F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 11 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-2166
          v.                                         (D. New Mexico)
 CARLOS ENRIQUE GARCIA-                        (D.C. No. CR-02-1676-WPJ)
 CASTILLO,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and LUCERO, Circuit Judges.




      Carlos Enrique Garcia-Castillo (“Garcia-Castillo”) pleaded guilty in the

District of New Mexico to a four-count superseding indictment stemming from his

attempt to steal merchandise from a train near the United States-Mexico border.

The charges were: (1) conspiracy to violate the laws of the United States under

18 U.S.C. § 371 by committing a theft from an interstate shipment, in violation of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
18 U.S.C. § 659; by entering a train to commit a crime, in violation of 18 U.S.C.

§ 1991; and by breaking or entering carrier facilities, in violation of 18 U.S.C.

§ 2117; (2) trespassing upon a railroad car with intent to commit a crime, in

violation of 18 U.S.C. § 1991; (3) entering a railroad car with intent to commit a

theft, in violation of 18 U.S.C. § 2117; and (4) assaulting a federal officer, in

violation of 18 U.S.C. § 111(a)(1). 1

      Garcia-Castillo was sentenced pursuant to the United States Sentencing

Commission, Guidelines Manual (“USSG”), to twenty-four months in prison on

each count, to be served concurrently, followed by three years of supervised

release. He was also ordered to pay a special assessment of $250, and to pay

immediately $76,594.73 in mandatory restitution, jointly and severally with

codefendant Carlos Ivan Aguirre, to reimburse the U.S. Department of Labor for

treatment of injuries suffered by several law enforcement agents during the

commission of the crime. The district court also ordered that deportation

proceedings for Garcia-Castillo, a Mexican citizen, begin during the course of his

sentence.

      On appeal, Garcia-Castillo argues (1) that it was improper for the district

court to order restitution because the assault on the agents was outside the scope


      1
        Count Four is for Garcia-Castillo’s assault on Agent Laird Hightower,
whose injuries did not require medical treatment. As explained below, this
assault was not the basis for any part of the restitution order at issue on appeal.

                                          -2-
of the train-robbery conspiracy and because the restitution order violated the

recent Supreme Court decision, Blakely v. Washington, 

(2004); 2

and (2) even if the restitution order was proper, the district court violated the

express requirements of the applicable restitution statute by failing to take into

account his financial condition when ordering the entire restitution amount due

immediately. We affirm in part, vacate in part, and remand for further

consideration consistent with this order and judgment.



                                 BACKGROUND

      Garcia-Castillo was arrested September 12, 2002, with twelve others 3 after

he boarded a Union Pacific train near the United States-Mexico border in an

attempt to steal the train’s cargo. The train was stopped on the siding in the

Sunland Park, New Mexico, area while loaded with electronics, toys, fireworks,

and canned goods that were being transported from Long Beach, California, to

Dallas, Texas. Because theft from cargo trains was an increasing problem, agents

from both countries were conducting a sting operation that day and were stationed

      2
        When the defendant raised Blakely before this court, the Supreme Court
had not yet issued United States v. Booker, 

(2005). However,
raising Blakely was sufficient to invoke Booker as well. Accordingly, even
though Garcia-Castillo did not address the application of Booker to this case, we
apply both cases and hereinafter refer to them collectively as Blakely/Booker.

      The charges against most of these individuals were dismissed for lack of
      3

evidence.

                                          -3-
in the cars of the train and in the surrounding area. As the train rested, agents

inside the train heard male voices speaking in Spanish outside the train. Garcia-

Castillo then appeared on top of a railroad car and entered it. Several agents were

waiting in that car and Garcia-Castillo was taken into custody and handcuffed.

Agents found in his possession a piece of wire and a lighter, materials that are

used to “shunt,” or stop, trains.

      Outside the train, Agents Samantha Mikeska and Sergio Barrio were

attempting to capture and arrest Eduardo Calderon, a/k/a “Lalo,” as he fled from

the train to the Mexican border. Agent Mikeska jumped on his back and the two

crashed into a cyclone fence marking the border between the two countries.

