USA v. Michael Wright

Filing

PUBLISHED OPINION FILED. [09-31215 Vacated and Remanded] Judge: CDK, Judge: WED, Judge: LHS. Mandate pull date is 05/11/2011 for Appellant Michael Wright [09-31215]

Case: 09-31215 Document: 00511452928 Page: 1 Date Filed: 04/20/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
April 20, 2011
No. 09-31215

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL WRIGHT,
Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana

Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
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.

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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 3663 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
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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 any 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
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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
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of this court was very recently issued in a case raising similar, overlapping
questions with regard to a different defendant convicted of possessing images of
Amy. In re Amy, No. 09-41238, slip op. (5th Cir. Mar. 22, 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, No. 09-41238, slip op. at 12. 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

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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 Wright’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
1

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

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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, No. 09-41238, slip op. at 12-13. 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 16.
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 subcategories of losses in subsections (A) through (E). Id. at 12. The court limited
the effect of that clause to the “catchall” provision of subsection (F) itself. Id.

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(“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 the 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

2

We note that other circuit courts have not adopted the view of § 2259 articulated by
In re Amy. See United States v. Monzel, No. 11-2008, slip op. at 12-17 (D.C. Cir. April 19,
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.

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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

3

See In re Amy, No. 09-41238, slip op. at 17 (citing § 3664(m)(1)(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).
4

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.
5

See In re Amy, No. 09-41238, slip op. at 18 (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).

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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
In 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

6

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 F. App’x 377, 37879 (9th Cir. Sept. 1, 2010).
7

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.”).

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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.

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W. EUGENE DAVIS, Circuit Judge, specially concurring:
I write separately to express my disagreement with the recent holding by
the In re Amy panel that § 2259 does not limit the victim’s recoverable losses to
those proximately caused by the defendant’s offense and to urge the court to
grant en banc review of that decision.
I.
At bottom, this is a statutory interpretation case and I begin with a
consideration of the structure and language of the statutes at issue. Section
2259 specifically governs mandatory restitution awards for crimes related to the
sexual exploitation and other abuse of children. Section 2259(a) states that the
court “shall order restitution for any offense under this chapter.”

Section

2259(b)(3) states that the victim’s losses are defined as those suffered by the
victim “as a proximate result of the offense.” Again, the full text of § 2259(b)(3)
is 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).
I interpret this statutory list according to the fundamental canon of
statutory construction established by the Supreme Court in Porto Rico Railway,
Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920), in which the Court held that
“[w]hen several words are followed by a clause which is applicable as much to
the first and other words as to the last, the natural construction of the language
demands that the clause be read as applicable to all.” Applying this cardinal

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rule of statutory interpretation, I conclude that the clause “as a proximate result
of the offense” applies equally to the previous five subcategories of losses, (A)
through (E), as to the “other losses” described in subsection (F).1
This interpretation of § 2259(b)(3) is further supported by the procedures
for issuing and enforcing restitution orders.

Section 2259(b)(2) expressly

incorporates the procedures of 18 U.S.C. § 3664, stating that “[a]n order of
restitution under this section shall be issued and enforced in accordance with
section 3664 in same manner as an order under section 3663A.”2 Section 3664(e)
states unequivocally that “[t]he burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the attorney for the
Government.” (emphasis added).
This language from § 2259(b)(3) and § 3664(e) is consistent with the
definition of “victim” in § 2259(c), which is defined to mean “the individual
harmed as a result of a commission of crime under this chapter . . . .” (emphasis
added).

The definition of “victim” reinforces the proximate causation

requirement of §§ 2259(b)(3) and 3664(e).
In contrast, the In re Amy panel determined that the definition of victim
in § 2259(c) is the statute’s only “built-in causation requirement.” See In re Amy,
No. 09-41238, slip op. at 16. The panel concluded that the clause “as a proximate
result of the offense” in § 2259(b)(3) modifies only the “catchall” provision of
subsection (F) and not the previous five sub-categories of losses. Id. at 12.

