UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7480
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT CHARLES BURGESS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1)
Submitted: May 31, 2016 Decided: June 16, 2016
Before GREGORY, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr., was convicted after a jury
trial of knowingly possessing visual materials depicting a minor
engaging in sexually explicit conduct, which were shipped in
interstate commerce via computer, in violation of 18 U.S.C.
§ 2252(a)(4)(B) (2012), and knowingly receiving visual materials
depicting a minor engaging in sexually explicit conduct, which
were shipped in interstate commerce via computer, in violation
of 18 U.S.C. § 2252(a)(2). The district court sentenced Burgess
to a total of 292 months’ imprisonment and ordered that he pay
$305,219.86 in restitution under the Mandatory Restitution for
Sexual Exploitation of Children Act (MRSECA), 18 U.S.C. § 2259
(2012), for losses suffered by “Vicky,” a child victim portrayed
in pornographic material in Burgess’ possession. Burgess
appealed, and argued, among other matters, that the district
court had erred in ordering restitution to Vicky because it did
not determine that his conduct proximately caused harm to her.
This court agreed and held that 18 U.S.C. § 2259 “invokes the
well-recognized principle that a defendant is liable only for
harm that he proximately caused.” United States v. Burgess,
684 F.3d 445, 457 (4th Cir. 2012). This court vacated the
restitution order and remanded the case to the district court
“for an individualized determination of proximate causation” of
such losses and an appropriate award to Vicky if such causation
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was found. Id. at 460. This court affirmed Burgess’
convictions and all other aspects of his sentence. Id.
On remand, the district court entered an amended judgment
re-imposing the 292-month prison term and imposing $600 in
restitution. On appeal from the amended judgment, Burgess’
counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious
issues for appeal, but raising as issues for review whether the
district court abused its discretion in ordering that Burgess
pay the $600 restitution sum to Vicky and whether the court
erred in ordering Burgess to pay that sum to Vicky when the
facts supporting the award were never admitted by him or proven
beyond a reasonable doubt at trial. Burgess has filed three pro
se supplemental briefs. We affirm.
We review restitution orders for abuse of discretion.
United States v. Llamas, 599 F.3d 381, 391 (4th Cir. 2010).
A district court abuses its discretion when it “acts arbitrarily
or irrationally, fails to consider judicially recognized factors
constraining its exercise of discretion, relies on erroneous
factual or legal premises, or commits an error of law.” United
States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).
The MRSECA provides that a district court “shall order
restitution for any offense” under chapter 110 of Title 18 of
the United States Code, and that the restitution order “shall
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direct the defendant to pay the victim . . . the full amount of
the victim’s losses.” 18 U.S.C. § 2259(a), (b)(1). A “victim”
is “the individual harmed as a result of a commission of a crime
under this chapter.” 18 U.S.C. § 2259(c). Burgess was
convicted of violating 18 U.S.C. § 2252-a chapter 110
offense-and Vicky was the child victim portrayed in the
materials in Burgess’ possession. Burgess, 684 F.3d at 448. *
Burgess was “responsible for losses sustained by Vicky that he
proximately caused.” Burgess, 684 F.3d at 459; see Paroline v.
United States, 134 S. Ct. 1710, 1719-22 (2014) (holding that
restitution is “proper under § 2259 only to the extent the
defendant’s offense proximately caused a victim’s losses”).
In applying § 2259’s causation requirement, district courts
are not bound to apply any particular formula for determining
the proper restitution amount. Paroline, 134 S. Ct. at 1728.
Courts “might, [however,] as a starting point, 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
* Burgess’ arguments in his pro se briefs that he did not
possess images of Vicky are meritless. The district court was
precluded by the mandate rule from considering this issue on
remand. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007);
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
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significance of the defendant’s conduct in producing those
losses.” Id. These factors could 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.
We conclude that the district court did not abuse its
discretion in ordering Burgess to pay $600 in restitution to
Vicky. The district court considered Burgess’ relative role in
the causes underlying Vicky’s undisputed losses consistent with
Paroline and Burgess.
Counsel and Burgess also question whether the district
court erred in ordering payment of the $600 restitution sum to
Vicky when the facts supporting the order were never admitted by
Burgess or proven beyond a reasonable doubt at trial.
We conclude that Burgess fails to establish any plain error by
the district court in this regard. See United States v.
Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010) (plain error
review controls where defendant does not object to sentencing
ruling in district court). Burgess’ challenge to the conclusion
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that he could be held liable for restitution to Vicky in the
absence of a finding by the jury that he possessed and received
material containing her image was rejected as meritless in his
initial appeal. Burgess, 684 F.3d at 455 n.5. Counsel’s and
Burgess’ challenge premised on the lack of a jury verdict is
thus barred by the doctrine of the law of the case, and neither
counsel nor Burgess has suggested that any of the exceptions to
the doctrine apply. See United States v. Aramony, 166 F.3d 655,
661 (4th Cir. 1999) (discussing doctrine and exceptions
thereto). Further, the district court was precluded by the
mandate rule from considering on remand the challenge premised
on the lack of admission by Burgess to possessing and receiving
material containing Vicky’s image. See Doe, 511 F.3d at 465;
Bell, 5 F.3d at 66.
Finally, in accordance with Anders, we have reviewed the
remainder of the record in this case and the remainder of
Burgess’ pro se briefs and have found no meritorious issues for
appeal. We therefore affirm the amended judgment. This court
requires that counsel inform Burgess, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Burgess requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Burgess.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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