Calderon shouted for help and five or six men on the Mexican side of the fence

tried to pull Calderon through a hole in the fence. Those men also began striking

Mikeska and Barrio with their hands, fists, rocks, and bricks. The agents and

Calderon were all eventually pulled through the hole, and the assault continued

until another agent fired a shot that caused the group to scatter. Meanwhile,

Garcia-Castillo, still in custody on the train, heard the commotion outside and

attempted to escape by kicking Agent Laird Hightower in the leg, hamstring, and

buttock.

      Mikeska and Barrio were transported to the hospital. Mikeska suffered a

fractured orbital bone on her left eye, a fractured vertebra, head trauma, and a


                                          -4-
laceration on her forehead. Barrio suffered several fractures to his skull, resulting

in seizures, dizziness, migraine headaches, and emotional problems. It is

uncertain whether he will be able to return to work.

      Garcia-Castillo pleaded guilty in the District of New Mexico to the charges

outlined above. His plea agreement contained a “Waiver of Appeal Rights”

provision, and the government sought to enforce the waiver resulting in a

dismissal of this appeal by filing a Motion for Enforcement of the Plea

Agreement, as required by United States v. Hahn, 

(10th Cir. 2004)

(en banc). The language of the waiver provision was narrow and did not in any

way refer to the restitution order. Applying the principles of Hahn, a panel of this

court denied the motion because the restitution order was not encompassed in the

waiver. The waiver provision is at best ambiguous with respect to the issue in

question. However, the panel decision determined only that the appeal could go

forward. It did not address, and has no bearing on, the merits of the appeal.

Accordingly, we now address the merits of the issues outlined above.



                                   DISCUSSION

                           I. Imposition of Restitution

      Garcia-Castillo first argues that the district court erred by ordering

restitution because he was not involved in the assault on Mikeska and Barrio and


                                         -5-
should not be responsible for their injuries. He asserts that two conspiracies

existed in this case: the conspiracy to rob the train, to which he pleaded guilty,

and a separate conspiracy to aid Calderon’s escape, which resulted in harm to the

agents. He contends that it was not foreseeable that the train-robbery conspiracy

would result in the melee at the international border which resulted in the agents’

injuries. Garcia-Castillo also argues that the restitution was imposed in violation

of Blakely/Booker because a jury did not make the factual findings underlying the

restitution order. We reject these arguments on multiple grounds.



                                         A.

      We first turn to Garcia-Castillo’s argument that the agents’ injuries were

not within the scope of the train-robbery conspiracy and were not foreseeable.

“We review the legality of a restitution order de novo.” United States v. Nichols,

, 1278 (10th Cir. 1999). “Factual findings underlying a restitution

order are reviewed for clear error and the amount of restitution for an abuse of

discretion.” 

may order restitution only as “explicitly empowered by

statute.” 

(internal quotation omitted). The Victim and Witness

Protection Act (“VWPA”) provides that a court may order restitution to any

victim of an offense. 18 U.S.C. § 3663(a)(1)(A). The Mandatory Victims


                                          -6-
Restitution Act (“MVRA”), which amended the VWPA in 1996 and under which

the restitution was ordered in this case, defines “victim” as

      a person directly and proximately harmed as a result of the
      commission of an offense for which restitution may be ordered
      including, in the case of an offense that involves as an element a
      scheme, conspiracy, or pattern of criminal activity, any person
      directly harmed by the defendant’s criminal conduct in the course of
      the scheme, conspiracy, or pattern.

3663A(2). The MVRA requires restitution for victims of violent crimes.

3663A(c)(1). The parties do not dispute that conspiracy to rob a train is a

violent crime under the MVRA.

      A restitution award under these statutes is authorized only for losses caused

by the conduct underlying the conviction. United States v. Brewer, 

,

183-84 (10th Cir. 1993) (citing Hughey v. United States, 

, 420

(1990)). Nonetheless, “[a] conspiracy participant is legally liable for all

reasonably foreseeable acts of his or her coconspirators in furtherance of the

conspiracy.” 

