United States v. Aumais, No. 10-3160 (2d Cir. 2011)
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Defendant pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. 2252A(a)(1), and (a)(5)(B). The district court sentenced defendant to 121 months' imprisonment and ordered him to pay restitution to finance future counseling costs of one of the victims depicted in the images and videos. On appeal, defendant challenged the restitution order and his sentence. The court agreed with defendant that, based on the facts in this case, defendant's possession of the victim's images was no a substantial factor in causing her loss. The court held, however, that the district court committed no procedural or substantive error in imposing the sentence of imprisonment. Accordingly, the court affirmed in part and reversed in part.
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10-3160-cr United States v. Aumais 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: June 15, 2011 Decided: September 8, 2011) Docket No. 10-3160-cr - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.GERALD AUMAIS, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WINTER and McLAUGHLIN, Circuit Judges. 26 27 28 29 Defendant-Appellant Gerald Aumais appeals from an 30 Amended Judgment of Conviction entered on August 3, 2010 in 31 the United States District Court for the Northern District 32 of New York (Sharpe, J.). 33 transporting and possessing child pornography in violation 34 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). 35 court sentenced Aumais to 121 months imprisonment and Aumais pleaded guilty to The district 1 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 2 restitution to finance future counseling costs of Amy, one 3 of the victims depicted in the images and videos. 4 appeal, Aumais challenges the restitution order on the 5 ground that his possession was not a proximate cause of her 6 loss. 7 procedural and substantive error in sentencing him to 121 8 months imprisonment. 9 in this case, Aumais possession of Amy s images was not a On Aumais also argues that the district court committed We conclude that: based on the facts 10 substantial factor in causing her loss; and that the 11 district court committed no procedural or substantive error 12 in imposing the sentence of imprisonment. 13 and reversed in part. 14 15 16 17 18 19 20 21 22 23 24 25 Affirmed in part GENE V. PRIMOMO, Assistant Federal Public Defender (Molly Corbett, on the brief), for Lisa Peebles, Federal Public Defender, Albany, New York, for Defendant-Appellant. PAUL D. SILVER, Assistant United States Attorney (Elizabeth Horsman, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee. DENNIS JACOBS, Chief Judge: Gerald Aumais ( Aumais ) appeals from an Amended 26 Judgment of Conviction entered on August 3, 2010 in the 27 United States District Court for the Northern District of 2 1 New York (Sharpe, J.). 2 transporting and possessing child pornography in violation 3 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). 4 court sentenced Aumais to 121 months imprisonment and 5 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 6 restitution to finance future counseling costs of Amy (a 7 pseudonym), one of the victims depicted in the images and 8 videos. 9 ground that his possession was not a proximate cause of Aumais pleaded guilty to The district Aumais challenges the restitution order on the 10 Amy s loss. Aumais also argues that the district court 11 committed procedural and substantive error in sentencing him 12 to 121 months imprisonment. 13 facts in this case, Aumais possession of Amy s images was 14 not a substantial factor in causing her loss; and that the 15 district court committed no procedural or substantive error 16 in imposing the sentence of imprisonment. 17 and reversed in part. We conclude that: based on the Affirmed in part 18 19 20 Background Aumais attempted to enter the United States from Canada 21 at the Fort Covington, New York Port of Entry in November 22 2008, where he was referred for secondary inspection. 3 A 1 search of his car revealed a cache of DVDs and other 2 electronic devices that stored thousands of still images of 3 child pornography and over one hundred such videos. 4 told border agents that he owned all of the electronic media 5 located in the car and admitted to downloading the child 6 pornography from a peer-to-peer network. 