1

As explained further below, every circuit court and virtually every district court
construing § 2259(b)(3) agrees with this reading of the statute in accordance with the rule of
Porto Rico Railway. See, e.g., McDaniel, 631 F.3d at 1209 (“The phrase ‘as a proximate result
of the offense’ is equally applicable to medical costs, lost income, and attorneys’ fees as it is to
‘any other losses.’”) (citing Porto Rico Railway, 253 U.S. at 348).
2

Section 3663A is a more general mandatory restitution statute that was enacted by
the Mandatory Victim Restitution Act. See infra n. 4.

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In re Amy’s reading of § 2259(b)(3) is patently inconsistent with the rule
of statutory interpretation announced in Porto Rico Railway which makes it
clear that the clause is equally applicable to all categories of loss.3 Furthermore,
this interpretation of § 2259(b)(3) is directly contrary to the enforcement
procedures of § 3664(e) placing the burden of demonstrating the “amount of the
loss” sustained by a victim “as a result of the offense” on the government. In re
Amy is inexplicably silent about § 3664(e) and its role of supporting § 2259(b)(3)'s
requirement of proximate causation.
Thus, the In re Amy panel erred in concluding that §2259's only causation
requirement is found in the statute’s definition of “victim.” In re Amy supports
this conclusion by comparing § 2259(c)’s definition of victim with the definition
in the more general mandatory restitution statute, 18 U.S.C. §3663A, which
defines a victim “a person directly and proximately harmed as a result of a
commission of an offense . . . .” 18 U.S.C. § 3663A(a)(2) (emphasis added). It
does not follow, however, from this different definition of “victim” that Congress
“abandoned” the proximate causation requirement in § 2259. See In re Amy, No.
09-41238, slip op. at 13 (“Comparing these statutes reveals that Congress
abandoned the proximate causation language . . . .”). The procedures of §
3664(e)—which apply equally to restitution orders under both §§ 2259 and
3663A—clearly contemplate a proximate causation requirement, which is
consistent with the express language in both §§ 2259 and 3663A.

Thus,

Congress did not abandon the causation requirement in § 2259.
Additionally, In re Amy is simply incorrect in its assertion that “the
evolution in victims’ rights statutes demonstrates Congress’s choice to abandon

3

I am not persuaded by In re Amy’s attempt to distinguish the statute in Porto Rico
Railway on the basis that the sub-categories of § 2259(b)(3) are separated by semi-colons
rather than commas. See In re Amy, No. 09-41238, slip op. at 14. Either punctuation device
is an acceptable method of separating clauses. See Bryan A. Garner, THE REDBOOK : A MANUAL
ON LEGAL STYLE , 1-15 (2d. ed. 2006).

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a global requirement of proximate causation.” In re Amy, No. 09-41238, slip op.
at 13. The panel based this conclusion on the erroneous determination that
comparing §3663A’s definition of “victim” to § 2259's definition of the same word
“enacted 14 years later” reveals Congress’s evolution toward abandoning
proximate causation. Id. at 12-13. In fact, § 2259's definition of “victim” was
enacted two years before § 3663A’s definition of that term, not 14 years after.4
Therefore, if anything, the definition of “victim” in § 3363A evolved toward (and
not away from) a firm stance of requiring a showing of proximate causation.5
I completely agree with the In re Amy panel that Amy is a “victim” of the
crime of possessing images of her abuse pursuant to the definition of “victim” in
§ 2259(c) under the reasoning of New York v. Ferber, 458 U.S. 747, 759, 102 S.
Ct. 3348, 3355 (1982) and United States v. Norris, 159 F.3d 926, 929 (5th Cir.
1998), which recognized the serious harm a child suffers by the distribution and
possession of images depicting her abuse. Every other federal court addressing
this issue has followed the reasoning of Ferber and Norris in holding that Amy
and similar children are “victims.” See, e.g., McDaniel, 631 F.3d at 1208 (“Like

