Case: 22-40516 Document: 00516864823 Page: 1 Date Filed: 08/21/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 21, 2023
No. 22-40516 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Reid Etheridge,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-1791-1
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
Per Curiam: *
Defendant-Appellant Reid Etheridge pleaded guilty to crimes related
to child pornography and the sexual abuse of young children. He was
sentenced to life imprisonment and ordered to pay restitution, decisions
which he now appeals. We affirm the sentence imposed by the district court
but reverse and remand on the restitution award for reconsideration.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40516 Document: 00516864823 Page: 2 Date Filed: 08/21/2023
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Facts and Proceedings
Etheridge and his co-defendant, Alicia Cronkhite, were charged with
crimes related to the sexual abuse of their own children. At the time,
Etheridge’s daughter (“E.E.”) was four years old and Cronkhite’s daughter
(“K.C.”) was six years old. Law enforcement uncovered pornographic
images and videos of both children in Etheridge’s possession. Etheridge and
Cronkhite gave voluntary post-arrest statements admitting, among other
things, that they produced and exchanged those files with each other while
they were dating.
Etheridge pleaded guilty to two counts of production of child
pornography, in violation of 18 U.S.C. § 2251(a), and one count of coercion
and enticement of a minor, in violation of 18 U.S.C. § 2422(b). The plea
agreement contained no appellate waiver.
A. Sentencing
Defendants retained clinical psychologist Stephen Thorne to
conduct psychosexual evaluations before sentencing. Thorne’s report
focused on two forms of assessments of recidivism: the “Risk for Sexual
Violence Protocol” (RSVP) assessment and the “Static-99R” assessment.
Thorne extensively interviewed Etheridge over video.
The RSVP consists of risk factors related to sexual violence history,
psychological adjustment, mental disorder, social adjustment, and
manageability. Thorne concluded in the RSVP that “Etheridge is a
‘moderate’ risk for future sexual recidivism.” His opinion was “largely
influenced by his alleged lack of additional (independent of the
circumstances relating to the instant offenses) documented (via arrest or
conviction) sexually deviant/violent behavior, his apparent history (for
much of his adult life) of employment stability, a lack of documented (via
arrest or conviction) non-sexually criminality and/or violent behavior, and
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(since being arrested and detained in October 2020) his overall institutional
adjustment.” That said, Thorne also described “areas of concern” such as
Etheridge’s history of alcohol use, his childhood physical and sexual abuse
by family, and the facts around the instant case—the filming and rape of
familial and extrafamilial minors. Etheridge also admitted to sexual contact
with a dog and his younger sister.
Etheridge’s result on the Static-99R assessment was similar: He
received a score of “+1,” indicating an “average” risk of committing another
sexual offense. The report makes clear that this score is “based on [sic]
assumption that he would be released into the community prior to his 60th
birthday; if he is released into the community on, or after, his 60th birthday,
his overall Static-99R would be revised.” Thorne opined that a “+1”
overall Static-99R score indicates “a sexual recidivism rate approximately
[three-quarters] of that of those offenders that have been described as the
‘typical’ offender (those offenders in the middle of the risk distribution).”
Relevant literature indicates that, over a period of either five years or ten
years, “less than 3% of [Texas] offenders with this same score were
determined to have committed new sex offenses.” “[F]irst-time sex
offenders have been found to have significantly lower levels of sexual
recidivism than do those with previous convictions for sex offenses,” but
sex offenders with prior sex-offense convictions have “nearly double the
recidivism rates of first-time sexual offenders.” The report also notes that
appropriate therapy and treatment are likely to reduce recidivism.
Etheridge was sentenced on July 21, 2022. All parties agreed that the
applicable guidelines range advised life imprisonment for Etheridge.
Defense counsel implored the district court for a 18 U.S.C. § 3553(a)
variance down to 20 to 30 years imprisonment based on evidence of
Etheridge’s childhood abuse, his history of stable employment, his status as
a first-time offender, and the relatively lower rate of recidivism among first-
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time sex offenders with treatment. Thorne was present at sentencing over
video in case any question should arise.
During defendant’s mitigation presentation, the district court noted
that Thorne’s conclusion regarding an “average chance of reoffending” was
“disturbing,” commenting that “[a]n average chance seems . . . more than
a slight chance” and that it was “significant that [Etheridge’s report]
wasn’t like Ms. Cronkhite’s report,” which designated her with a lower
chance of recidivism. The court also observed that this case is not merely
about child pornography: “most of these [statistics cited by the defense] . . .
were child porn cases and talking about child porn, but this is, in [the
court’s] estimate, dramatically worse . . . This is . . . rap[e].” No specific
objections were made by defense counsel regarding the court’s observations
of the Thorne assessment. At the close of argument, the court sentenced
Etheridge to the guideline sentence of life, having “very closely”
considered “all the [18 U.S.C. §] 3553(a) factors.”