7 Aumais He was charged with: (1) transporting child pornography 8 in foreign commerce, in violation of 18 U.S.C. 9 § 2252A(a)(1); and (2) possessing child pornography that had 10 been transported in foreign commerce, in violation of 18 11 U.S.C. § 2252A(a)(5)(B). 12 entered a plea of guilty, without a written plea agreement, 13 to both counts of the indictment. 14 15 16 On February 4, 2009, Aumais A. Aumais Presentence Investigation Report ( PSR ) reflected a base offense level of 22.1 1 The offense level Aumais sought a two-level reduction, pursuant to U.S.S.G. § 2G2.2(b)(1), on the ground that his conduct was limited to the receipt or solicitation of child pornography. The PSR had scored an additional two levels based upon a statement Aumais allegedly made at the time of his arrest that he traded in child pornography. The district court held a brief evidentiary hearing to resolve the factual dispute. The Government called Immigration and Customs Enforcement Officer Tim Losito, who testified that, at the time of his arrest, Aumais stated that he traded in child pornography. Based on this testimony and on the volume of pornographic images in Aumais possession while he was 4 1 was increased two levels because some of the images were of 2 pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2); four 3 levels because the material contained sadistic images, see 4 U.S.S.G. § 2G2.2(b)(4); two levels because the offense 5 involved use of a computer, see U.S.S.G. § 2G2.2(b)(6); and 6 five levels based upon the number of images in Aumais 7 possession, see U.S.S.G. § 2G2.2(b)(7)(D). 8 level was reduced three levels for his early acceptance of 9 responsibility, see U.S.S.G. § 3E1.1(a)-(b). Aumais offense With a total 10 offense level of thirty-two and a Criminal History Category 11 of I, the recommended Guidelines range was 121 to 151 12 months imprisonment. 13 The PSR identified a victim known as Amy, who sought 14 $3.3 million in restitution pursuant to 18 U.S.C. § 2259. 15 Her Victim Impact Statement explained that she was unable to 16 forget the abuse she suffered at the hands of the uncle (who 17 took the pictures) because the disgusting images of what he 18 did to [her] are still out there on the internet. 19 she lives in fear that she will be recognized in the 20 pictures that remain on the internet and will be humiliated She said ostensibly on a one-week business trip, the district court found that Aumais had traded in some materials and denied Aumais request for a two-point reduction. 5 1 all over again. 2 The district court found that Aumais was a pedophile, 3 that he presented a danger to children (although the court 4 credited a polygraph result indicating that he had never 5 gone beyond viewing images), and that he was responsible for 6 harm caused to the children in the images. 7 court found that a sentence of 121-months imprisonment (the 8 low-end of the Guidelines range) was appropriate in view of 9 all the 18 U.S.C. § 3553(a) factors. The district Accordingly, the 10 district court imposed a sentence of 121 months 11 imprisonment on Count 1 and 120-months imprisonment on 12 Count 2, to run concurrently, and a five-year term of 13 supervised release. 14 of restitution and referred the matter to a magistrate judge 15 for consideration. The district court bifurcated the issue 16 B. 17 On December 22, 2009, Magistrate Judge David Homer 18 conducted an evidentiary hearing on restitution. The only 19 witness to testify, Government witness Dr. Joyanna Silberg, 20 had evaluated Amy at the request of Amy s attorney, James 21 Marsh, on June 11-12, 2008, July 29, 2008, and November 10, 22 2008. Dr. Silberg recounted that Amy had been sexually 6 1 abused by her uncle between the ages of 4 and about 7 or 8, 2 that Amy underwent treatment after suffering the abuse, and 3 that the treatment allowed Amy to function[] pretty well 4 normally until she learned that her image was being traded 5 on the internet, after which she experienced a fear of 6 being at parties, fear of being in public gatherings, and 7 had difficulty coping with her life because of her sense of 8 pervasive helplessness about the fact that people were 9 viewing her image. Government Appendix 30-31. 