4

A timeline of federal restitution statutes follows: (1) Congress passed the Victim and
Witness Protection Act of 1982 (“VWPA”), Pub. L. 97-291, 1982 S. 2420. The VWPA enacted
the discretionary restitution provisions currently codified in § 3663, but did not contain
§3663's current definition of “victim” or the mandatory restitution provisions currently codified
in § 3663A; (2) Congress passed the Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, 108 Stat. 1796, 1907-1910, which enacted § 2259, including the current
definition of “victim” in § 2259(c); (3) Congress passed the Mandatory Victim Restitution Act
(“MVRA”) as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, which amended existing federal restitution laws and procedures. The
MVRA added § 3663A to the United States Code and established the current definition of
“victim” in §§ 3663A(a)(2) and 3663(a)(2) as “a person directly and proximately harmed as a
result of a commission of an offense . . . .” 110 Stat. 1228, 1230.
5

This conclusion is further supported by the Crime Victims’ Rights Act (“CVRA”), part
of the Justice for All Act of 2004, Pub. L. 108-405, 118 Stat. 2260, which reiterates that crime
victims have “[t]he right to full and timely restitution as provided in law.” 18 U.S.C. § 3771
(a)(6). The CVRA provides victims with the mandamus remedy that In re Amy granted. Id.
§ 3771(d). Like §§ 3663 and 3663A, the CVRA defines a victim as “a person directly and
proximately harmed as a result of the commission of a Federal offense . . . .” Id. § 3771(e).

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the producers and distributors of child pornography, the possessors of child
pornography victimize the children depicted within.”) (citing Ferber, 458 U.S. at
759). As explained further below, all of the circuit and district court cases that
have dealt with this issue have started from the premise that these children are
victims. This is usually not a seriously contested issue and is a given. The
difficult issue in all of these cases is determining the amount of the restitution
award that should properly be assessed against the single defendant before the
court when multiple images—sometimes thousands—have been possessed and
distributed to many individuals. This is when the statute’s plain language
requiring a showing of proximate cause between the defendant’s conduct and the
award is important.
II.
In re Amy’s holding that § 2259 does not limit the victim’s recoverable
losses to those proximately caused by defendant’s offense is at odds with the
conclusion of every other circuit court considering this issue. In a very similar
case involving restitution ordered against a defendant convicted of possessing
child pornography, the Eleventh Circuit recently rejected the interpretation of
§ 2259(b)(3) adopted by In re Amy. McDaniel, 631 F.3d at 1209. The Eleventh
Circuit held that “[t]he phrase ‘as a proximate result of the offense’ is equally
applicable to medical costs, lost income, and attorneys’ fees as it is to ‘any other
losses.’” Id. Accordingly, although the court held that the child, “Vicky,” was a
“victim” of the defendant’s crime, the court proceeded to evaluate the district
court’s restitution order under § 2259(b)(3)’s requirement limiting the victim’s
recoverable losses to those proximately caused by the defendant’s offense. Id.
Thus, the Eleventh Circuit’s reading of § 2259 is entirely consistent with my
reading and is contrary to In re Amy’s interpretation.
The Eleventh Circuit affirmed the district court’s restitution order of
$12,700, which constituted only part of Vicky’s overall losses, in light of §
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No. 09-31215
2259(b)(3)’s proximate causation requirement. Id. The court affirmed the award
on the basis that the government notified Vicky each time a defendant
possessing her images was arrested and that according to the testimony of
