Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:24-CR-257-1

Before King, Smith, and Ramirez, Circuit Judges .

Per Curiam:

Luis Enrique Padilla appeals an order of restitution under the Mandatory Victims Restitution Act ( MVRA ), 18 U.S.C. § 3663A, following his guilty plea conviction for misdemeanor deprivation of rights in violation of 18 U.S.C. § 242. We AFFIRM .

Padilla is the former chief of the Sunset Police Department in Sunset, Louisiana. While investigating a hit-and-run incident in December of 2023, Page 2Padilla encountered R.A. outside of the suspect's house. R.A. 'was not aware of the hit and run” and “did not match the physical description of the suspect.” Padilla “approached [him] in an aggressive manner and placed him in handcuffs.' Although 'R.A. was not resisting' and did not 'pos[e] a threat to himself or any officer,” Padilla “poked” him “in the chest and neck area and began to yell at” him. “R.A. was still handcuffed” when “Padilla warned ‘let me show you how bad I am’ and proceeded to forcefully twist [and sprain his] left thumb and wrist.” “Padilla acknowledges and agrees that he willfully used unreasonable force under the circumstances.”

Padilla was indicted for deprivation of rights under color of law in violation of 18 U.S.C. § 242. The indictment alleged that Padilla violated R.A.’s right “to be free from unreasonable seizures, which includes the right to be free from a law enforcement officer’s use of unreasonable force during an investigation and detention' when he, 'without legal justification and while R.A. was restrained in handcuffs, forcefully twisted R.A.’s thumb and wrist in a manner intended to cause pain, which resulted in bodily injury.” Because the indictment alleged that Padilla caused bodily injury, the § 242 violation was charged as a felony.

Padilla pleaded guilty to a superseding bill of information that charged him with a § 242 violation without causing bodily injury, a misdemeanor. The district court sentenced Padilla to five years of probation. The Presentence Investigation Report ( PSR ), which it had adopted at sentencing, stated that Padilla “is unable to pay a fine in either a lump sum, or monthly installments, in addition to any restitution ordered by the [district] [c]ourt.” The district court did not impose a fine and deferred its decision regarding restitution until a later hearing.

Page 3The Government sought $5,312.08 in restitution—$5,000 for twenty one-hour therapy sessions for the victim, plus $312.08 in expenses the victim incurred in relocating from Sunset after the incident. At the restitution hearing, it offered a psychologist’s testimony, which the district court found credible, that R.A. had PTSD due to Padilla's use of force and that he both needed and wanted treatment. Concluding that the MVRA applied because Padilla was convicted of a crime of violence, the district court ordered Padilla to pay $3,500 in restitution for R.A.’s therapy, but it rejected the request for moving expenses as impermissible under the MVRA . Padilla argued that the Government did not prove the amount of its restitution request but did not object to application of the MVRA . He now appeals the restitution order.

Because Padilla did not preserve his first point of error, that the MVRA does not apply, our review is for plain error. See United States v. Borino , 123 F.4th 233, 245 (5th Cir. 2024). Padilla must show: (1) an “error,” (2) 'that is 'plain,'' and (3) 'that 'affect[s] substantial rights.'' Id. (alteration in original) (quoting Johnson v. United States , 520 U.S. 461, 466– 67 (1997)). ' If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson , 520 U.S. at 466–67).

As for Padilla’s second argument that even if the MVRA does apply, the restitution award is erroneous, “we review the legality of the restitution award de novo , ‘and if the award is legally permitted, we review the amount for abuse of discretion.’” United States v. Mahmood , 820 F.3d 177, 196 (5th Cir. 2016) (quoting United States v. Klein , 543 F.3d 206, 215 (5th Cir. 2008)). We review factual findings for clear error. United States v. Barnes , 979 F.3d 283, 313 (5th Cir. 2020).

Page 4Under the MVRA , a district court “shall order” restitution when a defendant is convicted of “a crime of violence, as defined in section 16.” 18 U.S.C. § 3663A(a)(1), 3663A(c)(1)(A)(i). Padilla argues that the district court plainly erred in applying the MVRA because he was not convicted of a crime of violence under United States v. Williams , which stated that a misdemeanor violation of 18 U.S.C. § 242 “is not a crime of violence.” 343 F.3d 423, 432 (5th Cir. 2003) (citation modified). Even if Padilla satisfied the first three prerequisites to plain-error relief, we would decline to exercise our discretion to correct the error because he has not carried his burden as to the fourth.