10 Amy discovered that her images were on the internet 11 when she received victim notifications from The National 12 Center for Missing and Exploited Children ( NCMEC ), which 13 compares images of child pornography, identifies those 14 depicted within, and then notifies the victim every time 15 someone is arrested who is found to possess that victim s 16 image. 17 caused emotional and psychological problems: she bit her 18 nails to the point of bleeding, took to alcohol, and could 19 not finish college. 20 direct victim of Aumais conduct and that Mr. Aumais 21 represent[ed] one component of the damages, because Mr. 22 Aumais is one of the individuals arrested for having looked Knowledge that her images were still being viewed Dr. Silberg concluded that Amy was a 7 1 at her picture and possessing it. 2 41-43. 3 See Government Appendix Finally, although Dr. Silberg s contact with Amy was 4 evaluative rather than therapeutic, she recommended that Amy 5 receive therapy once a week from a professional trained in 6 the effects of sexual abuse and trauma on people in Amy s 7 age group. 8 courses of inpatient treatment throughout her life to deal 9 with her alcoholism. 10 Dr. Silberg opined that Amy might need three On January 13, 2010, the magistrate judge issued a 11 Report and Recommendation that Aumais should be ordered to 12 pay Amy $48,483 in restitution. 13 No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13, 14 2010) ( Aumais I ). 15 recover restitution, Amy must show that Aumais possession 16 of her images proximately caused her harm. 17 so, Amy could be entitled to payments for future medical 18 costs if those expenses can be reasonably estimated. 19 at *3 (citing United States v. Pearson, 570 F.3d 480, 486-87 20 (2d Cir. 2009) (per curiam)). 21 observed, however, that the issue of whether a defendant 22 convicted only as a consumer of child pornography may be United States v. Aumais, The court determined that in order to Id. at *2. If Id. The magistrate judge 8 1 liable for restitution under § 2259 to a child victim 2 remained unaddressed by the Second Circuit. 3 Id. According to the Report and Recommendation, [t]here is 4 no question that consumers, such as Aumais, contribute to 5 the exploitation of child victims, such as Amy, depicted in 6 the child pornography they possess. 7 recognized that the uncle s horrific acts of sexual abuse, 8 production of the images, and distribution of those images 9 to others unquestionably constituted the principal cause of Id. at *4. 10 the losses identified by Amy. 11 (it was concluded), if the harm caused by Aumais 12 possession of Amy s images caused substantial harm to Amy, 13 proximate cause has been demonstrated even if the conduct of 14 others similar to that of Aumais caused equal or greater 15 harm. 16 Id. at *5. The court At the same time Id. Based on Amy s Victim Impact Statement and Dr. 17 Silberg s testimony, the magistrate judge found that, 18 although Amy had neither contact with Aumais nor knowledge 19 of his existence, his possession of her images exacerbated 20 the harm (originally caused by her uncle) by creating a 21 market for distribution, and by inflicting the humiliation 22 of knowing that the images are out there being exploited by 9 1 a group of consumers, of whom Aumais was one. 2 Although Aumais may be among hundreds or thousands of such 3 others, it was found that Amy s harm was not thereby 4 obviated or diminished; rather, it exacerbate[d] the harm 5 by confirming how expansive has become the number of 6 individuals exploiting Amy s images. 7 Id. at *6. Id. The findings as to damages are thorough and 8 discriminating, as follows. Where a party is responsible 9 for exacerbating a pre-existing condition, damages are 10 generally limited to that attributable to the exacerbation 11 and not the original injury. 12 failed to prove by a preponderance of evidence that Aumais 13 proximately caused harm that resulted in Amy s difficulties 14 maintaining employment. 15 by a preponderance of evidence that Aumais caused the need 16 for weekly counseling sessions in the next five years and 17 monthly counseling sessions for five years thereafter. 18 at *8-9. 19 value, the magistrate judge found that the Government proved 20 by a preponderance of evidence that Amy is entitled to 21 $48,483. 