Case: 17-20172   Document: 00514589346        Page: 1   Date Filed: 08/07/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                    No. 17-20172                       FILED
                                                                  August 7, 2018
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

KINDY STEVEN ROMERO-MEDRANO,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      The court’s prior opinion, issued on August 6, 2018, is withdrawn by the
panel and the following is issued in its place.
      A jury found Kindy Romero-Medrano guilty of distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court
sentenced Romero-Medrano to 135 months’ imprisonment and twenty years’
supervised release, and ordered him to pay $10,397.68 in restitution. On
appeal, Romero-Medrano challenges: (1) the amount of the restitution order;
(2) the district court’s denial of his motion for mistrial based on statements
made by the Government during closing arguments; and (3) a condition of
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supervised release contained in the written judgment but not orally specified
by the district court at the sentencing hearing. We affirm.
                        I. The Restitution Amount
      Following the sentencing hearing, the district court held two additional
hearings concerning restitution pursuant to 18 U.S.C. § 2259, which provides
for mandatory restitution for various offenses, including possession and
distribution of child pornography. Two victims featured in the materials
possessed and/or distributed by Romero-Medrano sought restitution. One
individual with the pseudonym “Vicky” requested $10,000, while the other
individual, known as “Sarah,” requested $15,000. After considering the
requests, the evidence submitted in support thereof, and the arguments
presented by defense counsel and the Government at the hearings, the district
court issued a written order and amended judgment directing Romero-
Medrano to pay restitution in the amount of $3,944.35 to Vicky, and $6,453.33
to Sarah.
      The district court arrived at those amounts as follows. The court began
with each victim’s total claimed economic losses—$4,462,040.96 for Vicky and
$2,753,421.77 for Sarah—and then divided by the number of prior restitution
orders each had received up to that point, plus one (to account for Romero-
Medrano)—905 for Vicky and 384 for Sarah. This yielded $4,930.43 for Vicky
and $7,170.37 for Sarah. The district court then used a 10 percent reduction to
account for the “larger universe of offenders that includes future prosecuted
defendants and offenders who are never prosecuted,” and another 10 percent
reduction out of recognition that “a possessor/distributor should not be the
proportional equivalent to an initial abuser in a child pornography case.” In
Sarah’s case, the district court applied a 10 percent increase after determining
that Romero-Medrano, as a distributor, had “a greater proportional role in
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                                      No. 17-20172
[her] losses than mere possessors” did. Applying a 20 percent total reduction
in Vicky’s case and a net reduction of 10 percent in Sarah’s case yielded a final
award of $3,944.35 for Vicky and $6,453.33 for Sarah.
       Romero-Medrano argues that the restitution order should be vacated
and the case remanded because the district court’s calculations are not based
on “reasonably reliable” predictions about the number of future offenders. This
court “review[s] the propriety of a particular [restitution] award for an abuse
of discretion.” United States v. Jimenez, 692 F. App’x 192, 200 (5th Cir. 2017)
(unpublished decision) (quoting United States v. Sheets, 

, 259 (5th
Cir. 2016)). 1
       In Paroline v. United States, 

(2014), the Supreme Court
held that restitution is “proper under § 2259 only to the extent the defendant’s
offense proximately caused a victim’s losses.” 

While the Court
acknowledged that a district court’s determination of the proper amount of
restitution “involves the use of discretion and sound judgment” and often
cannot be reduced to “a precise mathematical inquiry,” it also identified “a
variety of factors district courts might consider in determining a proper
amount of restitution.” 

According to the Court, those factors “could
include”: (1) “the number of past criminal defendants found to have contributed
to the victim’s general losses”; (2) “reasonable predictions of the number of
future offenders likely to be caught and convicted for crimes contributing to
the victim’s general losses”; (3) “any available and reasonably reliable estimate
of the broader number of offenders involved (most of whom will, of course,
never be caught or convicted)”; (4) “whether the defendant reproduced or



       1   Romero-Medrano does not argue that the restitution awards were unauthorized by
statute.
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                                  No. 17-20172
distributed images of the victim”; (5) “whether the defendant had any
connection to the initial production of the images”; (6) “how many images of
the victim the defendant possessed”; and (7) “other facts relevant to the
defendant’s relative causal role.” 

emphasized that “[t]hese
factors need not be converted into a rigid formula, especially if doing so would
result in trivial restitution orders,” and that “[t]hey should rather serve as
rough guideposts for determining an amount that fits the offense.” 