See also United States v. Osborne, 

, 1314

(10th Cir. 2003) (“The losses caused by the entire conspiracy, not just the losses

caused by those acts committed by the defendant, can be attributed to the

defendant when the court orders restitution.” (internal quotation omitted));

(“[A] criminal defendant who participates in a

conspiracy is liable in restitution for all losses flowing from that conspiracy.”)

(internal quotation omitted).

                                          -7-
      In this case, the district court implicitly found that Garcia-Castillo was

responsible for the agents’ harm:

             THE COURT: Do you take any position on this [issue of
      restitution], Mr. Harwood?

             MR. HARWOOD [Garcia-Castillo’s counsel]: Yes, Your
      Honor. I fear we may be dealing with a theoretical issue because
      Mr. Garcia has absolutely no ability to pay any restitution, but for the
      Court to order restitution, I think the Court needs to find that the
      injuries suffered by the agents were somehow causally connected to
      Mr. Garcia-Castillo, and that’s simply not the case from the
      uncontested facts in the presentence report.
             He pled guilty to a conspiracy to burglarize a train. . . . At the
      time these other unknown individuals, who may or may not have
      even been part of this train burglary conspiracy, injured the other two
      agents, Mr. Garcia was on the ground in custody in handcuffs.
             It’s not a foreseeable result of a train burglary. Nobody was
      armed . . . when they started the burglary, and we don’t even know if
      the people who ended up injuring these agents were part of the
      conspiracy or just other people in the area, so I don’t think it would
      be appropriate, Your Honor.

             THE COURT: I find and conclude that the Mandatory
      Restitution Act requires me to impose restitution, and therefore, part
      of this Judgment and Commitment will require that the defendant
      make restitution to the United States Department of Labor . . . in the
      amount of $75,594.73 [sic].

Tr. of Sentencing Hr’g at 10-11, R. Vol. IV (emphasis added). Because the

district court allowed defense counsel to expound on the issue, and immediately

thereafter ordered the full amount of restitution, it is apparent that the court found

that the agents’ injuries flowed from the conspiracy to rob the train.




                                          -8-
      The record supports that finding. The conduct underlying the conspiracy

conviction was Garcia-Castillo’s agreement with Calderon and others to steal

merchandise from the train. It is foreseeable that during a criminal act such as

this, law enforcement agents could confront and seek to apprehend the thieves,

and that bodily harm could result from the encounter, whether during an

attempted escape across the border or otherwise. The conspiracy was the direct

cause of the agents’ injuries. We therefore hold that the harm inflicted on

Mikeska and Barrio was in the course of the conspiracy to which Garcia-Castillo

pleaded guilty, and the restitution order was, therefore, required by statute.



                                         B.

      We now consider Garcia-Castillo’s contention that the restitution order

violated Blakely/Booker, because: (1) the judge, rather than a jury, found the

facts underlying the restitution order, and (2) the judge did so under a

preponderance of evidence standard, in accordance with 18 U.S.C. § 3664(e),

rather than under a beyond a reasonable doubt standard. Garcia-Castillo contends

that only a jury could have made the factual findings supporting the restitution

order as to “the scope of the conspiracy that Mr. Garcia-Castillo joined, whether

the melee involving the two injured agents was in furtherance of that conspiracy,




                                          -9-
whether the injuries to those agents were foreseeable to Mr. Garcia-Castillo, and

the amount of restitution due for those injuries.” Appellant’s Supp. Br. at 8.

      In Blakely, the Supreme Court reiterated the holding of Apprendi v. New

Jersey, 

(2000), that “‘[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”

(quoting 

). In applying this

holding to Washington state’s determinate sentencing scheme, Blakely clarified

that the “statutory maximum” is “not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may impose without any

additional findings.” 

Recently, Booker applied Blakely to the federal

sentencing guidelines, rendering them advisory rather than mandatory. Booker

held that “[a]ny fact (other than a prior conviction) which is necessary to support

a sentence exceeding the maximum authorized by the facts established by a plea

of guilty must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” 

. For any one of three independent

reasons, we reject Garcia-Castillo’s Blakely/Booker argument.