22 Id. Id. at *7. The Government But the Government did prove Id. Discounting future counseling costs to present Id. at *9. As to joint and several liability, the magistrate judge 10 1 found that Aumais should be liable for the full amount and 2 that it was a matter for administration by the government 3 to prevent excess recovery. Id. 4 The district court adopted Magistrate Judge Homer s 5 Report and Recommendation, and entered judgment on August 3, 6 2010. 7 3034730 (N.D.N.Y. Aug. 3, 2010) ( Aumais II ). United States v. Aumais, No. 08-CR-711, 2010 WL 8 9 10 Discussion We review an order of restitution deferentially, and 11 we will reverse only for abuse of discretion. 12 such abuse, we must conclude that a challenged ruling rests 13 on an error of law, a clearly erroneous finding of fact, or 14 otherwise cannot be located within the range of permissible 15 decisions. 16 States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)). 17 To identify Pearson, 570 F.3d at 486 (quoting United We review a district court s sentencing decision for 18 reasonableness. See United States v. Booker, 543 U.S. 220, 19 260-62 (2005). 20 reasonableness under a deferential abuse-of-discretion 21 standard. 22 Cir. 2008) (en banc). We review the sentence for substantive United States v. Cavera, 550 F.3d 180, 189 (2d The Court will not substitute [its] 11 1 own judgment for the district court s ; rather, a district 2 court s sentence may be set aside only in exceptional cases 3 where [its] decision cannot be located within the range of 4 permissible decisions. 5 omitted). Id. (internal quotation marks 6 7 8 I. As Magistrate Judge Homer observed, this Circuit has 9 yet to address the issue of whether a defendant convicted 10 only as a consumer of child pornography may be liable for 11 restitution under [18 U.S.C.] § 2259 to a child victim. 2 12 Aumais I, 2010 WL 3033821, at *3. 13 Section 2259 mandates a district court to order a 14 defendant to pay a victim, defined as an individual 15 harmed as a result of a commission of a crime under this 16 chapter, 18 U.S.C. § 2259(c), the full amount of the 17 victim s losses, id. § 2259(b)(1). 18 include: 19 The victim s losses any costs incurred by the victim for-2 In United States v. Pearson, we considered whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses; but the defendant had produced child pornography and had had direct contact with the two child victims. 570 F.3d at 482, 48687. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 (A) medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys fees, as well as other costs incurred; and (F) any other losses suffered by the victim as a proximate result of the offense. Id. § 2259(b)(3)(A)-(F). An order of restitution under 19 [§ 2259] shall be issued and enforced in accordance with 20 section 3664 in the same manner as an order under section 21 3663A. 22 [t]he burden of demonstrating the amount of the loss 23 sustained by a victim as a result of the offense shall be on 24 . . . the Government. 25 establish that Amy is a victim who was harmed as a result of 26 Aumais possession of her images. 27 28 Id. § 2259(b)(2). Under 18 U.S.C. § 3664(e), So it was for the Government to A. The United States Supreme Court has recognized that the 29 distribution of child pornography is intrinsically related 30 to the sexual abuse of children because, inter alia, the 31 materials produced are a permanent record of the children s 13 1 participation and the harm to the child is exacerbated by 2 their circulation. 3 (1982); see also United States v. McDaniel, 631 F.3d 1204, 4 1208 (11th Cir. 2011). 5 reduced to a recording, the pornography may haunt [the 6 child] in future years, long after the original misdeed took 7 place. 8 marks omitted). 9 10 New York v. Ferber, 458 U.S. 747, 759 Because the child s actions are Ferber, 458 U.S. at 759 n.10 (internal quotation We conclude that Amy is a victim as defined by § 2259(c). 11 12 B. A circuit split has opened as to whether the Government 13 must show that a victim s losses (identified in 18 U.S.C. 14 § 2259(b)(3)(A)-(F)) were proximately caused by the 15 defendant s actions, or whether it is enough to show 16 causation more generally. 17 that a showing of proximate cause is required, some rely on 18 the text of the statute and others on general rules of 19 criminal and tort law. 20 And within those circuits holding Of the circuits that have reached the causation issue, 21 most have held that the text of § 2259 requires a showing of 22 proximate cause. See McDaniel, 631 F.3d at 1209; United 14 1 States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999); United 2 States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). 