Background
David Enrique Remigio pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). His plea agreement provided that the district court would order restitution of no less than $3,000 per victim.
The presentence report identified 100 series of child pornography containing known victims and listed 12 victims who requested restitution. Remigio did not object. At sentencing, the district court awarded restitution to those 12 victims and an additional $3,000 to “Audrey,” a known victim depicted in one of the series identified in the report, even though the government presented no evidence of her losses at sentencing. Remigio did not object, and the court imposed 192 months’ imprisonment, five years of supervised release, and $39,000 in restitution.
The Court’s Holding
The Eighth Circuit affirmed. Reviewing for plain error, the court was not convinced that awarding Audrey $3,000 constituted a clear or obvious error. Federal law establishes mandatory restitution of at least $3,000 per victim in these circumstances, Remigio had agreed to that minimum in his plea agreement, and he acknowledged that Audrey was a known victim depicted in a series identified in the presentence report.
The court also held that, even if the district court erred, it would not exercise its discretion to correct the error because leaving the award intact did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. The court likewise found no reversible plain error in Remigio’s procedural objections concerning 18 U.S.C. § 3664 and defense access to restitution requests.
Key Takeaways
- An unpreserved challenge to a restitution award is reviewed under the demanding plain-error standard.
- The statutory $3,000 minimum, Remigio’s plea agreement, and Audrey’s identification as a known victim supported leaving the award in place.
- Even assuming error, the Eighth Circuit concluded that the $3,000 award did not warrant discretionary correction.
Why It Matters
The decision shows that defendants who fail to object to child-pornography restitution at sentencing may struggle to obtain relief on appeal, particularly when the recipient is a known victim, Congress has prescribed a $3,000 minimum, and the plea agreement accepts that minimum.
It also illustrates that a possible evidentiary or procedural defect does not automatically justify relief under plain-error review; the defendant must also satisfy the standard governing discretionary correction of an unpreserved error.