Unreported / Non-Citable
Background
Cody Wayne Burke pleaded guilty to one count of receiving child pornography and one count of possessing child pornography. The U.S. District Court for the Southern District of Texas imposed restitution under 18 U.S.C. § 2259.
On appeal, Burke challenged the restitution orders and argued that convictions and sentences for both receipt and possession violated the Fifth Amendment’s Double Jeopardy Clause because possession is a lesser-included offense of receipt. Because he had not preserved either argument in the district court, the Fifth Circuit reviewed both claims for plain error.
The Court’s Holding
The Fifth Circuit affirmed the restitution orders. In light of the materials accompanying the presentence report, which the district court adopted, and the amounts awarded to the victims, Burke failed to show that any error concerning the required proximate-cause analysis affected his substantial rights.
The court also rejected Burke’s multiplicity challenge to his receipt and possession convictions. Without deciding that the convictions were multiplicitous, the court held that Burke had not shown that the claimed error was clear or obvious, as required to obtain relief under plain-error review.
Key Takeaways
- An unpreserved challenge to restitution under 18 U.S.C. § 2259 is reviewed for plain error.
- Burke did not establish that any error in the restitution court’s proximate-cause analysis affected his substantial rights.
- His unpreserved double-jeopardy challenge failed because he did not demonstrate a clear or obvious error.
Why It Matters
The decision illustrates the demanding nature of plain-error review when a defendant fails to object in the district court. Even alleged errors involving victim restitution or potentially overlapping convictions will not warrant reversal unless the defendant satisfies each requirement of that standard.
The court’s disposition was narrow: it affirmed because Burke failed to establish plain error, not because it definitively resolved whether his possession conviction was a lesser-included offense of his receipt conviction on the facts of the case.