3 circuits have read the last phrase of § 2259(b)(3)(F) (see 4 supra at 13)-- suffered by the victim as a proximate result 5 of the offense --to apply to all the types of loss in 6 § 2259(b)(3). These As the court in McDaniel observed: 7 8 9 10 11 12 13 14 15 16 17 18 19 When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all. Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase as a proximate result of the offense is equally applicable to medical costs, lost income, and attorneys fees as it is to any other losses. Because the language of the statute is plain, our inquiry ends here. 631 F.3d at 1209 (internal citation omitted). 20 Circuit, likewise holding that § 2259 requires a finding of 21 proximate cause, based its ruling on traditional principles 22 of tort and criminal law and on § 2259(c) s definition of 23 victim as an individual harmed as a result of the 24 defendant s offense. 25 528, 535 (D.C. Cir. 2011). 26 of both tort and criminal law that a defendant is only 27 liable for harms he proximately caused, the court concluded 28 that nothing in the text or structure of § 2259 leads us to The D.C. United States v. Monzel, 641 F.3d After reciting the bedrock rule 15 1 conclude that Congress intended to negate the ordinary 2 requirement of proximate cause. 3 omitted). Id. at 535-36 (footnote 4 The only circuit to hold that a finding of proximate 5 cause is not required, the Fifth Circuit, read the phrase 6 as a proximate result of the offense in § 2259(b)(3)(F) to 7 apply only to that catchall provision, as opposed to all 8 of the loss provisions set forth in § 2259(b)(3): 9 10 11 12 13 14 15 16 17 18 19 20 The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous other losses for which a victim seeks restitution. As a general proposition, it makes sense that Congress would impose an additional restriction on the catchall category of other losses that does not apply to the defined categories. By construction, Congress knew the kinds of expenses necessary for restitution under subsections A through E; equally definitionally, it could not anticipate what victims would propose under the open-ended subsection F. 21 In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). 22 Fifth Circuit also relied on the manifestation of a 23 congressional purpose to award broad restitution to 24 justify its limitation of proximate cause only to the loss 25 identified in subsection F. 26 The Id. at 199. We agree with the majority of circuits and hold that 27 under § 2259, a victim s losses must be proximately caused 28 by the defendant s offense. We endorse the D.C. Circuit s 16 1 reasoning in Monzel: proximate cause is a deeply rooted 2 principle in both tort and criminal law that Congress did 3 not abrogate when it drafted § 2259. 4 at 535-36; United States v. U.S. Gypsum Co., 438 U.S. 422, 5 437 (1978) ( Congress [is] presumed to have legislated 6 against the background of our traditional legal concepts 7 which render [proximate cause] a critical factor, and 8 absence of contrary direction here [is] taken as 9 satisfaction [of] widely accepted definitions, not as a See Monzel, 641 F.3d 10 departure from them. (quoting Morissette v. United States, 11 342 U.S. 246, 263 (1952)) (internal quotation marks 12 omitted)); see also Hemi Group, LLC v. City of New York, --- 13 U.S. ---, 130 S. Ct. 983, 989 (2010) ( [P]roximate cause 14 thus requires some direct relation between the injury 15 asserted and the injurious conduct alleged. (quoting 16 Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 17 (1992))). 18 and Witness Protection Act of 1982, 18 U.S.C. §§ 1512 1515, 19 3663 3664, and the Mandatory Victims Restitution Act of 1996 20 ( MVRA ), 18 U.S.C. §§ 3663A, 3613A, both of which define 21 victim as a person directly and proximately harmed as a 22 result of the commission of an offense for which restitution The text of § 2259 cross-references the Victim 17 1 2 may be ordered, §§ 3663(a)(2), 3663A(a)(2). Proximate cause labels generically the judicial 3 tools used to limit a person s responsibility for the 4 consequences of that person s own acts. 5 notion of proximate cause reflects ideas of what justice 6 demands, or of what is administratively possible and 7 convenient. 