FILED
NOT FOR PUBLICATION APR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50573
Plaintiff - Appellee, D.C. No. 3:14-cr-00471-WQH-1
v.
MEMORANDUM*
SHANE TRAVIS MASSA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 10, 2016
Pasadena, California
Before: CLIFTON, CALLAHAN, and IKUTA, Circuit Judges.
Shane Massa pleaded guilty to possessing child pornography and was
ordered to pay restitution pursuant to 18 U.S.C. § 2259. He now appeals the district
court’s restitution order as to three of his victims. Although we approve most of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court’s treatment of restitution to these victims, it is necessary to vacate the
award and to remand for further proceedings.
In its restitution order, the district court identified several factors set forth in
Paroline v. United States, 134 S. Ct. 1710, 1722 (2014), for district courts to
consider in calculating restitution awards. These factors included the number of
past criminal defendants to have contributed to the victims’ general losses, whether
Massa reproduced or distributed images of the victims,1 whether Massa was
involved in the initial production of the images, and how many images of the
victims Massa had been found to possess. The court also noted how many
defendants in other cases had been ordered to pay restitution to the victims, the
range of the individual restitution orders, and the sum of the total restitution paid.
Taking all of these factors into account, and apparently relying on the number of
images of each victim found on Massa’s computer to determine “the defendant’s
1
Massa argues that it was error for the district court to consider the fact that
he made the files available on a file-sharing site in determining the restitution
amount, because the government had not proven that anyone had downloaded
images of the specific victims seeking restitution. But Massa does not contest that
he made the files available for download, and the district court need not provide
evidence sufficient to support a conviction for distributing child pornography
before it can consider that fact in crafting a restitution order. See, e.g., United
States v. Najjor, 255 F.3d 979, 984 (9th Cir. 2001) (“The district court has broad
discretion to determine the type and amount of evidence required to support an
award of restitution.”)
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relative role in the causal process that underlies [each] victim’s general losses,”
Paroline, 134 S. Ct. at 1727, the court awarded $8,000 to each of the victims
whose awards are at issue on appeal.
The district court “assess[ed] as best it [could] from available evidence the
significance of the individual defendant’s conduct in light of the broader causal
processes that produced the victim[s’] losses.” Id. at 1727-28. This was not a
“precise mathematical inquiry,” but it “cannot” be. Id. at 1728. It would have been
helpful for the court to have provided more detail as to how it reached the $8,000
figure for each victim, and we encourage the court to do so on remand, but the
awards appear “reasonable and circumscribed,” and neither “token or nominal” nor
“severe.” Id. at 1727. We conclude that the method the court used to reach the
award amounts was neither contrary to Paroline nor an abuse of the district court’s
discretion. See United States v. Gordon, 393 F.3d 1044, 1051 (9th Cir. 2004)
(restitution orders are reviewed for abuse of discretion providing that they are
within the bounds of the statutory framework).
The district court also did not err in failing to distinguish between losses
caused by the ongoing traffic in the victims’ images that happened before Massa
first accessed the images from the losses that happened after he first accessed the
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images. Paroline clarified that, in the “special context” of restitution for child
pornography victims:
where it can be shown both that a defendant possessed a victim’s
images and that a victim has outstanding losses caused by the
continuing traffic in those images but where it is impossible to trace a
particular amount of those losses to the individual defendant by
recourse to a more traditional causal inquiry, a court applying § 2259
should order restitution in an amount that comports with the
defendant’s relative role in the causal process that underlies the
victim’s general losses.
134 S. Ct. at 1728. This relaxed causation inquiry allows district courts to consider
“general losses” as a starting point for the restitution analysis, where “general
losses” refers to all of a victim’s losses stemming from traffic in his or her images
regardless of whether they were caused by any individual perpetrator at any
specific moment in time. Id.
However, the district court did erroneously accept inflated loss estimates
from each of the three victims whose awards are on appeal. This was not yet
clearly established in this circuit at the time the district court calculated its award,
but we have since interpreted Paroline to require that “the losses, including
ongoing losses, caused by the original abuse of [each] victim should be
disaggregated from the losses caused by the ongoing distribution and possession of
images of that original abuse, to the extent possible.” United States v. Galan, 804
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F.3d 1287, 1291 (9th Cir. 2015). While we concluded above that a victim’s
“general losses” include all losses stemming from the traffic in his or her images,
they do not include losses stemming from the original sexual abuse that the images
document. Id. The district court erred to the extent that it accepted the victims’
total damage estimates even though these estimates did not distinguish losses
caused by the initial sexual abuse from those caused by ongoing traffic in images
of the abuse.
We vacate the restitution order and remand for further proceedings.
VACATED and REMANDED.
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