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United States of America v. Gerald Aumais


September 8, 2011


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:


United States v. Aumais

Argued: June 15, 2011

Before: JACOBS, Chief Judge, WINTER and McLAUGHLIN, Circuit Judges.

Defendant-Appellant Gerald Aumais appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months' imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of "Amy," one 3 of the victims depicted in the images and videos.

On appeal, Aumais challenges the restitution order on the 5 ground that his possession was not a proximate cause of her 6 loss. Aumais also argues that the district court committed 7 procedural and substantive error in sentencing him to 121 8 months' imprisonment. We conclude that: based on the facts 9 in this case, Aumais' possession of Amy's images was not a 10 substantial factor in causing her loss; and that the 11 district court committed no procedural or substantive error 12 in imposing the sentence of imprisonment. Affirmed in part 13 and reversed in part.

Gerald Aumais ("Aumais") appeals from an Amended 26 Judgment of Conviction entered on August 3, 2010 in the 27 United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to 2 transporting and possessing child pornography in violation 3 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district 4 court sentenced Aumais to 121 months' imprisonment and 5 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 6 restitution to finance future counseling costs of "Amy" (a 7 pseudonym), one of the victims depicted in the images and 8 videos. Aumais challenges the restitution order on the 9 ground that his possession was not a proximate cause of 10 Amy's loss. Aumais also argues that the district court 11 committed procedural and substantive error in sentencing him 12 to 121 months' imprisonment. We conclude that: based on the 13 facts in this case, Aumais' possession of Amy's images was 14 not a substantial factor in causing her loss; and that the 15 district court committed no procedural or substantive error 16 in imposing the sentence of imprisonment. Affirmed in part 17 and reversed in part.


Aumais attempted to enter the United States from Canada 21 at the Fort Covington, New York Port of Entry in November 22 2008, where he was referred for secondary inspection.

A search of his car revealed a cache of DVDs and other 2 electronic devices that stored thousands of still images of 3 child pornography and over one hundred such videos. Aumais 4 told border agents that he owned all of the electronic media 5 located in the car and admitted to downloading the child 6 pornography from a peer-to-peer network.

7 He was charged with: (1) transporting child pornography 8 in foreign commerce, in violation of 18 U.S.C. 9 § 2252A(a)(1); and (2) possessing child pornography that had 10 been transported in foreign commerce, in violation of 18 11 U.S.C. § 2252A(a)(5)(B). On February 4, 2009, Aumais 12 entered a plea of guilty, without a written plea agreement, 13 to both counts of the indictment.


Aumais' Presentence Investigation Report ("PSR") 16 reflected a base offense level of 22.*fn1 The offense level was increased two levels because some of the images were of pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2); four 3 levels because the material contained sadistic images, see 4 U.S.S.G. § 2G2.2(b)(4); two levels because the offense 5 involved use of a computer, see U.S.S.G. § 2G2.2(b)(6); and 6 five levels based upon the number of images in Aumais' 7 possession, see U.S.S.G. § 2G2.2(b)(7)(D). Aumais' offense 8 level was reduced three levels for his early acceptance of 9 responsibility, see U.S.S.G. § 3E1.1(a)-(b). With a total 10 offense level of thirty-two and a Criminal History Category of I, the recommended Guidelines range was 121 to 151 months' imprisonment.

The PSR identified a victim known as "Amy," who sought 14 $3.3 million in restitution pursuant to 18 U.S.C. § 2259. 15 Her Victim Impact Statement explained that she was unable to 16 forget the abuse she suffered at the hands of the uncle (who 17 took the pictures) because the "disgusting images of what he 18 did to [her] are still out there on the internet." She said 19 she lives in fear that she will be recognized in the all over again."

The district court found that Aumais was a pedophile, 3 that he presented a danger to children (although the court 4 credited a polygraph result indicating that he had never 5 gone beyond viewing images), and that he was responsible for 6 harm caused to the children in the images. The district 7 court found that a sentence of 121-months' imprisonment (the 8 low-end of the Guidelines range) was appropriate in view of 9 all the 18 U.S.C. § 3553(a) factors. Accordingly, the 10 district court imposed a sentence of 121 months' 11 imprisonment on Count 1 and 120-months' imprisonment on 12 Count 2, to run concurrently, and a five-year term of 13 supervised release. The district court bifurcated the issue 14 of restitution and referred the matter to a magistrate judge 15 for consideration.