8 D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of 9 Torts § 41, at 264 (5th ed. 1984)). At bottom, the Holmes, 503 U.S. at 268 (quoting W. Keeton, Proximate cause demands 10 some direct relation between the injury asserted and the 11 injurious conduct alleged. Id. 12 The magistrate judge based his finding of proximate 13 cause on the following facts, taken from Amy s Victim Impact 14 Statement and Dr. Silberg s testimony: Amy suffered 15 understandable trauma from the abuse of her uncle . . . [and 16 t]he fact that the images of that abuse exist and remain in 17 circulation exacerbates the harm ; the viewers of Amy s 18 images contribute to the humiliation and degradation that 19 Amy suffers and constitute an independent component of harm 20 which exacerbates the trauma initiated by the uncle and 21 generates a need for continuing therapy ; Amy s abuse was 22 memorialized in pictures that continue to be circulated, so 18 1 that she can never regard [her] victimization as terminated 2 or as a past event to which [she] must adjust ; and Aumais 3 viewing of Amy s images leaves Amy and similar victims with 4 feelings that they will never be safe, of helplessness, and 5 of constant fear that they will be recognized from those 6 images by friends and strangers. 7 3033821, at *6. 8 even though there may be hundreds or thousands of others 9 who, like Aumais, have possessed and used Amy s images and 10 thereby contributed to her harm, Aumais conduct remains a 11 substantial cause of that harm because it exacerbates the 12 harm by confirming how expansive has become the number of 13 individuals exploiting Amy s images. Aumais I, 2010 WL Moreover, the magistrate judge found that Id. 14 We review a district court s findings of fact for clear 15 error, but we review de novo a district court s application 16 of th[e] facts to draw conclusions of law, including a 17 finding of liability. 18 World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994). 19 called mixed questions of law and fact are also reviewed de 20 novo. 21 are supported by evidence, we disagree that those facts 22 establish a causal connection between Aumais possession of Id. Travellers Int l, A.G. v. Trans So While the magistrate judge s findings of fact 19 1 2 Amy s images and Amy s losses. The magistrate judge found that Amy had no direct 3 contact with Aumais nor even knew of his existence. Aumais 4 I, 2010 WL 3033821, at *6. 5 makes no mention of Aumais (or any other possessor of her 6 images for that matter). 7 of Amy, upon which the doctor s testimony was based, took 8 place on June 11-12, 2008, July 29, 2008, and November 10, 9 2008, whereas Aumais was not arrested at the border until Amy s Victim Impact Statement Moreover, Dr. Silberg s evaluation 10 November 16, 2008. 11 what Amy suffers from knowing that people possess her 12 images, Dr. Silberg cannot speak to the impact on Amy caused 13 by this defendant. 14 another of Amy s claims: 15 16 17 18 19 20 21 22 23 While Dr. Silberg may describe generally As the Ninth Circuit held in rejecting [T]he government s evidence showed only that [the defendant] participated in the audience of persons who viewed the images of Amy . . . . While this may be sufficient to establish that [the defendant s] actions were one cause of the generalized harm Amy . . . suffered due to the circulation of [her] images on the internet, it is not sufficient to show that they were a proximate cause of any particular losses. 24 United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 25 2011). 26 possession to any loss suffered by Amy, we cannot agree with Here, in the absence of evidence linking Aumais 20 1 the magistrate judge s conclusion that Aumais conduct 2 remains a substantial cause of [Amy s] harm. 3 2010 WL 3033821, at *6. 4 Aumais I, This opinion does not categorically foreclose payment 5 of restitution to victims of child pornography from a 6 defendant who possesses their pornographic images. 7 no basis for rejecting Dr. Silberg s findings that Amy has 8 suffered greatly and will require counseling well into the 9 future. We have But where the Victim Impact Statement and the 10 psychological evaluation were drafted before the defendant 11 was even arrested--or might as well have been--we hold as a 12 matter of law that the victim s loss was not proximately 13 caused by a defendant s possession of the victim s image. 