Appeal from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting defendant-appellant, following his guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him to, inter alia, pay restitution in the amount of $974,902. We find that the district court has not explained adequately its calculation of the restitution amount and therefore vacate that portion of the judgment and remand for further sentencing proceedings.
Before MINER, KATZMANN, and RAGGI, Circuit Judges.
Defendant-appellant Abraham Pearson appeals from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him, following a guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him, inter alia, to serve fifteen years' imprisonment and to pay restitution to the child victims of his crime in the amount of $974,902. Because we conclude that the defendant has not waived his right to appeal the restitution amount, we are called upon to consider whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses, and, if so, whether the amount of restitution ordered, which included an estimate of the victims' future medical expenses, is reasonable. We hold that a restitution order pursuant to 18 U.S.C. § 2259 may provide for estimated future medical expenses, but we find that the district court has not explained adequately its calculation of the restitution amount. Therefore, we vacate that portion of the judgment and remand for further sentencing proceedings limited to that issue.
In January 2006, Pearson was charged in a seventy-four count second superseding indictment with the production, transportation, possession, and receipt of child pornography, and with failing to keep records pertaining to individuals portrayed in sexually explicit conduct. The indictment alleged that he had, inter alia, videotaped and photographed two minor females ("Jane Doe #1" and "Jane Doe #2") in sexually explicit positions, and enticed them to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct.
On June 6, 2006, Pearson entered into a plea agreement in which he agreed to plead guilty to twenty-one counts of the second superseding indictment.
In the first paragraph of the agreement, the parties stipulated that "the particular sentence specified below is the appropriate disposition of this case." Plea Agreement ¶ 1(b). That paragraph also stated that "[Pearson] consents to the entry of an order directing him to pay restitution in full to any person who would qualify as a victim, under 18 U.S.C. § 3663 or § 3663A, of the above mentioned offense(s)." Id. ¶ 1(c). "In furtherance of his restitution obligations," Pearson agreed to provide $100,000 to the government, prior to sentencing, to be divided equally between Jane Doe #1 and Jane Doe #2. Id.
The next paragraph, entitled "Potential Penalties," confirmed Pearson's understanding that "[p]ursuant to the Mandatory Victim Restitution Act, the sentencing Court must order that the Defendant pay restitution to any victims of the offenses of conviction, as more fully set forth in paragraph 1." Id. ¶ 2(e).
In paragraph 3, entitled "Agreed-Upon Sentence," the government and Pearson, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), agreed that a sentence of 15 years imprisonment, a term of supervised release of up to life, an order of restitution as specified above, a special assessment of $2,100, an order of forfeiture as set forth below, and the other conditions set forth in paragraph 1 above is the appropriate disposition of this case (hereinafter referred to as "the agreed disposition").
Id. ¶ 3 (emphasis added). The agreement specified that the term of supervised release was not part of the Rule 11(c)(1)(C) agreement ...