United States v. Wright

PER CURIAM:

Michael Wright pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to 18 U.S.C. § 2259, the district court ordered Wright to pay $529,661 in restitution to one of the children, “Amy,” portrayed in some of the images Wright possessed. Wright appeals this restitution order, arguing that § 2259 includes a proximate causation requirement and that the restitution order exceeds the amount of Amy’s losses that his offense caused. Because we cannot discern from the record any supportable rationale for the district court’s order of $529,661, we vacate the restitution order and remand for proceedings consistent with this opinion.

I.

Wright pleaded guilty to a one-count bill of information charging possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Wright entered into a plea agreement in which he waived his right to appeal but preserved his right to appeal “any punishment in excess of the statutory maximum.” The plea agreement stated that “the restitution provisions of Sections 8663 and 3663A of Title 18, United States Code will apply....” The plea agreement did not make reference to the distinct provisions regarding mandatory restitution for crimes of sexual exploitation against children, 18 U.S.C. § 2259.

During the guilty plea colloquy, the district court restated the terms of the plea agreement regarding Wright’s waiver of appeal, noting the exception for punishment in excess of the statutory maximum, and asked if Wright understood all of the rights he was waiving. Wright answered in the affirmative. The district court also asked Wright if he understood that “You also may be required to reimburse any victim for the amount of his or her loss under the Victim Restitution Law, if that term is applicable,” and Wright again answered affirmatively.

The Factual Basis of the guilty plea indicates that law enforcement agents found 30,000 images and videos on Wright’s computer showing sexually explicit images of children under 18 years of age, some less than 12 years of age. Some of the images were of identifiable children. According to the Pre-Sentence Report (“PSR”), the government was able to identify 21 children in the images, one of whom is called “Amy.” The PSR attached a victim impact statement by Amy.

Amy’s victim impact statement attests that Amy’s uncle began sexually abusing her when Amy was four years old. Her uncle distributed explicit images of the abuse to other people and such images have somehow been traded or have otherwise become available on the internet. Wright is one of hundreds, if not thousands, of individuals possessing Amy’s images. Amy is now a teenager. Thousands of images of Amy’s abuse have emerged in numerous child pornography cases since 1998.

Amy testifies in her statement that “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them.... It is hard to describe what it feels like to know that at *682any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle____” Amy’s psychologist, Dr. Silberg, submitted a report regarding the psychological trauma Amy experiences because of the images of her abuse being traded and viewed on the internet. Dr. Silberg determined that each discovery that another defendant viewed her images “re-traumatizes her again.”

Upon request of Amy’s law firm and based in part on Dr. Silberg’s report, the PSR recommended restitution to Amy in the amount of $3,367,854. This figure is based on Amy’s total losses. These losses include the total costs of her future psychological counseling, $512,681, based on an estimate that Amy will need counseling once weekly for the rest of her life, and Amy’s estimated lost future income of $2,855,173.

Wright filed a motion opposing restitution for lack of evidence that Amy’s losses were caused by his offense. Wright argued that § 2259 requires a showing of proximate causation and that no evidence indicated that Wright’s individual offense caused Amy’s psychological distress. Wright pointed out that he did not come into possession of the images until many years after the abuse occurred, and that no evidence suggests that Amy was ever aware that he personally possessed or viewed the images.

The government responded, attaching Amy’s firm’s supplemental memoranda and expert reports. The government asserted various legal theories regarding a broad view of causation under § 2259. The government argued that it was within the court’s discretion to award restitution for Amy’s entire set of damages.

The district court overruled Wright’s objection to restitution based on lack of causation, but did not elaborate on its reasoning, simply stating that upon consideration of the issue “the court concludes that some award of restitution is appropriate.... ” The court ordered Wright to pay Amy $529,661 in restitution, basing this amount on the total value of Amy’s anticipated future counseling expenses and expert services in tabulating the expenses as indicated in the PSR and attached reports. The district court stipulated that Wright’s duty to pay restitution would be “concurrent” with any other restitution orders of other defendants payable to this victim. The district court ordered that Wright’s obligation to pay begin immediately, but assuming that the obligation has not been satisfied upon his release from prison (after his 96-month sentence), ordered that Wright should pay $200 per month thereafter.

II.

The legality of a restitution order is reviewed de novo. United States v. Arledge, 553 F.3d 881, 897 (5th Cir.2008). If a restitution order is legally permitted, the amount of the order is reviewed for abuse of discretion. Id.; United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009). The validity of an appeal waiver is reviewed de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir.2005).

III.

This appeal presents issues related to the amount of restitution that a district court may order a defendant convicted of possessing child pornography to pay to one of the children depicted in the images. Similar issues have been raised in a large number of federal district and circuit courts in recent years. Many of these cases involve Amy, the same victim in this case. A panel decision of this court was very recently issued in a case raising simi*683lar, overlapping questions with regard to a different defendant convicted of possessing images of Amy. In re Amy, 636 F.3d 190 (5th Cir.2011).