On December 22, 2009, Magistrate Judge David Homer 18 conducted an evidentiary hearing on restitution. The only 19 witness to testify, Government witness Dr. Joyanna Silberg, 20 had evaluated Amy at the request of Amy's attorney, James 21 Marsh, on June 11-12, 2008, July 29, 2008, and November 10, 22 2008. Dr. Silberg recounted that Amy had been sexually abused by her uncle between the ages of 4 and about 7 or 8, 2 that Amy underwent treatment after suffering the abuse, and 3 that the treatment allowed Amy to "function[] pretty well 4 normally" until she learned that her image was being traded 5 on the internet, after which she experienced a fear "of 6 being at parties, fear of being in public gatherings," and 7 had difficulty coping "with her life because of her sense of 8 pervasive helplessness" about the fact that people were 9 viewing her image. Government Appendix 30-31.

Amy discovered that her images were on the internet 11 when she received victim notifications from The National 12 Center for Missing and Exploited Children ("NCMEC"), which 13 compares images of child pornography, identifies those 14 depicted within, and then notifies the victim every time 15 someone is arrested who is found to possess that victim's 16 image. Knowledge that her images were still being viewed 17 caused emotional and psychological problems: she bit her 18 nails to the point of bleeding, took to alcohol, and could 19 not finish college. Dr. Silberg concluded that Amy was a 20 direct victim of Aumais' conduct and that "Mr. Aumais 21 represent[ed] one component of the damages, because Mr. 22 Aumais is one of the individuals arrested for having looked at her picture and possessing it." See Government Appendix 2 41-43.

Finally, although Dr. Silberg's contact with Amy was 4 evaluative rather than therapeutic, she recommended that Amy 5 receive therapy once a week from a professional trained in 6 the effects of sexual abuse and trauma on people in Amy's 7 age group. Dr. Silberg opined that Amy might need three 8 courses of inpatient treatment throughout her life to deal 9 with her alcoholism.

10 On January 13, 2010, the magistrate judge issued a 11 Report and Recommendation that Aumais should be ordered to 12 pay Amy $48,483 in restitution. United States v. Aumais, 13 No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13, 14 2010) ("Aumais I"). The court determined that in order to 15 recover restitution, Amy must show that Aumais' possession 16 of her images proximately caused her harm. Id. at *2. If 17 so, Amy could be entitled to payments for future medical 18 costs "if those expenses can be reasonably estimated." Id. 19 at *3 (citing United States v. Pearson, 570 F.3d 480, 486-87 20 (2d Cir. 2009) (per curiam)). The magistrate judge 21 observed, however, that the issue of "whether a defendant 22 convicted only as a consumer of child pornography may be 1 liable for restitution under § 2259 to a child victim" remained "unaddressed by the Second Circuit." Id.

According to the Report and Recommendation, "[t]here is 4 no question that consumers, such as Aumais, contribute to 5 the exploitation of child victims, such as Amy, depicted in 6 the child pornography they possess." Id. at *4. The court 7 recognized that "the uncle's horrific acts of sexual abuse, 8 production of the images, and distribution of those images 9 to others unquestionably constituted the principal cause of 10 the losses identified by Amy." Id. at *5. At the same time 11 (it was concluded), "if the harm caused by Aumais' 12 possession of Amy's images caused substantial harm to Amy, 13 proximate cause has been demonstrated even if the conduct of 14 others similar to that of Aumais caused equal or greater 15 harm." Id.

Based on Amy's Victim Impact Statement and Dr. 17 Silberg's testimony, the magistrate judge found that, 18 although Amy had neither contact with Aumais nor knowledge 19 of his existence, his possession of her images exacerbated 20 the harm (originally caused by her uncle) by creating a 21 market for distribution, and by inflicting the humiliation 22 of knowing that the images are out there being exploited by a group of consumers, of whom Aumais was one. Id. at *6.

Although Aumais may be among hundreds or thousands of such 3 others, it was found that Amy's harm was not thereby 4 obviated or diminished; rather, "it exacerbate[d] the harm 5 by confirming how expansive has become the number of 6 individuals exploiting Amy's images." Id.

7 The findings as to damages are thorough and 8 discriminating, as follows. Where "a party is responsible 9 for exacerbating a pre-existing condition, damages are 10 generally limited to that attributable to the exacerbation 11 and not the original injury." Id. at *7. The Government 12 failed to prove by a preponderance of evidence that Aumais 13 proximately caused harm that resulted in Amy's difficulties 14 maintaining employment. Id. But the Government did prove 15 by a preponderance of evidence that Aumais caused the need 16 for weekly counseling sessions in the next five years and 17 monthly counseling sessions for five years thereafter. Id. 18 at *8-9. Discounting future counseling costs to present 19 value, the magistrate judge found that the Government proved 20 by a preponderance of evidence that Amy is entitled to 21 $48,483. Id. at *9.