Romero-Medrano, the 10 percent reduction applied by the
district court does not reasonably account for the potentially “larger universe
of offenders” in this case. He maintains that, at a minimum, the district court
should have divided each victim’s total economic losses by double the number
of restitution orders each had obtained up to that point in time. This approach,
he asserts, is reasonable because “the past is predictive of the future.” We need
not assess the relative merits of Romero-Medrano’s alternative approach
because even if that approach could produce a permissible award calculation
in certain circumstances, the district court was not required to adopt it in the
present case. As Paroline stresses, district courts retain a wide degree of
discretion in calculating the appropriate amount of restitution in individual
cases. Nothing in the record demonstrates that the district court’s 10 ten
percent reduction was unreasonable in this case. This is not a case in which
the district court failed to make any adjustment based on the likelihood of
additional future offenders or in which the amount awarded is demonstrably
excessive in relation to amounts assessed against comparable defendants. Nor
is this a case in which the number of prior restitution orders calls into question
the district court’s basic methodology. See United States v. Sainz, 

,
607 (7th Cir. 2016) (observing that “the 1/n method [may not be] appropriate
for all cases because the restitution amount depends so heavily on the number
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                                 No. 17-20172
of offenders previously sentenced,” and that “[w]here n is very small or very
large, a more nuanced method may be required”).
      The district court did not abuse its discretion in determining the amount
of restitution in this case.
                          II. The Motion for Mistrial
      18 U.S.C. § 2252A(a)(2)(B) prohibits any person from “knowingly . . .
distribut[ing] . . . any material that contains child pornography.”
“[D]ownloading images and videos containing child pornography from a peer-
to-peer computer network and storing them in a shared folder accessible to
other users on the network” can constitute illegal distribution within the
meaning of § 2252A(a)(2)(B), but to obtain a conviction under that provision,
the Government must prove beyond a reasonable doubt that the defendant
engaged in such distribution “knowingly.” United States v. Richardson, 

, 234, 236 (5th Cir. 2013) (affirming conviction under § 2252A(a)(2)(B)
where the defendant installed peer-to-peer file-sharing software, downloaded
and stored child pornography through that software, and admitted that he
“knew that what was in his ‘shared’ folder was made available to others
through file sharing”).
      At trial, the Government presented evidence that Romero-Medrano
installed a peer-to-peer file-sharing program called Wirestack on his computer
and used that software to store files containing child pornography in a shared
folder, thereby making those files accessible to other users over the internet.
The Government’s evidence also showed that on several dates during May and
June of 2013, law enforcement used peer-to-peer file-sharing software to
download video files containing child pornography that had been made
available for sharing through a device located at Romero-Medrano’s residence.
On July 19, 2013, law enforcement searched the apartment where Romero-
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                                  No. 17-20172
Medrano lived and seized a laptop computer and external hard drive.
Examination of those devices uncovered multiple files containing child
pornography. Review of the devices also revealed that at some point between
June 30 and July 19, 2013, the settings on Romero-Medrano’s Wirestack
software had been changed from their default setting—which allows for
complete file sharing—to permit only partial file sharing.
      Romero-Medrano did not testify or present any witnesses during the
trial. Instead, defense counsel argued that the Government had failed to meet
its burden of proving beyond a reasonable doubt that Romero-Medrano
“knowingly” distributed any files containing child pornography. To install
Wirestack on a computer, a potential user must navigate through a series of
screens that allow for the configuration of various program settings. At each
step in the installation process, the user can simply click a button labeled
“next” and proceed to the next step. If the user clicks “next” at each step
without altering any settings, then the software’s default settings—which, as
noted, allow for complete file sharing—remain in place. Defense counsel
contended that there was “a definite possibility” that when installing the
Wirestack software on his computer, Romero-Medrano “simply clicked next,
next, next, next” and therefore did not “knowingly” enable the sharing of the
files in question. In addition, defense counsel argued that the evidence that the
program’s sharing setting had been changed in the days prior to the
Government’s search demonstrated that Romero-Medrano “recognized that
sharing was on” and “shut it off, or at least tried to.”
      During the Government’s closing argument, the following exchange
occurred:
      Prosecutor: The judge discussed with you direct and
      circumstantial evidence, and my trial partner discussed direct and

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                                 No. 17-20172
      circumstantial evidence with you during voir dire. The fact that
      the defendant changed his settings [on the Wirestack software] is
      not evidence of anything other than he changed his settings. I
      believe the defense is going to ask you to speculate about why he
      changed his settings. But the reality is, the only evidence you have
      is that prior to June 30th, at some point they were set to fully
      share; and on July 19th, they were set to partially share. And the
      rules don’t say, and the law doesn’t say you get to speculate as to
      why they were changed. There is no evidence as to why they were
      changed.

      Defense Counsel: Your Honor, she is shifting the burden of proof.

      The Court: Okay. Ladies and gentlemen, the burden of proof, as
      I have told you more than once, is with the government. The
      government must prove guilt beyond a reasonable doubt. The
      burden never shifts to the—to the defendant. Everybody
      understands that, I’m sure. Okay.

      Prosecutor: There is no evidence that he did anything other than
      want to share.

      Defense Counsel: Your Honor, again, she has just said the same
      sentence again. She is shifting the burden because she has done it
      twice in a row. I move for a mistrial.

      The Court: Okay. The burden doesn’t shift. The burden doesn’t
      shift. And we can’t—we can’t make allegations about—in any case
      what the defendant did or did not show. That is simply not the
      defendant’s job.