B. Restitution
Earlier in the case, the Government had sent victim impact forms to
the guardians of K.C. and E.E. Those forms instruct victims to identify
related harms and financial losses. Only E.E.’s guardian completed a form,
stating that E.E. had received state-funded counseling. She also indicated
that she had incurred no related expenses and anticipated no future sessions
“for now.” E.E.’s guardian disclosed that she did not know whether “E.E.”
remembered the assaults and did not know how the assaults would affect
“E.E.” in the future. That form was included as an addendum to the
presentence report (PSR). The PSR merely noted under restitution that
K.C. and E.E. were victims. The Government’s submissions did not
address a foundation for restitution either, beyond stating that any “future
harm is immeasurable,” and advised that it did “not believe, nor had any
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evidence that the videos of the Minor Victims have been shared to the
internet or other sexual predators.”
At sentencing, the district court raised the subject of restitution
during the victim allocutions by E.E. and K.C.’s guardians. The court
lengthily explained that emotional trauma could manifest in victims for
years and that such trauma could warrant “more intense therapy.” Only
then did K.C.’s guardian indicate that he had paid out-of-pocket for his
daughter’s visits to her psychologist, but he was reluctant to give an
estimate of the amount. The court went on to describe the restitution
process and indicated that an estimate of future expenses did not require
mathematical precision. The court stated that Etheridge’s available funds
would not benefit any victims unless an estimate of loss is provided. It
added that this was the guardians’ “chance to help the victim here” despite
their evident “reluctan[ce].” In response, K.C.’s guardian finally estimated
that he had spent about $2,000 on mental health fees for K.C. Without
further input from K.C.’s guardian, the court opined that future expenses
might amount to $1,000 per year over the next five or six years. K.C.’s
guardian simply agreed.
The court’s discussion with E.E.’s guardian proceeded similarly,
although she affirmed that she had incurred no costs by attending state-
funded treatment to date. She noted that E.E. still lived in the house where
she was molested and that she recalled some encounters. In response to the
court’s questioning about future manifestations of trauma, E.E.’s guardian
stated that she had concerns for future therapy. The court concluded that
E.E. would need similar care to K.C. and came up with a restitution amount
accordingly.
For K.C., the court ordered $2,000 in restitution for past treatment
and $10,000 for future treatment. For E.E., the court ordered $10,000 in
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restitution for future treatment. The judgment reflects these restitution
awards and Etheridge’s sentence of life imprisonment. Etheridge timely
appealed.
Standard of Review
We review Etheridge’s sentence for plain error because the instant
issues were not preserved. Etheridge failed to challenge the district court’s
interpretation of the assessment with adequate specificity. See United States
v. Zarco-Beiza, 24 F.4th 477, 481-82 (5th Cir. 2022) (holding that a
defendant’s general disagreement with the district court was insufficient to
preserve his later specific claim of error on appeal). At sentencing, defense
counsel merely communicated that a life sentence was greater than
necessary without describing why the court was incorrect in its
interpretation of the assessment. That said, the issue was not fully waived,
as to prevent appellate review, in light of counsel’s express disagreement
with the sentence. See United States v. Cabello, 33 F.4th 281, 295 (5th Cir.
2022).
Because the restitution award was not challenged below, we review
that issue for plain error. See United States v. Leal, 933 F.3d 426, 431-32 (5th
Cir. 2019) (reviewing restitution award for child pornography offenses
under 18 U.S.C. § 2259 for plain error). Thus, for both issues, Etheridge
must demonstrate that the district court clearly and obviously erred, and
that such error affected his substantial rights. See id. The error must
“seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Zarco-Beiza, 24 F.4th at 482 (cleaned up).
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ANALYSIS
A. Sentencing
Etheridge asserts two substantive misinterpretations of Thorne’s
report by the district court at sentencing: (1) the district court
misunderstood that an “average” designation for recidivism indicated a
single-digit likelihood of reoffending; and (2) the court misunderstood that
Thorne’s conclusions were premised on Etheridge’s release before the age
of 60, which was unlikely even with the variance.