As to joint and several liability, the magistrate judge 1 found that Aumais should be liable for the full amount and 2 that it was "a matter for administration by the government" 3 to prevent excess recovery. Id.

4 The district court adopted Magistrate Judge Homer's 5 Report and Recommendation, and entered judgment on August 3, 6 2010. United States v. Aumais, No. 08-CR-711, 2010 WL 7 3034730 (N.D.N.Y. Aug. 3, 2010) ("Aumais II").


"We review an order of restitution 'deferentially, and 11 we will reverse only for abuse of discretion. To identify 12 such abuse, we must conclude that a challenged ruling rests 13 on an error of law, a clearly erroneous finding of fact, or 14 otherwise cannot be located within the range of permissible 15 decisions.'" Pearson, 570 F.3d at 486 (quoting United 16 States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)).

17 We review a district court's sentencing decision for 18 reasonableness. See United States v. Booker, 543 U.S. 220, 19 260-62 (2005). We review the sentence for substantive 20 reasonableness under a "deferential abuse-of-discretion 21 standard." United States v. Cavera, 550 F.3d 180, 189 (2d 22 Cir. 2008) (en banc). The Court "will not substitute [its] own judgment for the district court's"; rather, a district 2 court's sentence may be set aside "only in exceptional cases 3 where [its] decision cannot be located within the range of 4 permissible decisions." Id. (internal quotation marks 5 omitted).


As Magistrate Judge Homer observed, this Circuit has 9 yet to address the issue of "whether a defendant convicted 10 only as a consumer of child pornography may be liable for 11 restitution under [18 U.S.C.] § 2259 to a child victim."*fn2 12 Aumais I, 2010 WL 3033821, at *3.

13 Section 2259 mandates a district court to order a 14 defendant to pay a "victim," defined as an "individual 15 harmed as a result of a commission of a crime under this 16 chapter," 18 U.S.C. § 2259(c), "the full amount of the 17 victim's losses," id. § 2259(b)(1). The victim's losses 18 include: 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) attorneys' fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

Id. § 2259(b)(3)(A)-(F). "An order of restitution under 19 [§ 2259] shall be issued and enforced in accordance with 20 section 3664 in the same manner as an order under section 21 3663A." Id. § 2259(b)(2). Under 18 U.S.C. § 3664(e), 22 "[t]he burden of demonstrating the amount of the loss 23 sustained by a victim as a result of the offense shall be on 24 . . . the Government." So it was for the Government to 25 establish that Amy is a victim who was harmed as a result of 26 Aumais' possession of her images.


28 The United States Supreme Court has recognized that the 29 distribution of child pornography is "intrinsically related 30 to the sexual abuse of children" because, inter alia, "the 31 materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by 2 their circulation." New York v. Ferber, 458 U.S. 747, 759 3 (1982); see also United States v. McDaniel, 631 F.3d 1204, 4 1208 (11th Cir. 2011). "Because the child's actions are 5 reduced to a recording, the pornography may haunt [the 6 child] in future years, long after the original misdeed took 7 place." Ferber, 458 U.S. at 759 n.10 (internal quotation 8 marks omitted).

We conclude that Amy is a victim as defined by § 2259(c).


A circuit split has opened as to whether the Government 13 must show that a victim's losses (identified in 18 U.S.C. 14 § 2259(b)(3)(A)-(F)) were proximately caused by the 15 defendant's actions, or whether it is enough to show 16 causation more generally. And within those circuits holding 17 that a showing of proximate cause is required, some rely on 18 the text of the statute and others on general rules of 19 criminal and tort law.

20 Of the circuits that have reached the causation issue, 21 most have held that the text of § 2259 requires a showing of 22 proximate cause. See McDaniel, 631 F.3d at 1209; United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999); United 2 States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). These 3 circuits have read the last phrase of § 2259(b)(3)(F) (see 4 supra at 13)--"suffered by the victim as a proximate result 5 of the offense"--to apply to all the types of loss in 6 § 2259(b)(3). As the court in McDaniel observed:

7 "When several words are followed by a clause 8 which is applicable as much to the first and other 9 words as to the last, the natural construction of 10 the language demands that the clause be read as 11 applicable to all." Porto Rico Ry., Light & Power 12 Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase 13 "as a proximate result of the offense" is equally 14 applicable to medical costs, lost income, and 15 attorneys' fees as it is to "any other losses."