14 C. 15 A proximate cause of injury can be expected to lend 16 itself more easily to assessment and allocation than a cause 17 that is generalized or inchoate. 18 Aumais conduct was not a proximate cause of Amy s injury-- 19 is thus confirmed by the baffling and intractable issue that 20 this case would otherwise present in terms of damages and 21 joint and several liability.3 3 Our conclusion--that We note one additional issue (on top of the issues discussed in this section). In Aumais II, 2010 WL 3034730, 21 1 With respect to the amount of restitution, the district 2 court ordered Aumais to pay $48,483 to cover Amy s future 3 counseling costs. 4 as the magistrate judge determined, [t]he harm from the 5 uncle s abuse and that from possession of the images of the 6 abuse by others are closely related for purposes of 7 counseling and cannot be separate[d] to allocate costs 8 between them as it appears that Amy will require counseling 9 for both. Aumais I, 2010 WL 3033821, at *8-9. Id. at *8. But, If Amy s future counseling costs are 10 thus partly caused by her uncle s abuse, then Aumais cannot 11 be responsible for all of those losses--a problem under the 12 wording of § 2259, which mandates that Aumais make 13 restitution for the full amount of Amy s losses caused as a 14 result of Aumais possession. 15 illustrated by the disparate amounts of restitution ordered 16 throughout the country, ranging from $3,000, see United This difficulty is at *1, the district court adopted the magistrate judge s Report and Recommendation and ordered that an Amended Judgment be issued. However, in the Amended Judgment, the district court did not check the box indicating that Aumais liability was joint and several with other defendants. See Government Appendix 64-65. While it is settled that where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment . . . the oral pronouncement, as correctly reported, must control, United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974) (internal quotation marks omitted), it is unclear whether this is true with respect to restitution orders. 22 1 States v. Mather, 1:09-CR-412, 2010 WL 5173029, at *5-6 2 (E.D. Cal. Dec. 13, 2010), to $3,680,153, see United States 3 v. Staples, 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla. 4 Sept. 2, 2009). 5 A restitution award to Amy in this case would raise 6 issues as to joint and several liability. As of the date of 7 the restitution hearing, Amy had sought restitution in over 8 250 cases around the country. 9 *5. Aumais I, 2010 WL 3033821, at In one such case, United States v. Faxon, 689 F. Supp. 10 2d 1344, 1346, 1353 (S.D. Fla. 2010), Amy s lawyer estimated 11 that as of January 2010, Amy had received approximately 12 $170,000 from restitution orders and settlements. 13 In United States v. Nucci, 364 F.3d 419 (2d Cir. 2004), 14 we held that a victim may not recover more than his or her 15 actual loss. 16 of the MVRA, id. at 423, do not in themselves prevent 17 double-recovery in the criminal context.4 4 There, we observed that the relevant sections However, In Nucci, we observed Section 3664(f)(1)(A) requires the district court to order restitution in the full amount of the victim s losses and does not mention what the order should provide when multiple defendants are responsible for the same loss. Section 3664(h) provides that, where there are multiple defendants, the district court may order each defendant to pay the full amount or order that 23 1 recognizing that [a]t common law, joint and several 2 liability does not permit double recovery, we declined to 3 read[] the statute to provide recovery in excess of the 4 amount of the loss, and accordingly applied the common law 5 rule. 6 Id. Section 2259(b)(4)(B) provides that [a] court may not 7 decline to issue an order under this section because of--(i) 8 the economic circumstances of the defendant; or (ii) the 9 fact that a victim has, or is entitled to, receive 10 compensation for his or her injuries from the proceeds of 11 insurance or any other source. 12 indicates that because Amy may already have been fully 13 compensated by others for the loss found in this case, there 14 would be no legal basis to permit an award that allows a 15 victim to recover more than his due. 16 424. 