The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
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
16 reflected a base offense level of 22.*fn1 The offense
was increased two levels because some of the images were
pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2);
3 levels because the material contained sadistic images,
4 U.S.S.G. § 2G2.2(b)(4); two levels because the
5 involved use of a computer, see U.S.S.G. § 2G2.2(b)(6);
6 five levels based upon the number of images in
7 possession, see U.S.S.G. § 2G2.2(b)(7)(D). Aumais'
8 level was reduced three levels for his early acceptance
9 responsibility, see U.S.S.G. § 3E1.1(a)-(b). With a
10 offense level of thirty-two and a Criminal History
of I, the recommended Guidelines range was 121 to
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
12 pay Amy $48,483 in restitution. United States v.
13 No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan.
14 2010) ("Aumais I"). The court determined that in order
15 recover restitution, Amy must show that Aumais'
16 of her images proximately caused her harm. Id. at *2.
17 so, Amy could be entitled to payments for future
18 costs "if those expenses can be reasonably estimated."
19 at *3 (citing United States v. Pearson, 570 F.3d 480,
20 (2d Cir. 2009) (per curiam)). The magistrate
21 observed, however, that the issue of "whether a
22 convicted only as a consumer of child pornography may
1 liable for restitution under § 2259 to a child
remained "unaddressed by the Second Circuit."
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 ...