Because the language of the statute is plain, our inquiry ends here.

631 F.3d at 1209 (internal citation omitted). The D.C. 20 Circuit, likewise holding that § 2259 requires a finding of 21 proximate cause, based its ruling on "traditional principles 22 of tort and criminal law and on § 2259(c)'s definition of 23 'victim' as an individual harmed 'as a result' of the 24 defendant's offense." United States v. Monzel, 641 F.3d 25 528, 535 (D.C. Cir. 2011). After reciting the "bedrock rule 26 of both tort and criminal law that a defendant is only 27 liable for harms he proximately caused," the court concluded 28 that "nothing in the text or structure of § 2259 leads us to conclude that Congress intended to negate the ordinary 2 requirement of proximate cause." Id. at 535-36 (footnote 3 omitted).

4 The only circuit to hold that a finding of proximate 5 cause is not required, the Fifth Circuit, read the phrase 6 "as a proximate result of the offense" in § 2259(b)(3)(F) to 7 apply only to that "catchall" provision, as opposed to all 8 of the loss provisions set forth in § 2259(b)(3):

9 The structure and language of § 2259(b)(3) 10 impose a proximate causation requirement only on 11 miscellaneous "other losses" for which a victim 12 seeks restitution. As a general proposition, it 13 makes sense that Congress would impose an 14 additional restriction on the catchall category of 15 "other losses" that does not apply to the defined 16 categories. By construction, Congress knew the 17 kinds of expenses necessary for restitution under 18 subsections A through E; equally definitionally, 19 it could not anticipate what victims would propose 20 under the open-ended subsection F.

In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011).

The Fifth Circuit also relied on the manifestation of a 23 "congressional purpose to award broad restitution" to 24 justify its limitation of proximate cause only to the loss 25 identified in subsection F. Id. at 199.

26 We agree with the majority of circuits and hold that 27 under § 2259, a victim's losses must be proximately caused 28 by the defendant's offense. We endorse the D.C. Circuit's 16 1 reasoning in Monzel: proximate cause is a deeply rooted 2 principle in both tort and criminal law that Congress did 3 not abrogate when it drafted § 2259. See Monzel, 641 F.3d 4 at 535-36; United States v. U.S. Gypsum Co., 438 U.S. 422, 5 437 (1978) ("Congress [is] presumed to have legislated 6 against the background of our traditional legal concepts 7 which render [proximate cause] a critical factor, and 8 absence of contrary direction" here "[is] taken as 9 satisfaction [of] widely accepted definitions, not as a 10 departure from them." (quoting Morissette v. United States, 11 342 U.S. 246, 263 (1952)) (internal quotation marks 12 omitted)); see also Hemi Group, LLC v. City of New York, --- 13 U.S. ---, 130 S. Ct. 983, 989 (2010) ("[P]roximate cause 14 thus requires 'some direct relation between the injury 15 asserted and the injurious conduct alleged.'" (quoting 16 Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 17 (1992))). The text of § 2259 cross-references the Victim 18 and Witness Protection Act of 1982, 18 U.S.C. §§ 1512-1515, 19 3663-3664, and the Mandatory Victims Restitution Act of 1996 20 ("MVRA"), 18 U.S.C. §§ 3663A, 3613A, both of which define 21 "victim" as "a person directly and proximately harmed as a 22 result of the commission of an offense for which restitution 1 may be ordered," §§ 3663(a)(2), 3663A(a)(2).

"Proximate cause" labels "generically the judicial 3 tools used to limit a person's responsibility for the 4 consequences of that person's own acts. At bottom, the 5 notion of proximate cause reflects 'ideas of what justice 6 demands, or of what is administratively possible and 7 convenient.'" Holmes, 503 U.S. at 268 (quoting W. Keeton, 8 D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of 9 Torts § 41, at 264 (5th ed. 1984)). Proximate cause demands 10 "some direct relation between the injury asserted and the 11 injurious conduct alleged." Id.