                                         -10-
1.    Restitution is not punishment

      Blakely/Booker apply only to judicial fact-finding that increases a criminal

punishment in violation of the Sixth Amendment. 

(applying its rule to “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury” (emphasis added)).

Restitution ordered under the VWPA and MVRA, however, is not criminal

punishment. “‘[T]he VWPA’s purpose is not to punish defendants or to provide a

windfall for crime victims, but to ensure that victims, to the greatest extent

possible, are made whole for their losses.’” 

(quoting

United States v. Arutunoff, 

, 1121 (10th Cir. 1993)) (emphasis

added). See also United States v. Hampshire, 

, 1006 (10th Cir. 1996)

(“[T]he VWPA seeks to compensate victims rather than punish defendants.”

(emphasis added)). Although the question in Nichols was whether restitution was

criminal punishment barring ex post facto application of the 

, the principle does not change simply because we are examining the issue

in a Sixth Amendment context.

      We acknowledge that this reasoning is somewhat in tension with our recent

case United States v. Wooten, 

, 1144 & n.1 (10th Cir.), cert.

denied, 

(2004), which held that Apprendi and Blakely did not

apply to a restitution order because the amount ordered did not exceed any


                                         -11-
prescribed statutory maximum. 

& n.1. Wooten noted

in dicta that “courts commonly regard . . . restitution orders as criminal

penalties,” but concluded Apprendi still did not apply because the defendant

never contended that the restitution order exceeded the amount of the victim’s

harm, or the statutory maximum under the MVRA. 

18 U.S.C.

§ 3663A(b).

      Wooten, however, did not explain its divergence in dicta from our

controlling precedent in Nichols, Hampshire, and Arutunoff holding that

restitution is not punishment. And, it is a well-established rule in this circuit that

an earlier decision that has not been overturned en banc or by express supervening

Supreme Court authority, takes precedence over a later, conflicting decision. See

United States v. Prentiss, 

, 965 n.2 (10th Cir. 2000) (“[T]o the extent

that a more recent panel decision conflicts with . . . prior Tenth Circuit authority,

we are bound by the earlier case.”). We therefore adhere to the holding that




                                          -12-
restitution is not criminal punishment. 4 Blakely/Booker therefore do not apply to

the restitution order.



2.    Garcia-Castillo admitted the facts underlying the restitution order

      Alternatively, and assuming arguendo that restitution is criminal

punishment subject to Blakely/Booker, the Sixth Amendment is still not

implicated because Blakely/Booker do not apply to sentences based on facts

which have been admitted by the defendant or found by a jury. 

; 

. By entering into the plea agreement,


      4
        Whether restitution is criminal punishment and whether restitution is
subject to Apprendi, Blakely, and Booker are by no means settled questions in
courts across the country. Compare United States v. Behrman, 

,
1054 (7th Cir. 2000) (Apprendi does not apply to restitution because it is not
criminal punishment but rather a “classic civil remedy,” and, alternatively, MVRA
does not have a statutory maximum); United States v. Szarwark, 

,
998 (7th Cir. 1999) (restitution ordered under the MVRA is not criminal
punishment); United States v. Wilson, __ F. Supp. 2d. __, No. 2:03-CR-00882-
PGC, 

, at *16-18 (D. Utah Jan. 13, 2005) (historical precedents
compel conclusion that restitution is not criminal punishment, and Booker
addressed constitutionality of sentencing guidelines, not the MVRA); United
States v. Visinaiz, 

, 1318-26 (D. Utah 2004) (discussing
extensively reasons why restitution is not criminal punishment); and United States
v. Einstman, 

, 382 (S.D.N.Y. 2004) (stating uncertainty about
whether restitution is criminal punishment but nonetheless concluding that
Congress intended judge, not jury, to order restitution); with United States v.
Ross, 

, 609 (8th Cir. 2002) (restitution is a criminal penalty); United
States v. Bearden, 

, 1042 n.4 (6th Cir. 2001) (stating Seventh
Circuit’s decision in Behrman at odds with case law in other circuits holding that
restitution is punishment); and United States v. Williams, 

, 1241
(8th Cir 1997) (restitution is a criminal penalty).