      Prosecutor: Your Honor, I am not saying that.

      The Court: I am not saying you are. I’m just explaining to the
      jury what the rules are.

      On appeal, Romero-Medrano does not argue that the evidence is
insufficient to support his conviction. He only argues that the district court
erred when it denied his motion for mistrial. Specifically, he contends that the
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prosecutor’s statements that “[t]here is no evidence as to why [the Wirestack
settings] were changed” and that “[t]here is no evidence that [Romero-
Medrano] did anything other than want to share” constituted impermissible
burden-shifting comments on Romero-Medrano’s decision not to testify—
particularly when construed in light of the prosecutor’s subsequent requests
that the jury make him “take responsibility” for his actions.
      “This court reviews the denial of a motion for mistrial for abuse of
discretion.” United States v. Velasquez, 

, 343 (5th Cir. 2018) (per
curiam) (citing United States v. Zamora, 

, 211 (5th Cir. 2011)). “A
trial court abuses its discretion when it bases its decision on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” 

(quoting United States v. Caldwell, 

, 341 (5th Cir. 2009)).
      “A prosecutor is prohibited from commenting directly or indirectly on a
defendant’s failure to testify or produce evidence.” United States v. Wharton,

, 538 (5th Cir. 2003); accord 

. “A
prosecutor’s . . . remarks constitute a comment on a defendant’s silence in
violation of the Fifth Amendment if the manifest intent was to comment on a
defendant’s silence, or if the character of the remark was such that the jury
would naturally and necessarily construe the remark to be a comment on a
defendant’s silence.” 

; accord 

. “[T]he comments complained of must be viewed within the context of the
trial in which they are made.” 

(quoting United States
v. Dula, 

, 776 (5th Cir. 1993)).
      Romero-Medrano does not claim that the prosecutor’s statements were
“manifestly intended” as a comment on his silence at trial, and we conclude
that the jury would not have “naturally and necessarily” construed them as
such. Viewed in context, the jurors would have understood the prosecutor’s
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statements as arguments regarding the reasonable inferences that they could
draw from the evidence presented by the Government, not as impermissible
references to Romero-Medrano’s decision not to testify. See United States v.
Morrow, 

, 299–300 (5th Cir. 1999) (holding that the prosecution’s
“generalized comments” regarding “some undisputed points” did not amount
to improper commentary on the defendant’s failure to testify). Furthermore,
even if the prosecutor’s comments were improper, the district court’s prompt
reminder to the jury that the burden of proof never shifted to Romero-Medrano
prevented any prejudice that might have otherwise resulted. See 

(“[A] curative instruction can militate against finding a
constitutional   violation,   or   become   central   to    the   harmless   error
analysis.” (quoting United States v. Ramey, 531 F. App’x 410, 414 (5th Cir.
2013) (unpublished decision))).
      The district court did not abuse its discretion by declining to declare a
mistrial.
                  III. The Supervised Release Condition
      At the sentencing hearing, the district court stated that, as a condition
of supervised release, Romero-Medrano “shall not view, possess, or have under
his control any nude depictions of children, sexually oriented or sexually
stimulating materials.” Following that hearing, the court entered a written
judgment containing several “special conditions of supervision,” including the
following:
      The defendant shall not view, possess or have under his control,
      any nude depictions of children, sexually oriented or sexually
      stimulating materials, including visual, auditory, telephonic, or
      electronic media, computer programs or services. The defendant
      shall not patronize any place where such material or
      entertainment is the primary source of business. The defendant
      shall not utilize any sex-related telephone numbers.
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      Romero-Medrano argues that the written judgment’s requirement that
he “not utilize any sex-related telephone numbers” must be set aside because
the district court did not orally pronounce that condition during the sentencing
hearing. In cases such as this, where the defendant “had no opportunity at
sentencing to consider, comment on, or object to [a] special condition[] later
included in the written judgment,” we review for abuse of discretion rather
than plain error. United States v. Franklin, 

, 566–67 (5th Cir.
2016) (quoting United States v. Bigelow, 

, 381 (5th Cir. 2006)).
      “[W]here there is a conflict between the oral pronouncement and the
written judgment, the oral pronouncement controls.” United States v. Tang,

, 487 (5th Cir. 2013) (citing 

). However,
“[i]f the written judgment simply clarifies an ambiguity in the oral
pronouncement, we look to the sentencing court’s intent to determine the
sentence.” 

States v. Warden, 

, 365 (5th Cir.
2002)). Here, the district court’s written restriction on Romero-Medrano’s use
of sex-related telephone numbers merely clarified the orally pronounced
condition that he not have “under his control” any “sexually oriented or
sexually stimulating materials.” Indeed, Romero-Medrano does not object to
the portion of the written judgment clarifying that “sexually oriented or
sexually       stimulating      materials”          include     “auditory      [and]
telephonic . . . services.”
      The district court did not abuse its discretion by including the challenged
provision in the written judgment.
                                  *     *       *
      AFFIRMED.




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