12 The magistrate judge based his finding of proximate 13 cause on the following facts, taken from Amy's Victim Impact 14 Statement and Dr. Silberg's testimony: Amy "suffered 15 understandable trauma from the abuse of her uncle . . . [and 16 t]he fact that the images of that abuse exist and remain in 17 circulation exacerbates the harm"; the viewers of Amy's 18 images contribute to the "humiliation and degradation" that 19 Amy suffers and "constitute an independent component of harm 20 which exacerbates the trauma initiated by the uncle and 21 generates a need for continuing therapy"; Amy's abuse was 22 memorialized in pictures that continue to be circulated, so 1 that she "can never regard [her] victimization as terminated 2 or as a past event to which [she] must adjust"; and Aumais' 3 viewing of Amy's images "leaves Amy and similar victims with 4 feelings that they will never be safe, of helplessness, and 5 of constant fear that they will be recognized from those 6 images by friends and strangers." Aumais I, 2010 WL 7 3033821, at *6. Moreover, the magistrate judge found that 8 "even though there may be hundreds or thousands of others 9 who, like Aumais, have possessed and used Amy's images and 10 thereby contributed to her harm, Aumais' conduct remains a 11 substantial cause of that harm" because it "exacerbates the 12 harm by confirming how expansive has become the number of 13 individuals exploiting Amy's images."


We review a district court's findings of fact for clear 15 error, but we review de novo a "district court's application 16 of th[e] facts to draw conclusions of law, including a 17 finding of liability." Travellers Int'l, A.G. v. Trans 18 World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994). So 19 called mixed questions of law and fact are also reviewed de 20 novo. Id. While the magistrate judge's findings of fact 21 are supported by evidence, we disagree that those facts 22 establish a causal connection between Aumais' possession of Amy's images and Amy's losses.

2 The magistrate judge found that "Amy had no direct 3 contact with Aumais nor even knew of his existence." Aumais 4 I, 2010 WL 3033821, at *6. Amy's Victim Impact Statement 5 makes no mention of Aumais (or any other possessor of her 6 images for that matter). Moreover, Dr. Silberg's evaluation 7 of Amy, upon which the doctor's testimony was based, took 8 place on June 11-12, 2008, July 29, 2008, and November 10, 9 2008, whereas Aumais was not arrested at the border until 10 November 16, 2008. While Dr. Silberg may describe generally 11 what Amy suffers from knowing that people possess her 12 images, Dr. Silberg cannot speak to the impact on Amy caused 13 by this defendant. As the Ninth Circuit held in rejecting 14 another of Amy's claims:

15 [T]he government's evidence showed only that [the 16 defendant] participated in the audience of persons 17 who viewed the images of Amy . . . . While this 18 may be sufficient to establish that [the 19 defendant's] actions were one cause of the 20 generalized harm Amy . . . suffered due to the 21 circulation of [her] images on the internet, it is 22 not sufficient to show that they were a proximate 23 cause of any particular losses. 24 United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 25 2011). Here, in the absence of evidence linking Aumais' 26 possession to any loss suffered by Amy, we cannot agree with 1 the magistrate judge's conclusion that "Aumais' conduct 2 remains a substantial cause of [Amy's] harm." Aumais I, 3 2010 WL 3033821, at *6.

4 This opinion does not categorically foreclose payment 5 of restitution to victims of child pornography from a 6 defendant who possesses their pornographic images. We have 7 no basis for rejecting Dr. Silberg's findings that Amy has 8 suffered greatly and will require counseling well into the 9 future. But where the Victim Impact Statement and the 10 psychological evaluation were drafted before the defendant 11 was even arrested--or might as well have been--we hold as a 12 matter of law that the victim's loss was not proximately 13 caused by a defendant's possession of the victim's image.


A proximate cause of injury can be expected to lend itself more easily to assessment and allocation than a cause 17 that is generalized or inchoate. Our conclusion--that 18 Aumais' conduct was not a proximate cause of Amy's injury-- 19 is thus confirmed by the baffling and intractable issue that 20 this case would otherwise present in terms of damages and 21 joint and several liability.*fn3

With respect to the amount of restitution, the district 2 court ordered Aumais to pay $48,483 to cover Amy's future 3 counseling costs. Aumais I, 2010 WL 3033821, at *8-9. But, 4 as the magistrate judge determined, "[t]he harm from the 5 uncle's abuse and that from possession of the images of the 6 abuse by others are closely related for purposes of 7 counseling and cannot be separate[d] to allocate costs 8 between them as it appears that Amy will require counseling 9 for both." Id. at *8. If Amy's future counseling costs are 10 thus partly caused by her uncle's abuse, then Aumais cannot 11 be responsible for all of those losses--a problem under the 12 wording of § 2259, which mandates that Aumais make 13 restitution for the full amount of Amy's losses caused as a 14 result of Aumais' possession. This difficulty is 15 illustrated by the disparate amounts of restitution ordered States v. Mather, 1:09-CR-412, 2010 WL 5173029, at *5-6 2 (E.D. Cal. Dec. 13, 2010), to $3,680,153, see United States 3 v. Staples, 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla. 4 Sept. 2, 2009).