                                        -13-
Garcia-Castillo admitted the facts underlying the restitution order, namely, that

the agents’ injuries were caused by the conspiracy.

      In the plea agreement, Garcia-Castillo waived his right to “have a trial by

jury” and agreed to “plead guilty to a four-count Superseding Indictment”

charging him with the counts described above. Plea Agreement at 1, 2, R. Vol. I,

doc. 137. The plea agreement also informed Garcia-Castillo that a guilty plea to

the conspiracy charge would subject him to “restitution as may be ordered by the

Court, including, if applicable, mandatory restitution under 18 U.S.C. § 3663A.”

Moreover, the indictment contained the following description of the

assault on the agents as an overt act in furtherance of the train-robbery

conspiracy:

      On September 12, 2002, after being observed by law enforcement
      officers, several of Defendant Garcia-Castillo’s unindicted co-
      conspirators fled from the area near the train. Several of these, and
      other unindicted co-conspirators, threw bricks, rocks, and sticks at
      FBI Special Agent Samantha Mikeska and FBI Special Agent Sergio
      Barrio in an effort to help another unidentified co-conspirator escape
      from FBI Special Agent Samantha Mikeska.

Superseding Indictment at 4, R. Vol. I, doc. 139. Garcia-Castillo’s counsel for

the first time objected to this overt act at the plea hearing and again at the

sentencing hearing; but at no time did he ask that the overt act be stricken from

the indictment, and he never sought to modify or void the plea agreement and go

to trial. The fact is that Garcia-Castillo entered into the plea bargain


                                          -14-
unconditionally and is bound by its terms and what it encompasses. A defendant

who pleads guilty admits to all of the factual allegations contained in the

indictment, including overt acts in furtherance of a conspiracy, and the legal

consequences of those acts. United States v. Wilks, 

, 1523 (10th Cir.

1995); Spencer v. Hunter, 

, 829 (10th Cir. 1944). See also United

States v. Brown, 

, 521 (10th Cir. 1998) (“An unconditional plea of

guilty is an admission of all material facts alleged in the charge.”); United States

v. Powell, 

, 503 (10th Cir. 1998) (same). Therefore, Garcia-Castillo

admitted that the conspiracy to which he pleaded guilty encompassed the agents’

injuries, and the Sixth Amendment is not implicated by the restitution order.



3.    Alternatively, the district court did not commit plain error when it ordered
      restitution

      As further alternative argument, assuming arguendo that restitution is

criminal punishment, that Blakely/Booker apply, and that Garcia-Castillo did not

admit the facts underlying the restitution order, we review this claim for plain

error. The defendant raised this issue for the first time in a Supplemental Brief in

this court. He did not present it below. 5 

(“[W]e expect



      5
       We decline Garcia-Castillo’s invitation to apply the “supervening-
decision” doctrine of Anixter v. Home-Stake Prod. Co., 

, 1231 (10th
Cir. 1996), to the Blakely/Booker issue in this case.

                                         -15-
reviewing courts to apply ordinary prudential doctrines, determining, for example,

whether the issue was raised below and whether it fails the ‘plain-error’ test.”);

United States v. Maldonado-Ramires, 

, 1230 n.1 (10th Cir. 2004);

United States v. Sanchez-Cruz, 

, 1201 (10th Cir. 2004).

      Reversal under the plain error standard requires (1) an error, (2) that is

plain, and that (3) affects substantial rights. United States v. Olano, 

, 732 (1993). The burden is on the defendant to demonstrate that the error

affected his substantial rights. United States v. Vonn, 

, 63 (2002). If

these three conditions are met, the reviewing court may in its discretion correct

the error if the error (4) “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” 

(internal quotation

marks omitted).

      In the unique circumstances of this case, we need not examine the third and

fourth prongs of the plain-error test because we conclude that even if, arguendo,

there was error, it certainly was not plain, as the foregoing discussion indicates.

