United States v. Sanderson

11-2488-cr(L) United States v. Sanderson UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 21st day of March, two thousand thirteen. 5 6 PRESENT: RICHARD C. WESLEY, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges, 9 VINCENT L. BRICCETTI, 10 District Judge.* 11 12 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 19 -v.- Nos. 11-2488-cr(L), 20 11-2608-cr(CON), 21 12-321-cr(CON) 22 JARELL SANDERSON, HASSANAH DELIA 23 24 Defendants-Appellants. 25 26 27 FOR SANDERSON: RANDOLPH Z. VOLKELL, Merrick, NY. 28 29 FOR DELIA: RANDALL D. UNGER, Bayside, NY. * The Honorable Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. 1 FOR APPELLEE: DAVID E. NOVICK, Assistant United States 2 Attorney (Sandra S. Glover, Assistant 3 United States Attorney, on the brief), 4 for David B. Fein, United States Attorney 5 for the District of Connecticut. 6 7 Appeal from the United States District Court for the 8 District of Connecticut (Kravitz, J.). 9 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 11 AND DECREED that the order is AFFIRMED. 12 Defendants-appellants Jarell Sanderson and Hassanah 13 Delia appeal from judgments of conviction entered against 14 them by the United States District Court for the District of 15 Connecticut (Kravitz, J.) following guilty pleas by both 16 defendants. Sanderson challenges the district court’s 17 imposition of a Sentencing Guidelines enhancement, and Delia 18 challenges the court’s restitution order. We assume the 19 parties’ familiarity with the facts and procedural history 20 of the case. 21 I. Sanderson 22 Sanderson pled guilty to two counts of Sex Trafficking 23 of a Minor, in violation of 18 U.S.C. § 1591(a) and (b), and 24 one count of Conspiracy to Commit Sex Trafficking of a 25 Minor, in violation of 18 U.S.C. § 1594(c). He contends on 26 appeal that the district court erred in imposing a two-level 27 enhancement under U.S.S.G. § 2G1.3(b)(2)(B), which applies 2 1 if “a participant [] unduly influenced a minor to engage in 2 prohibited sexual conduct.” We review a legal application 3 of the Guidelines de novo and any underlying factual 4 findings for clear error. United States v. Cossey, 632 F.3d 5 82, 86 (2d Cir. 2011) (per curiam). 6 The commentary to § 2G1.3(b)(2)(B) indicates that there 7 is a “rebuttable presumption that subsection (b)(2)(B) 8 applies” if the participant is at least ten years older than 9 the minor. Sanderson does not dispute that he is. 10 Moreover, although Sanderson is correct that factual 11 determinations underlying a Guidelines calculation must be 12 made “with sufficient clarity to permit meaningful appellate 13 review,” United States v. Skys, 637 F.3d 146, 152 (2d Cir. 14 2011), “this obligation may be satisfied by explicitly 15 adopting the factual findings set forth in a defendant’s 16 presentence report.” United States v. Watkins, 667 F.3d 17 254, 261 (2d Cir. 2012) (internal quotation marks and 18 brackets omitted). The district court in this case stated 19 that it was “adopt[ing] the factual statements in the 20 presentence report as the Court’s own findings of fact for 21 purposes of this sentencing.” Special App’x 51. 22 3 1 We have held that if a defendant is subject to the age- 2 based presumptive application of (b)(2)(B) and has “failed 3 to offer any evidence rebutting the presumption on this 4 basis,” the district court is “free to make its finding of 5 ‘undue influence,’ without further explanation, on the basis 6 of the unrebutted presumption alone.” Watkins, 667 F.3d at 7 265. In addition, a “district court that adopts the factual 8 findings of a defendant’s PSR is not required explicitly to 9 provide any further analysis.” Id. at 266. None of the 10 statements to which Sanderson points on appeal can be 11 construed as evidence rebutting the presumption. As such, 12 we find no error in the district court’s application to 13 Sanderson of the two-level enhancement under § 14 2G1.3(b)(2)(B). 15 II. Delia 16 Delia’s only assertion on appeal is that the district 17 court failed to adequately support its imposition of 18 $25,608.80 in restitution for a victim’s future 19 psychological and psychiatric treatment. During Delia’s 20 sentencing, the district indicated that restitution would be 21 a part of the sentence but did not specify an amount. After 22 the government submitted a proposed amount, supported by a 4 1 letter from a social worker who had worked extensively with 2 the victim after the encounter at issue in this case, the 3 district court entered an order adopting the government’s 4 proposed figure without further explanation. 5 “We review an order of restitution deferentially, and 6 we will reverse only for abuse of discretion.” United 7 States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009) 8 (quotation marks omitted). Delia does not argue that the 9 district court lacked the power to order restitution for 10 future treatment. Instead, she points to our recognition 11 that such orders “may be inappropriate where the amount of 12 loss is too difficult to confirm or calculate.” Id. at 486 13 (quotation marks and brackets omitted). She maintains that, 14 as in Pearson, the district court here “did not explain how 15 it estimated the victim[‘s] future expenses” and urges us to 16 “remand the case [] to secure a more thorough explanation 17 from the district court as to the basis for its restitution 18 determination.” Id. at 487. 19 Because the district court adopted the government’s 20 proposed figure in this case, the major problem in Pearson – 21 the court’s failure to explain how it reached its ultimate 22 figure, which differed from what had been proposed – is not 5 1 present. Delia’s challenge is more properly viewed as a 2 contention that the social worker’s letter did not provide a 3 sufficient basis in evidence for the district court to come 4 to its conclusion. 5 Delia’s concerns are not frivolous, and we recognize 6 the difficulty inherent in projecting future medical costs 7 with certainty and the necessity of basing a restitution 8 amount on reliable evidence. However, we find no error in 9 the district court’s order. The government’s proposed 10 figure was supported by the affidavit of a licensed social 11 worker who had worked extensively with the victim, and who 12 stated that she based her conclusions regarding future need 13 for care upon her professional experience. The social 14 worker’s total cost estimate was much higher than the 15 restitution amount ultimately imposed – it was discounted 16 (based on the social worker’s calculation) to reflect other 17 sources of trauma in the victim’s life, and it did not 18 account for possible inflation or increases in the cost of 19 care. Moreover, although Delia filed objections to the 20 government’s submission, she neither requested a hearing at 21 which the social worker could be cross-examined nor 22 submitted any evidence rebutting the social worker’s 23 contentions. 6 1 Under these circumstances, the district court did not 2 abuse its discretion in adopting the government’s proposed 3 figure. See United States v. Doe, 488 F.3d 1154, 1160 (9th 4 Cir. 2007) (an award will be upheld “if the district court 5 is able to estimate, based upon facts in the record, the 6 amount of victim’s loss with some reasonable certainty.”); 7 cf. United States v. Julian, 242 F.3d 1245, 1248 (10th Cir. 8 2001) (remanding for a hearing where the “presentence report 9 contained no evidence regarding the victim’s need for future 10 counseling or the estimated cost of that counseling”). 11 We have considered all of appellants’ arguments and 12 find them to be without merit. For the reasons stated 13 above, the judgment of the district court is AFFIRMED. 14 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 7