Vicky’s psychologist, each of these notifications added to the “slow acid drip” of
Vicky’s ongoing emotional distress. McDaniel, 631 F.3d at 1209. Thus, the court
held that the district court “did not clearly err in finding that McDaniel’s
possession proximately caused Vicky’s losses.” Id. (emphasis added).
The Eleventh Circuit cited the Ninth Circuit’s holding in United States v.
Laney, 189 F.3d 954, 965 (9th Cir. 1999), a case involving a defendant convicted
of conspiring to engage in the sexual exploitation of children. The Ninth Circuit
held that § 2259 requires “a causal connection between the offense of conviction
and the victim’s harm.” Id. at 965. The Ninth Circuit also recently affirmed a
restitution order in the amount of $3,000 against a defendant convicted of
possessing images of Vicky on the basis that “[t]he United States met its burden
of establishing proximate cause by showing how Vicky’s harm was generally
foreseeable to casual users of child pornography like Baxter.” United v. Baxter,
394 F. App’x 377, 378-79 (9th Cir. Sept. 1, 2010) (emphasis added). Baxter
affirmed the district court’s grant of the government’s request for a $3,000 award
based on the government’s estimate that this amount would cover 18 sessions,
or one and one-half years of therapy for Vicky, at one session per month. Id.
The court determined that this amount represented a fair and reasonable
estimate of the amount of Vicky’s harm caused by the defendant. Id.
These opinions are consistent with the Third Circuit’s opinion in United
States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999), in which the court affirmed
a restitution order against a defendant convicted of receiving child pornography.
Id. at 126. The district court had concluded “by a preponderance of the evidence
that Crandon’s conduct was the proximate cause of the victim’s losses.” Id.
Based on the defendant’s conduct, which the evidence showed had exacerbated
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No. 09-31215
the victim’s harm and constituted a “substantial factor in causing the ultimate
loss,” the Third Circuit concluded that “the district court did not abuse its
discretion in concluding that Crandon’s conduct was the proximate cause of the
victim’s losses.” Id. (emphasis added).
The In re Amy opinion does not discuss this substantial circuit authority
interpreting § 2259 to require a showing of proximate causation between the
defendant’s conduct and the victim’s recoverable losses. Additionally, the In re
Amy opinion fails to mention the large number of district court cases that have
recently addressed this issue in the context of child pornography possession
convictions. Almost all of these cases involve Amy or Vicky. These courts all
agree that Amy and Vicky are “victims” of the crime of possessing images
portraying their abuse under the definition of “victim” in § 2259 and reasoning
of Ferber, 458 U.S. at 759, 102 S. Ct. at 335, and Norris, 159 F.3d at 929.
However, these courts also recognize that “almost every court to have considered
causation under § 2259 has found the ‘proximate result’ language in the catchall
provision to apply equally to the other enumerated categories of loss, and
therefore has held that § 2259 requires a showing of proximate cause.” United
States v. Chow, No. 09-CR-165, 2010 U.S. Dist. LEXIS 140506 (S.D.N.Y. Nov. 22,
2010). Thus, virtually every district court addressing the topic has concluded
that § 2259 includes a distinct requirement that the victim’s recoverable losses
are limited to those proximately caused by the defendant’s offense. See, e.g.,
United States v. Hardy, 707 F. Supp. 2d 597, 610 (W.D. Pa. 2010)(“Given the
unanimity of the Circuits that have addressed the question, the language of the
statute, and the legislative history of its amendments, this Court finds that 18
U.S.C. § 2259 does require that a victim’s losses be proximately caused by the
criminal acts of the defendant for restitution to be awarded.”).6
6