17 restitution award would need to be carefully monitored to 18 ensure that total payments by all defendants did not exceed Our holding in Nucci Nucci, 364 F.3d at It is in any event likely that the collection of a liability be apportioned to reflect each defendant s contribution to the loss. Section 3664(j)(2) does limit restitution that would result in an overpayment to the victim, but only where compensatory damages are later recovered by the victim in a civil proceeding. Id. (footnote omitted). 24 1 what Amy has been awarded for future counseling costs. 2 need for such monitoring would pose significant practical 3 difficulties. 4 clear what government body, if any, is responsible for 5 tracking payments that may involve defendants in numerous 6 jurisdictions across the country. 7 what amount Amy has received would entail collecting data 8 about hundreds of cases, ascertaining what money has 9 actually been paid, and determining what losses that money 10 11 The As an initial matter, it is not entirely In addition, determining was intended to cover. Finally, as discussed above, § 2259(b)(2)--dealing with 12 the enforcement of the restitution order--cross references 13 § 3664. 14 liability may be imposed only when a single district judge 15 is dealing with multiple defendants in a single case (or 16 indictment); so it would seem that the law does not 17 contemplate apportionment of liability among defendants in 18 different cases, before different judges, in different 19 jurisdictions around the country.5 Section 3664(h) implies that joint and several 5 In fact, two other circuits have observed, in unpublished opinions, that joint and several liability is not permissible under § 3664(h) regarding defendants in separate cases. See Monzel, 641 F.3d at 539 (citing United States v. McGlown, 380 F. App x 487, 490-91 (6th Cir. 2010); United States v. Channita, 9 F. App x 274, 274-75 (4th Cir. 25 1 2 II. 3 Aumais argues that the district court committed 4 procedural and substantive errors in sentencing Aumais to 5 121 months imprisonment--the bottom of the Guidelines 6 range. 7 that the district court treated the Sentencing Guidelines as 8 mandatory and presumptively reasonable. 9 refuted by the record. As to procedural reasonableness, Aumais contends This argument is The district court conducted an 10 individualized assessment of the sentence warranted by 11 § 3553(a) based on the facts presented, Gall v. United 12 States, 552 U.S. 38, 50 (2007), and concluded that nothing 13 below the minimum of the advisory guideline [and] nothing 14 above the minimum of the advisory guideline range is 15 necessary in light of the various factors that are at play 16 here. Government Appendix at 22-23. 17 As to substantive reasonableness, Aumais principally 18 relies on our recent decision in United States v. Dorvee, 19 616 F.3d 174 (2d Cir. 2010), to support his argument that 20 the sentence was greater than necessary to serve the 21 purposes of sentencing. This argument, too, is without 2001)). 26 1 merit. 2 Dorvee observed that U.S.S.G. § 2G2.2, the Guideline at 3 issue here, can, unless applied with great care, . . . lead 4 to unreasonable sentences that are inconsistent with what 5 § 3553 requires because the enhancements in that Guideline 6 routinely result in Guidelines projections near or 7 exceeding the statutory maximum, even in run-of-the-mill 8 cases. 9 pornography enhancements applied in Dorvee resulted in a 616 F.3d at 184, 186. The various child 10 Guidelines range that, at the low end, was twenty-two months 11 longer than the statutory maximum. 12 Guidelines range calculated in this case (121-151 months) 13 was well short of the statutory maximum, which was thirty 14 years (had the district court chosen to impose consecutive 15 sentences). 16 months imprisonment was sufficient, but not greater than 17 necessary to comply with the purposes of § 3553(a), id. at 18 182 (quoting United States v. Samas, 561 F.3d 108, 110 (2d 19 Cir. 2009), given the violent nature of the images, the 20 number of them, and other considerations. 21 substantively reasonable. Id. at 180. The Moreover, the district court found that 121 22 27 The sentence is 1 2 3 CONCLUSION For the foregoing reasons, the amended judgment of conviction is affirmed in part and reversed in part. 28
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