For an error to be “plain,” it must be “clear or obvious” and “contrary to well-

settled law.” United States v. McSwain, 

, 481 (10th Cir. 1999). As

noted above, there is a lack of uniformity in the law of this circuit, and of our

sister circuits, on whether restitution is criminal punishment and therefore subject

to the Sixth Amendment principles announced in Apprendi, Blakely, and Booker.


                                           -16-
See supra n. 4. There is one point of commonality, however: our research failed

to yield a single case in which an order of restitution was reversed under

Apprendi, Blakely, or Booker. We did find one recent case in which this circuit

reversed and remanded because the district court failed to order mandatory

restitution under the MVRA. United States v. Barton, 

, 1167 (10th

Cir. 2004). Therefore, because it is far from “clear” or “well-settled” whether

and how restitution implicates the Sixth Amendment, there was no plain error.



                              II. Manner of Payment

      Garcia-Castillo next contends that even if the restitution order was proper,

the district court erred by requiring the full amount, plus interest and penalties, to

be due immediately without considering his financial condition. Garcia-Castillo’s

attorney did not raise this issue below. 6 We therefore review for plain error.

      The MVRA states:

      In each order of restitution, the court shall order restitution to each
      victim in the full amount of each victim’s losses as determined by the
      court and without consideration of the economic circumstances of the
      defendant.


      6
        As noted above, Garcia-Castillo’s attorney did make reference to his
client’s financial situation at the sentencing hearing when he stated: “I fear we
may be dealing with a theoretical issue because Mr. Garcia has absolutely no
ability to pay any restitution . . . .” Tr. of Sentencing Hr’g at 10, R. Vol. IV.
However, this statement is not specific enough to be construed as raising the
manner-of-payment issue.

                                         -17-
                                          ...
      Upon determination of the amount of restitution owed to each victim,
      the court shall, pursuant to section 3572, specify in the restitution
      order the manner in which, and the schedule according to which, the
      restitution is to be paid, in consideration of—
                    (A) the financial resources and other assets of the
                    defendant, including whether any of these assets are
                    jointly controlled;
                    (B) projected earnings and other income of the
                    defendant; and
                    (C) any financial obligations of the defendant; including
                    obligations to dependents.

      A restitution order may direct the defendant to make a single, lump-
      sum payment, partial payments at specified intervals, in-kind
      payments, or a combination of payments at specified intervals and in-
      kind payments.

      A restitution order may direct the defendant to make nominal
      periodic payments if the court finds from facts on the record that the
      economic circumstances of the defendant do not allow the payment
      of any amount of a restitution order, and do not allow for the
      payment of the full amount of the restitution order in the foreseeable
      future under any reasonable schedule of payments.

18 U.S.C. § 3664(f)(1)-(3) (emphasis added). A district court is therefore to

disregard a defendant’s financial condition when determining the amount of

restitution to be paid, but it is to consider a defendant’s financial condition when

determining the manner in which the restitution should be paid, whether in

accordance with a schedule, by nominal payment, or in a lump sum. 7 United



      7
       Under the VWPA, in contrast with the MVRA, a district court is required
to consider the financial resources of the defendant and the defendant’s future
earning capacity in deciding even whether to order restitution. See United States
v. Haddock, 

, 837-38 (10th Cir. 1995).

                                        -18-
States v. Coates, 

, 683-84 (3d Cir. 1999); United States v. Myers,

, 168-69 (5th Cir. 1999).

      The presentence report noted that Garcia-Castillo had no income or assets

and only a grade-school education. As conceded by government counsel at oral

argument, the district court violated the statute by ordering the full amount of

restitution due immediately without contemplating the defendant’s ability to pay,

a payment schedule, or nominal payments. 

; 

. We therefore vacate the portion of the restitution order that directs

immediate full payment and remand to the district court to consider an appropriate

manner of payment.



                                  CONCLUSION

      Garcia-Castillo’s restitution order is AFFIRMED, except for the

requirement that he pay the full amount of restitution immediately, which is

VACATED and REMANDED to the district court for consideration of Garcia-

Castillo’s financial circumstances in determining the manner in which payment

shall be made.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge



                                         -19-