A representative list of additional cases follows: United States v. Church, 701 F. Supp.
2d 814, 825-26 (W.D. Va. April 5, 2010); United States v. Berk, 666 F. Supp. 2d 182 (D. Me.

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No. 09-31215
These district courts have come to different conclusions regarding the
amount of restitution owed in light of § 2259's proximate causation requirement.
Some of these courts have ordered no restitution, some have ordered joint and
several liability for the total amount of the victim’s losses, and some courts have
ordered smaller awards in the general range of $3,000 to $5,000.7 The one point
that all of these numerous opinions agree on is that the restitution order must
be based on evidence of a causal connection between the defendant’s offense and
the victim’s losses. These opinions do not rely solely on § 2259(c)’s definition of
“victim” to establish the causal requirements of § 2259. I can identify no opinion
of a district or circuit court other than In re Amy expressly holding that § 2259
does not limit the victim’s recoverable losses to those proximately caused by the
defendant’s offense.

III.
In this case, we should direct the district court to make findings regarding
the causal connection between Wright’s offense and any of Amy’s losses that the

2009); United States v. Rowe, No. 1:09-CR-80, 2010 U.S. Dist LEXIS 98458 (W.D.N.C. Sept.
7, 2010); United States v. Aumais, No. 08-CR-711, 2010 U.S. Dist. LEXIS 78407 (N.D.N.Y. Jan.
13, 2010); United States v. Brunner, No. 5:08-CR-16, 2010 U.S. Dist. LEXIS 8285 (W.D.N.C.
Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 U.S. Dist. LEXIS 110253 (E.D.
Va. Nov. 24, 2009); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 U.S. Dist. LEXIS
80339 (E.D. Cal. Aug. 19, 2009); United States v. Renga, 2009 U.S. Dist. LEXIS 78144 (E.C.
Cal. Aug. 18, 2009). I am aware of only one district court that has ordered restitution against
a defendant possessing Amy’s or Vicky’s images without discussing proximate causation.
United States v. Staples, No. 09-CR-14017, 2009 U.S. Dist. LEXIS 81648 (S.D. Fla. Sept. 2,
2009) (ordering joint and several restitution for the full amount of Amy’s losses).
7

One of these courts relied on 18 U.S.C. § 3664(h) as authority for ordering joint and
several restitution against a defendant possessing and distributing Amy’s images. See Hardy,
707 F. Supp. 2d at 614-15. A number of these courts have relied on the apportionment
provisions of § 3664(h) as authority for issuing smaller or partial awards. The full text of §
3664(h) is as follows: “If the court finds that more than 1 defendant has contributed to the loss
of a victim, the court may make each defendant liable for payment of the full amount of
restitution or may apportion liability among the defendants to reflect the level of contribution
to the victim’s loss and economic circumstances of each defendant.”

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No. 09-31215
court orders Wright to pay pursuant to the requirements of § 2259. If the court
finds evidence that Wright’s possession of the images was a proximate cause of
Amy’s losses, the court has wide discretion to craft a reasonable restitution order
reflecting the losses caused by Wright. The district court’s order need not
approach “mathematical precision.” See United States v. Doe, 488 F.3d 1154,
1160 (9th Cir. 2007). The district court could apportion Wright’s share of Amy’s
total losses or render judgment under the joint and several liability provisions
of § 3664(h) utilized in some of the above-cited cases. Whatever approach the
district court chooses, the court should explain the basis of its award and the
order should be constrained by the principle of proximate causation.8

IV.
Finally, I note that the District of Columbia Circuit very recently issued
a thorough, well-reasoned opinion that is consistent with this special

8

In re Amy cited the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9607(a) (“CERCLA”) as an example of joint and several liability. In
re Amy, No. 09-41238, slip op. at 17. The Supreme Court has recognized that the scope of joint
and several liability under CERCLA is to be determined by the “principles of common law.”
Burlington Northern & Santa Fe Railway Co. v. United States, 129 S. Ct. 1870, 1880-81 (2009).
Thus, the Court has held that CERCLA joint and several liability is limited by the following
general causation principles:
[W]hen two or more persons acting independently cause a distinct or single
harm for which there is a reasonable basis for division according to the
contribution of each, each is subject to liability only for the portion of the total
harm that he has himself caused. Restatement (Second) of Torts §§ 433, 881;
Prosser, Law of Torts, pp 313-314 (4th ed. 1971). But where two or more
persons cause a single, indivisible harm, each is subject to liability for the entire
harm. Restatement (Second) of Torts, § 875; Prosser, at 315-16. In other words,
apportionment is proper when there is a reasonable basis for determining the
contribution of each cause to a single harm. Restatement (Second of Torts) §
433A(1)(b), p. 434 (1963-64).
Burlington Northern, 129 S. Ct. at 1881 (internal citation omitted). These same general
causation principles should apply to joint and several restitution orders under § 2259.

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concurrence. See United States v. Monzel, No. 11-3008, slip op. (D.C. Cir. April
19, 2011).
For all of the foregoing reasons, this court should follow every other circuit
court and virtually every district court considering this issue in holding that §
2259 limits recoverable losses to those proximately caused by the defendant’s
offense of conviction. Thus, I recommend that this case be consolidated with In
re Amy and reheard en banc.
I have been authorized to state that Judges KING and SOUTHWICK join
in this special concurrence.

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