Nevertheless, "[because] [Sidney]'s challenge[s] fail[] under any standard of review, we need not decide whether th[ese] issue[s] concern[] a procedural error or the substantive reasonableness of the sentence". United States v. Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023).
Barnett preserved his objection to the district court's restitution order by objecting at sentencing. See United States v. Sepulveda, 64 F.4th 700, 712 (5th Cir. 2023). Accordingly, we review the legality of a restitution order de novo and the amount of restitution for abuse of discretion
The Government and Luna Caudillo agree that review of the restitution order's legality is de novo. See United States v. Sepulveda, 64 F.4th 700, 712 (5th Cir. 2023). III.
"[I]f the defendant does not preserve a claim of . . . substantive unreasonableness in the district court, plain error review applies." United States v. Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023).
This court need not decide whether Osemwengie preserved his Kisor-based claim because his challenge "fails under any standard of review." See United States v. Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023). We have held that Kisor does not govern the guidelines and its commentary.
We review preserved reasonableness challenges for abuse of discretion. United States v. Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023).
In similar cases, different circuits have taken several doctrinal paths to a common ground: sexual assault by an official acting under color of law violates the constitutional rights of the victim. E.g., United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006) ("victims [have] a right under the Fourteenth Amendment to be free from sexual abuse by a state actor"); United States v. Shaw, 891 F.3d 441, 444-45, 450 (3d Cir. 2018) (affirming conviction of correctional officer who raped pretrial detainee for violating constitutional right to bodily integrity); United States v. Sepulveda, 64 F.4th 700, 703-04 (5th Cir. 2023) (same for police officer who committed sexual assault); Sexton v. Cernuto, 18 F.4th 177, 184, 192-93 (6th Cir. 2021) (rejecting qualified immunity for official who facilitated sexual assault, violating victim's right to bodily integrity); Johnson v. Phillips, 664 F.3d 232, 239 (8th Cir. 2011) (law was "clearly established in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience"); United States v. Gonzalez, 533 F.3d 1057, 1064 (9th Cir. 2008) ("Included in the liberty protected by the Fourteenth Amendment is the concept of personal bodily integrity and specifically 'the right to be free from certain sexually motivated physical assaults. . . .' "), quoting United States v. Lanier, 520 U.S. 259, 262, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
Besides, Brady held that it is a violation of a defendant's due process rights if the government suppresses “‘evidence favorable' to the accused ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963) (quoting Pyle v. Kansas, 195 F.2d 815, 820 (3d Cir. 1952)). To prove a Brady violation, a defendant “must establish that ‘(1) the prosecution did not disclose the evidence; (2) the evidence was favorable to the defense; and (3) the evidence was material,' meaning that ‘there is a reasonable probability that if the government had disclosed the evidence, the result of the proceeding would have been different.'” United States v. Sepulveda, 64 F.4th 700, 706 (5th Cir. 2023) (quoting United States v. Fernandez, 559 F.3d 303, 319 (5th Cir. 2009)). Villacorta did not provide evidence or authority establishing the government's violation of any of these three elements.
¶52 For these reasons, I believe that the question of proximate cause in the context of determining restitution in a criminal case presents a mixed question of law and fact, with the ultimate determination of proximate cause being a question of law, and many courts have so determined. See, e.g., United States v. Sepulveda, 64 F.4th 700, 712–13 (5th Cir. 2023) ("[W]e generally review the legality of a restitution order de novo. … [S]ome of our cases have reviewed de novo the amount of restitution ordered where the defendant attacks the causal link between the restitution ordered and the offense.