The record does not contain any statements reflecting clear or obvious
error as to either of those contentions. Etheridge is left with mere
speculation as to how the district court misinterpreted that evidence. See
United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017)
(“[S]peculative contention does not demonstrate reversible plain error.”).
Simply put, the report contained both good and bad, and any disagreements
that the district court had with the report were explained without erroneous
reasoning. For example, the district court expressly distinguished statistics
cited by defense counsel as relating to child pornography only, but this case
involved rampant sexual abuse. The district court also expressly noted its
surprise that Etheridge had a merely “average” chance of recidivism and
that it had considered the “very different” results of Etheridge’s
assessment from Cronkhite’s report, which reflected a lower category of
recidivism. The court reviewed the entire report and was within its
discretion to weigh its contents accordingly. See United States v. Cantu-
Ramirez, 669 F.3d 619, 628 (5th Cir. 2012) (“District courts enjoy wide
discretion in determining which evidence to consider and to credit for
sentencing purposes.”).
Furthermore, the district court stated that it had closely considered
all relevant statutory factors in deciding against varying downwards. See 18
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U.S.C. § 3553(a). Although the court placed great weight on recidivism and
public safety, mere disagreement with how these factors are weighed does
not amount to plain error. See United States v. Alvarado, 691 F.3d 592, 597
(5th Cir. 2012) (“[A] sentencing judge ‘must use their judgment to weigh
the relative importance of each factor.’”). The record does not indicate any
clear or obvious error in the district court’s reading of the evidence in
deciding against varying downwards. We affirm.
B. Restitution
Restitution is proper here “only to the extent the defendant’s
offense proximately caused a victim’s losses.” Paroline v. United States, 572
U.S. 434, 448 (2014); see, e.g., 18 U.S.C. § 2259(b)(2)(A) (“The court shall
determine the full amount of the victim’s losses that were incurred or are
reasonably projected to be incurred by the victim as a result of
the trafficking in child pornography depicting the victim.”). The burden is
on the Government to demonstrate the amount of the victim’s losses that
resulted from an offense. Paroline, 572 U.S. at 443. “Though it need not be
exact, a district court’s ‘[r]estitution order[] should represent an application
of law, not a decisionmaker’s caprice.’” United States v. Villalobos, 879 F.3d
169, 172 (5th Cir. 2018) (citing Paroline, 572 U.S. at 462). Erroneously
excessive awards “cannot be excused [as] harmless error.” United States v.
Sharma, 703 F.3d 318, 322 (5th Cir. 2012).
Although great latitude is afforded to the sentencing court for
estimating restitution, neither the victims nor the Government submitted
any evidence of costs here. The PSR merely states that K.C. and E.E. were
victims, with no indication of expenses that arose from the harms. The only
victim impact form filed in this case expressly notes that no costs were
incurred and that no further counseling sessions were yet anticipated. The
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Government provided no further foundation or argument on restitution
amount in its pre-sentence filings or at sentencing.
The Government now asserts, for the first time, that it had an undue
difficulty in presenting such evidence. See Villalobos, 879 F.3d at 169. The fact
that this was never mentioned below torpedoes this contention, but the
record does not support it either. Id. The victims’ guardians were present at
sentencing. The assessment of past medical expenses is easy enough to
muster through medical bills, and such bills could provide good bases for
estimating future expenses. Alternatively, future expenses might be
estimated through submissions by the Government regarding similar cases
of restitution or relevant testimony. But nothing was submitted or
referenced here.
The Government’s conduct falls far short of its burden of providing
the court with enough evidence to estimate the victim’s losses with some
reasonable certainty. United States v. Reese, 998 F.2d 1275, 1282-84 (5th Cir.
1993) (remanding the issue of restitution for further consideration because
“[t]he testimony and evidence in the restitution hearing is inadequate to
permit the appellate court to arrive at a correct determination of these
amounts”). Therefore, we have no choice but to vacate the existing awards
of restitution to K.C. and E.E.
That said, we agree with the district court that restitution is well-
warranted. E.E.’s guardian submitted in her form that neither of them were
“fully healed” from Etheridge’s crimes and K.C.’s guardian stated at
sentencing that costs for therapy were incurred. We therefore remand this
case for the district court’s reconsideration of the restitution amounts to
K.C. and E.E. We also hold that the Government may present supplemental
evidence on remand because of the great harm that the victims may suffer from
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“the Government’s failure to present sufficient evidence to the district
court.” Villalobos, 879 F.3d at 172.
Conclusion
We VACATE the restitution order and REMAND the case to the
district court for further proceedings consistent with this opinion. The
sentence is otherwise AFFIRMED.
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