5 A restitution award to Amy in this case would raise 6 issues as to joint and several liability. As of the date of 7 the restitution hearing, Amy had sought restitution in over 8 250 cases around the country. Aumais I, 2010 WL 3033821, at 9 *5. In one such case, United States v. Faxon, 689 F. Supp. 10 2d 1344, 1346, 1353 (S.D. Fla. 2010), Amy's lawyer estimated 11 that as of January 2010, Amy had received approximately 12 $170,000 from restitution orders and settlements. 13 In United States v. Nucci, 364 F.3d 419 (2d Cir. 2004), 14 we held that a victim may not recover more than his or her 15 actual loss. There, we observed that "the relevant sections 16 of the MVRA," id. at 423, do not in themselves prevent 17 double-recovery in the criminal context.*fn4 However, recognizing that "[a]t common law, joint and several 2 liability does not permit double recovery," we declined to 3 "read[] the statute to provide recovery in excess of the 4 amount of the loss," and accordingly applied the common law 5 rule. Id.

Section 2259(b)(4)(B) provides that "[a] court may not 7 decline to issue an order under this section because of--(i) 8 the economic circumstances of the defendant; or (ii) the 9 fact that a victim has, or is entitled to, receive 10 compensation for his or her injuries from the proceeds of 11 insurance or any other source." Our holding in Nucci 12 indicates that because Amy may already have been fully 13 compensated by others for the loss found in this case, there 14 would be "no legal basis to permit an award that allows a 15 victim to recover more than his due." Nucci, 364 F.3d at 16 424. It is in any event likely that the collection of a 17 restitution award would need to be carefully monitored to 1 what Amy has been awarded for future counseling costs.

The 2 need for such monitoring would pose significant practical 3 difficulties. As an initial matter, it is not entirely 4 clear what government body, if any, is responsible for 5 tracking payments that may involve defendants in numerous 6 jurisdictions across the country. In addition, determining 7 what amount Amy has received would entail collecting data 8 about hundreds of cases, ascertaining what money has 9 actually been paid, and determining what losses that money 10 was intended to cover.

11 Finally, as discussed above, § 2259(b)(2)--dealing with 12 the enforcement of the restitution order--cross references 13 § 3664. Section 3664(h) implies that joint and several 14 liability may be imposed only when a single district judge 15 is dealing with multiple defendants in a single case (or 16 indictment); so it would seem that the law does not 17 contemplate apportionment of liability among defendants in 18 different cases, before different judges, in different 19 jurisdictions around the country.*fn5


Aumais argues that the district court committed 4 procedural and substantive errors in sentencing Aumais to 5 121 months' imprisonment--the bottom of the Guidelines 6 range. As to procedural reasonableness, Aumais contends 7 that the district court treated the Sentencing Guidelines as 8 mandatory and presumptively reasonable. This argument is 9 refuted by the record. The district court conducted an 10 "individualized assessment" of the sentence warranted by merit.

Dorvee observed that U.S.S.G. § 2G2.2, the Guideline at issue here, can, "unless applied with great care, . . . lead 4 to unreasonable sentences that are inconsistent with what 5 § 3553 requires" because the enhancements in that Guideline 6 "routinely result in Guidelines projections near or 7 exceeding the statutory maximum, even in run-of-the-mill 8 cases." 616 F.3d at 184, 186. The various child 9 pornography enhancements applied in Dorvee resulted in a 10 Guidelines range that, at the low end, was twenty-two months 11 longer than the statutory maximum. Id. at 180.

The 12 Guidelines range calculated in this case (121-151 months) 13 was well short of the statutory maximum, which was thirty 14 years (had the district court chosen to impose consecutive 15 sentences). Moreover, the district court found that 121 16 months imprisonment was "sufficient, but not greater than 17 necessary" to comply with the purposes of § 3553(a), id. at 18 182 (quoting United States v. Samas, 561 F.3d 108, 110 (2d 19 Cir. 2009), given the violent nature of the images, the 20 number of them, and other considerations. The sentence is 21 substantively reasonable.


For the foregoing reasons, the amended judgment of conviction is affirmed in part and reversed in part.

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