Under the fourth prong, '[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Olano , 507 U.S. 725, 736 (1993) (second alteration in original) (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936))). Padilla 'has the further burden to persuade the court” to correct the error. See United States v. Vonn , 535 U.S. 55, 63 (2002).

Padilla asserts that the district court’s erroneous conclusion that he was convicted of a crime of violence, which triggered application of the MVRA , 'by its very nature,' satisfies the fourth prong because the law 'fundamentally requires courts to comply with statutes,' and in United States v. Hankton , 51 F.4th 578 (5th Cir. 2022), we held that an erroneous application of the MVRA met this standard. But Hankton is materially distinguishable. In Hankton , this court corrected an erroneous restitution order under the MVRA . Id. at 595. There, three co-defendants were jointly and severally liable for a $1.6 million restitution order. Id. at 594 n.6, 595. Two argued that the restitution order was plainly erroneous because they Page 5were not convicted of crimes of violence, and the Government conceded the point. Id. at 595. The third belatedly raised the issue in his reply brief, though the error applied to him, too. Id. To avoid “compounding” the error so that the third co-defendant would have been liable for the entire restitution amount, and in light of the Government’s concession, this court vacated the restitution order as to the third co-defendant, as well. Id. Even if Hankton were not distinguishable, it would not control here because '[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis.” See Puckett v. United States , 556 U.S. 129, 142 (2009).

We agree with Padilla that the law “fundamentally requires courts to comply with statutes.” But even if the district court’s restitution order was outside of the MVRA , that alone cannot trigger our discretion. If a defendant need only show statutory non-compliance to obtain plain-error relief, correction would be automatic in every case involving statutory error. Our precedent makes clear that plain-error correction “is not automatic,” United States v. Brown , 826 F.3d 835, 840 (5th Cir. 2016), and “[r]eversing a district court for plain error should be ‘rare ,’” id. at 841 (quoting United States v. Escalante-Reyes , 689 F.3d 415, 426 (5th Cir. 2012) ( Smith , J. dissenting)). And in the punishment context, “[w]e have consistently held that it is not necessary to correct an error if” the record is “sufficient” to show that “the incorrect sentence was . . . fair.” Id.

Padilla concedes that, even if the MVRA does not apply, the district court could have imposed discretionary restitution under 18 U.S.C. § 3663(a)(1)(A). The district court considered the whole of the psychologist’s testimony during the restitution hearing, expressly noting that its credibility was supported by the emotional distress it had 'certainly' observed during R.A.'s oral victim impact statement at the sentencing hearing. It ordered Padilla to pay for R.A.’s therapy in an amount quantified by the psychologist's testimony to remedy the injury he inflicted on R.A.

Page 6while abusing his position as the sheriff, which it had identified at sentencing as 'a larger issue' that 'undermin[ed the] public's confidence in law enforcement.” See infra Section IV. On these facts, Padilla has not met his burden as to the fourth prong.

Padilla next argues that, even if the MVRA applies, the restitution order for future psychological care is unsupported by both law and adequate proof. Even if the MVRA does not apply to this case, we nevertheless disagree with Padilla.

Padilla asserts that the MVRA does not allow restitution for future psychological care. Even if he did not forfeit this issue by failing to assert it below, see Olano , 507 U.S. at 731, this court has already held that the MVRA permits restitution for 'future psychological care,' United States v. Serrata , 679 F. App’x 337, 340 (5th Cir. 2017) (per curiam) (unpublished). We see no reason to depart from Serrata.

Finally, Padilla contends that the Government failed to prove that the victim genuinely sought restitution for psychological treatment, and that Padilla caused the need for that treatment. We disagree.

Padilla asks us to doubt the district court’s credibility determinations. But we “give credence to . . . credibility choices and findings of fact . . . unless they are clearly erroneous.” United States v. Bass , 10 F.3d 256, 258 (5th Cir. 1993). The Government’s psychologist testified that the victim suffered from PTSD because of Padilla's use of force, needed psychological care, and wanted treatment. He explained his reasoning, and the district court found all of his testimony “credible.” “We will not second guess” that Page 7reasoning because Padilla has shown no clear error. See United States v. Garza , 118 F.3d 278, 283 (5th Cir. 1997).

T he judgment of the district court is AFFIRMED .