United States v. McIntosh
In United States v. McIntosh, No. 23-20275 (5th CIr. July 24, 2024) (unpublished), the Fifth Circuit vacated the defendant’s restitution order but affirmed his convictions and prison sentence.
The Conviction: McIntosh challenged his guilty-plea conviction for conspiring to advertise child pornography under 18 U.S.C. § 2251(d), (e). He argued that his factual basis was insufficient because “the plain meaning of the word advertise suggests there should be some public component to the activity.” Unfortunately, McIntosh had not raised this argument in the district court, and he could not prevail on appeal under the plain error standard of review because the Fifth Circuit “has never addressed this issue, however, and other federal circuits have come to divergent conclusions on the issue.”
The Prison Sentence: The court did not evaluate McIntosh’s challenge to his Sentencing Guidelines because his plea agreement had included a valid appeal waiver.
The Restitution Order: The court did, however, agree with McIntosh’s final argument, finding that it was not barred by his appeal waiver because it was “tantamount to a claim of ineffective assistance of counsel.” Here, “McIntosh effectively had no representation in connection with [his] restitution proceedings.”
When the Government filed its restitution motion in the district court, “retained counsel stated that he was no longer representing McIntosh, and appellate counsel stated that he was only representing him in connection with his appeal.” McIntosh himself requested appointed counsel to help with the restitution issue, but “the district court denied that motion and ordered restitution in the amount requested by the Government.”
Deferred restitution proceedings under 18 U.S.C. § 3664(d)(5) are “a critical stage in the criminal proceedings,” so McIntosh had a right to counsel. The Fifth Circuit vacated only the restitution order, however, because “the restitution determination had no influence on the district court’s determination of McIntosh’s prison terms.”