for time served). Madrid argues that the district court could
have accomplished this goal by instead deviating downward from Madrid’s
Guidelines range, as his counsel suggested. See U.S. Sentencing Guidelines
Manual § 5G1.3 (2016); see also United States v. Jones, 811 F. App’x 872, 873
(5th Cir. 2020). Because Madrid failed to timely object to the district court’s
orally pronounced sentence and order of credit for time served, we review his
argument about his sentence’s format for plain error. Puckett v. United States,
556 U.S. 129, 135 (2009).
Madrid was originally arrested by the Andrews Police Department on
drug trafficking charges, and was detained in state custody. After executing a
warrant, and subsequently discovering firearms, controlled substances, and
counterfeit currency, the case took an unexpected turn when child
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pornography was discovered on Madrid’s computer. As a result, a federal
investigation was launched. The state charges were dismissed with prejudice
and Madrid was charged federally for drug trafficking and possession of
counterfeit currency. The Government later issued a superseding
information charging Madrid with possession of child pornography, and
agreed to drop the earlier charges of drug trafficking and counterfeiting as
part of the plea agreement.
The U.S. Probation Office prepared the presentence report, and
Madrid was not held accountable for any of the original charges involving
drug trafficking, counterfeit currency, or firearms. The guideline calculations
in the presentence report were adopted by the court, including the relevant
conduct. At sentencing, Madrid asked the district court for a variance or
sentence at the lower end of the guidelines because he spent time in state
custody, and that is “not something the Bureau of Prisons would consider in
determining his sentence.” After the Government clarified that Madrid had
not been in state custody for possession of child pornography, the charge to
which he was pleading guilty, the court denied the motion for variance and
expressly declined to depart from the advisory guidelines range.
The record shows that the district court was aware of its authority to
consider various factors, including Madrid’s time in state custody, when
determining the sentence. While time in state custody may be one factor a
court may consider when fashioning a sentence, see United States v. Barrera–
Saucedo, 385 F.3d 533, 537 (5th Cir. 2004), time-served credit may not be
awarded by a district court at sentencing. United States v. Wilson, 503 U.S.
329, 333 (1992); Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003). The
record shows the district court was aware that it lacked authority to
determine if time in state custody should be credited towards a sentence. The
district court did, however, have the authority to vary downward at
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sentencing when considering sentencing factors, but explicitly chose not to
when it denied Madrid’s motion for variance.
VI.
The district court did not err in assessing a $5,000 monetary penalty
under the AVAA, no discrepancy exists between the orally pronounced
assessment and the written judgment, and the district court did not err by
denying a downward variance for time served in state custody and imposing
a sentence within the advisory guidelines range. Accordingly, the judgment
of the district court is AFFIRMED.

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