United States Court of Appeals
For the First Circuit
No. 12-1639
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN K. ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.
Robert C. Andrews on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney, on brief for
appellee.
July 2, 2014
Per curiam. Following his conviction for possession of
child pornography, defendant Brian Rogers appealed both his
conviction and the district court's restitution order requiring him
to pay $3,150 to Vicky, the victim who appeared in at least nine
video clips found on his computer. We affirmed both the conviction
and the restitution order. See United States v. Rogers, 714 F.3d
82 (1st Cir. 2013). The Supreme Court granted certiorari, vacated,
and remanded for further consideration in light of its recent
decision in Paroline v. United States, 134 S. Ct. 1710 (2014). See
Rogers v. United States, 134 S. Ct. 1933 (2014). We have received
post-remand briefing from the parties. Defendant argues that the
sum of $3,150 does not accord with the causation requirements of
Paroline. He is wrong.
Paroline concerned the methodology to be used by the
district courts for crafting restitution orders, and confirmed such
awards were to be made in the exercise of the court's "discretion
and sound judgment." 134 S. Ct. at 1728. It did not change any of
the standards relevant to defendant's underlying conviction, and
defendant does not so argue. We adopt our prior reasoning as to
defendant's conviction. See Rogers, 714 F.3d at 86-88.
We also affirm the district court's restitution order.
We review restitution orders for abuse of discretion. United
States v. Kearney, 672 F.3d 81, 91 (1st Cir. 2012). Although the
district court did not have the benefit of Paroline at the time it
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made its decision, we conclude, applying Paroline, that the order
is not an abuse of discretion. Paroline requires district courts
to "determine the amount of the victim's losses caused by the
continuing traffic in the victim's images . . . , then set an award
of restitution in consideration of factors that bear on the
relative causal significance of the defendant's conduct in
producing those losses." 134 S. Ct. at 1728. Those factors
include:
the number of past criminal defendants found
to have contributed to the victim's general
losses; reasonable predictions of the number
of future offenders likely to be caught and
convicted for crimes contributing to the
victim's general losses; any available and
reasonably reliable estimate of the broader
number of offenders involved (most of whom
will, of course, never be caught or
convicted); whether the defendant reproduced
or distributed images of the victim; whether
the defendant had any connection to the
initial production of the images; how many
images of the victim the defendant possessed;
and other facts relevant to the defendant's
relative causal role.
Id.
The district court's decision comports with these
instructions. The court considered a chart submitted by the
government showing the individual amounts of restitution orders to
Vicky that had been entered in past cases. The district court
excluded past costs and based its award on an estimate of Vicky's
future therapy costs, occasioned by defendant's conduct. It first
limited the losses to general losses from "continuing" traffic in
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Vicky's images from the period when defendant had viewed them. It
then distinguished the future therapy losses attributable to
defendant from the harm resulting from other viewers and from
Vicky's therapy needs relating to her father and the difficulty of
her relationships with male friends. The court further considered
the fact that several other defendants had been sentenced and
ordered to pay restitution for possessing images of Vicky, and that
defendant viewed the images and may also have shared them through
a file sharing program. The court commented that it would select
a restitution figure representing the cost of 18 therapy visits,
but noted that 50 visits would also have been a reasonable
conclusion. The court picked a figure at the low end. On the
basis of these factors, the court entered a restitution order of
$3,150.
This order certainly was not an abuse of discretion in
light of Paroline. Consequently, we affirm the district court's
restitution order.
So ordered.
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