Like the defendant in In re Amy and those in other similar cases, Wright argues that § 2259 requires a causal connection between his offense and the victim’s damages or recoverable losses. He asserts that his offense conduct did not cause Amy’s losses at all, much less in the amount of $529,661. In response, the government concedes on appeal that § 2259 does contain some kind of causation requirement. The government contends generally, however, that this requirement of § 2259 is to be liberally construed in favor of victim restitution and that the district court has wide discretion to order restitution.

As explained further below, the recent In re Amy panel opinion rejected the causation arguments made by Wright, holding that § 2259 does not limit Amy’s recoverable losses to those proximately caused by a defendant’s offense. See In re Amy, 636 F.3d at 198. We evaluate Wright’s appeal under this precedent.

A.

We first consider the government’s argument that Wright’s appeal is barred by his appeal waiver. “A defendant may waive his statutory right to appeal his sentence if the waiver is knowing and voluntary.” United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005). Wright’s waiver does not meet this standard because the record suggests that at the time he entered into the plea agreement, Wright was not aware that he might be ordered to pay a large restitution payment that possibly exceeds the losses to Amy proximately caused by his conduct. Wright’s plea agreement referred to the general restitution provisions of 18 U.S.C. §§ 3663 and 3663A, which both indisputably include proximate causation as a condition of restitution.1 Additionally, Wright’s plea agreement reserved the right to appeal “any punishment in excess of the statutory maximum.” Generally, a restitution order under § 3663 that exceeds the losses caused by the defendant’s offense exceeds the statutory maximum. See United States v. Norris, 217 F.3d 262, 271-72 (5th Cir.2000) (vacating a § 3663 restitution award for lack of evidence of causation); see also United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.1995) (vacating a § 3663 restitution order, despite an appeal waiver, because the order was not limited to losses caused by the defendant and thus exceeded the statutory maximum). In contrast, the In re Amy panel only recently interpreted § 2259 as not including the same proximate causation requirement of §§ 3663 and 3663A, long after Wright entered into the plea agreement. Thus, Wright did not knowingly waive his right to appeal a restitution order that is unlimited by the principle of proximate causation.

This conclusion is further supported by the fact that neither Wright’s plea agreement nor any plea-related documents refer to § 2259. The district judge’s reference during the guilty plea colloquy to “the Victim Restitution Law” is vague and could have been understood as a reference to § 3663 or § 3663A as cited in the plea agreement, both of which incorporate a proximate causation standard. We are persuaded by these facts that Wright was unaware of the potential scope of the district court’s restitution order. Under these circumstances, we conclude that *684Wright’s waiver of appeal regarding this restitution order was not knowing or voluntary.

B.

We next turn to the language of § 2259 and to Wright’s argument that this language requires a causal connection between his offense conduct and Amy’s recoverable losses. Section 2259(a) states that the court “shall order restitution for any offense under this chapter.” Section 2259(b)(1) states that the order of restitution shall direct the defendant to pay “the full amount of the victim’s losses ...” and § 2259(b)(3) defines these losses as follows:

“the term ‘full amount of the victim’s losses’ includes any costs incurred by the victim for—
(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) attorney’s fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.”

(emphasis added).

Wright argues that this statutory language requires a finding of proximate causation between his offense conduct and the amount of Amy’s losses that he is ordered to pay. In the recent In re Amy decision, however, the court rejected this very same argument. In re Amy, 636 F.3d at 198-99. The In re Amy panel reasoned that Amy was a “victim” of the defendant’s crime of possessing her images pursuant to the definition of “victim” in § 2259(c): “For purposes of this section, the term ‘victim’ means that the individual harmed as a result of a commission of a crime under this chapter.... ” Id. at 200.

Thus, based on this definition of “victim,” the In re Amy panel read § 2259 as having a “built-in” causation requirement and held that no further proximate causation requirement may be inferred from the remainder of § 2259’s language. Id. The opinion specifically rejected the argument that the “as a proximate result of the offense” language in § 2259(b)(3)(F) modifies the previous five sub-categories of losses in subsections (A) through (E). Id. at 198. The court limited the effect of that clause to the “catchall” provision of subsection (F) itself. Id. (“The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous “other losses” for which a victim seeks restitution.”). Therefore, the court held that the district court erred when it failed to order any restitution against the defendant on the grounds that “the government failed to prove ‘what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images.’ ” Id. (quoting United States v. Paroline, 672 F.Supp.2d 781, 783 (E.D.Tex.2009)).2

C.

Applying the authority of In re Amy to Wright’s appeal, we conclude that Amy is eligible for restitution as a “victim” of Wright’s crime of possessing images of her abuse pursuant to § 2259(c) and that *685the other provisions of § 2259, including § 2259(b)(3)(F), do not require additional proof of a causal connection between Wright’s offense conduct and Amy’s recoverable losses. With this understanding, we review the district court’s award for abuse of discretion and for any legal error.

The district court stated that it arrived at the amount of $529,661 by adding the PSR’s estimate of Amy’s future counseling costs for the rest of her life, $512,681, to the value of Amy’s expert witness fees. However, the district court gave no reasons why Wright should be required to pay this amount but not, for instance, also be required to pay for all or part of Amy’s projected lost income, $2,855,173. The record does not indicate why the court reduced the government’s requested award of $3,367,854 or how the court settled on the amount it chose to award. In sum, the district court did not explain its reasoning and the parties as well as this court are completely in the dark on why the district court settled on the amount of $529,661.

The government urged at oral argument (but not in its brief) that we should affirm this award based on the theory of joint and several liability. The In re Amy opinion approved basing an award on joint and several liability under the general restitution enforcement provisions of 18 U.S.C. § 3664, incorporated by § 2259(b)(2).3 Nevertheless, we cannot affirm the district court’s $529,661 restitution order on this basis because it is unclear if the district court intended the order to be joint and several.4 Even if we assume that the district court intended the order to be joint and several, the district court articulated no reason for holding Wright jointly and severally liable for Amy’s future psychological costs. Also, the district court’s award of restitution for the victim’s counseling costs and not for other losses belies the government’s argument that the district court intended to hold Wright jointly and severally liable under §§ 2259 and 3664 for all of Amy’s losses. Therefore, on this record, we decline to affirm the restitution order on the basis of joint and several liability.

We also cannot affirm the order on the basis that it represents the “fraction” of Amy’s losses “attributable” to Wright.5 The district court did not explain why it attributed the full amount of Amy’s future counseling costs (to the exclusion of other losses) to Wright, who was but one of hundreds if not thousands of individuals possessing Amy’s images. This is not a principled method of determining the fraction of losses attributable to Wright in a manner that is subject to meaningful review. The court must give some rationale for its order.6

*686In sum, although we agree with the government that the district court has wide discretion in fashioning restitution orders, this discretion is not unlimited and must be reviewed for abuse. Moreover, if there is “[a]ny dispute as to the proper amount or type of restitution” the court is obligated to resolve that dispute “by the preponderance of the evidence.” 18 U.S.C. § 3664(e). We conclude, therefore, that the district court’s failure to give a reasoned analysis of how it arrived at its award in a manner that allows for effective appellate review requires that we vacate the order and remand for reconsideration.7

On remand, the district court has two basic options under §§ 2259 and 3364, as well as the In re Amy decision. The district court may attempt to craft a joint and several restitution order that conforms to the generally recognized requirements of joint and several liability, as held by In re Amy. Alternatively, the district court may attempt to determine the “fraction” of Amy’s losses “attributable” to Wright, consistent with the In re Amy decision. Under any circumstances, the district court must set forth its reasoning, as supported by the record and the applicable authorities, so that the order may be subject to effective appellate review.

The restitution order is VACATED and the case REMANDED.

. Section 3663 governs discretionary restitution and § 3 663A governs mandatory restitulion for certain crimes. These statutes are discussed further in Part IV. of this opinion.

. We note that other circuit courts have not adopted the view of § 2259 articulated by In re Amy. See United States v. Monzel, 641 F.3d 528, 534-37 (D.C.Cir.2011); United States v. McDaniel, 631 F.3d 1204, 1209 (11th Cir. 2011); United States v. Laney, 189 F.3d 954, 965 (9th Cir.1999); United States v. Crandon, 173 F.3d 122, 126 (3d Cir.1999). This is discussed more thoroughly in the special concurrence to this opinion.

. See In re Amy, 636 F.3d at 201 (citing § 3664(m)(l)(A)(ii) for the proposition that a district court may enforce a restitution order "by all other available and reasonable means” and, thus, by joint and several liability).

. The district court stated that the order shall be "concurrent” with orders against other defendants payable to the same victim. The court did not use the words "joint and several” or cite § 3664. Although the government asserted at oral argument that the word "concurrent” referred to joint and several liability, in briefing the government disputed this interpretation of the court’s order.

. See In re Amy, 636 F.3d at 201 (stating that the district court may “quantify the amount of restitution to which Amy is entitled or the fraction attributable to [the defendant] Paroline.... ”) (emphasis added).

. The district court’s lack of reasoning for attributing this amount of Amy’s losses to Wright is illustrated by looking to other cases. The Eleventh and Ninth Circuits have affirmed restitution orders against similar defendants in the amounts of $12,700 and $3,000, respectively. See McDaniel, 631 F.3d at 1209; United States v. Baxter, 394 Fed.Appx. 377, 378-79 (9th Cir. Sept. 1, 2010).

. See generally United States v. Hai Waknine, 543 F.3d 546, 556 (9th Cir.2008) ("We conclude that § 3664 recognizes that specific findings of fact are necessary at times and contemplates that the district court will set forth an explanation of its reasoning, supported by the record, when a dispute arises as to the proper amount of restitution.").