FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CECILIO GALAN,

Defendant-Appellant.

No. 14-30145

D.C. No. 

6:11-cr-60148-

AA-1

OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted 

October 15, 2015—Portland, Oregon

Filed November 4, 2015

Before: Ferdinand F. Fernandez, A. Wallace Tashima,

and Carols T. Bea, Circuit Judges.

Opinion by Judge Fernandez
2 UNITED STATES V. GALAN

SUMMARY*

Criminal Law

Vacating a restitution order and remanding, the panel held

that in calculating the amount of restitution to be imposed

upon a defendant who was convicted of distribution or

possession of child pornography, the losses, including

ongoing losses, caused by the original abuse of the victim

should be disaggregated from the losses caused by the

ongoing distribution and possession of images of that original

abuse, to the extent possible. 

The panel held that the district court erred when it

declined to limit the restitution imposed upon the defendant

in that manner.

COUNSEL

Bryan E. Lessley (argued), Assistant Federal Public

Defender, Federal Public Defender’s Office, Eugene, Oregon,

for the Appellant.

Amy E. Potter (argued), Assistant United States Attorney;

S. Amanda Marshall, United States Attorney; Kelly A.

Zusman, Appellate Chief; United States Attorney’s Office,

Eugene, Oregon, for the Appellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GALAN 3

OPINION

FERNANDEZ, Circuit Judge:

Cecilio Galan appeals the district court’s restitution order,

which was entered against him after his conviction and

sentence for distribution of child pornography1

and

possession of child pornography.

2

See 18 U.S.C. § 2259(a). 

Specifically, he asserts that the district court erred when it

failed to disaggregate losses caused to Cindy3due to the

crimes perpetrated against her by the original abuser4

and

those caused to her by others who possessed or distributed

images of the abuse which were made by the original abuser. 

We agree and vacate the restitution order and remand.

BACKGROUND

Galan was not the original abuser of Cindy. That abuser

perpetrated and made images of his disgusting crimes against

Cindy over an extended period. However, those activities

ended about eleven years before Galan committed the crimes

for which he was convicted. The government sought

restitution for the losses caused to Cindy as a result of

Galan’s crimes. See id. § 2259(a), (b)(3). Those included

future lost earnings, medical expenses incurred after the date

of the earliest crimes for which Galan was convicted

 

1

See 18 U.S.C. § 2252(a)(2).

 

2

See id. § 2252A(a)(5)(B).

3 The victim uses the pseudonym “Cindy” for purposes of this litigation.

 

4 By “original abuser” we mean a person who inflicted (or participated

in the infliction of) the actual physical abuse.
4 UNITED STATES V. GALAN

(September 7, 2011), vocational rehabilitation, and the cost

of an economic report. Galan contested the government’s

calculations on the basis that no attempt was made to

disaggregate the losses resulting from the original abuse from

the losses resulting from Galan’s own activities.

The district court agreed with the government,5

and this

appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291. 

“We review de novo the legality of a restitution order and,

if the order is within the statutory bounds, we review the

amount of restitution for abuse of discretion. We review for

clear error factual findings supporting an order of restitution.” 

United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir.

2008) (citation omitted); see also United States v. Hinkson,

585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

DISCUSSION

There can be no doubt that restitution is mandatory6for

the “full amount of [Cindy’s] losses,”7 which were incurred

5 The district court declared that “until the Ninth Circuit or the Supreme

Court mandates the ‘disaggregation’ of harm and/or losses caused by the

underlying sexual abuse of child pornography victims, I will not require

the government to do so when seeking restitution.”

 

6

 18 U.S.C. § 2259(b)(4).

 

7

Id. § 2259(b)(1).
UNITED STATES V. GALAN 5

“as a proximate result of [Galan’s] offense[s].”

8

 Galan does

not dispute that. Nor does Galan claim that the categories of

losses used by the government and the district court were

improper. Similarly, he does not dispute that Cindy suffered

some losses as a result of his crimes,

9

or that he must pay

some restitution on account of those losses. The government

does not dispute that it has the burden of proving the amount

of Cindy’s losses that resulted from Galan’s crimes.10 The

question on which the parties join issue is whether it is proper

to make the restitution calculation without excluding the

ongoing losses to Cindy due to the actions of the original

abuser. 

While Congress could and should have made

determination of the amount to which a victim is entitled a

simple matter, it regrettably did not. See, e.g., Paroline, __

U.S. at __, 134 S. Ct. at 1732–33 (Roberts, C.J., dissenting);

 

8

Id. § 2259(b)(3)(F).

9 He hardly could. As the Supreme Court has pointed out: “It is

common ground that the victim suffers continuing and grievous harm as

a result of her knowledge that a large, indeterminate number ofindividuals

have viewed and will in the future view images of the sexual abuse she

endured.” Paroline v. United States, __ U.S. __, __, 134 S. Ct. 1710,

1726, 188 L. Ed. 2d 714 (2014). Moreover, “[t]he unlawful conduct of

everyone who reproduces, distributes, or possesses the images of the

victim’s abuse . . . plays a part in sustaining and aggravating this tragedy. 

And there can be no doubt Congress wanted victims to receive restitution

for harms like this.” Id.

10 It hardly could. The order of restitution “shall be issued and enforced

in accordance with section 3664.” 18 U.S.C. § 2259(b)(2). Thus: “The

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.” 18

U.S.C. § 3664(e); see also Paroline, __ U.S. at __, 134 S. Ct. at 1719.
6 UNITED STATES V. GALAN

United States v. Kennedy, 643 F.3d 1251, 1266 (9th Cir.

2011). However, the Supreme Court has answered the

question before us. In Paroline, __ U.S. at __, 134 S. Ct. at

1722, it held: “Restitution is therefore proper under § 2259

only to the extent the defendant’s offense proximately caused

a victim’s losses.”

As the Court demonstrated, the phrase “proximate cause”

hides (or encompasses) interpretive problems of its own. 

That is to say, while, in general, it is easy enough to say that

a victim’s losses from the ongoing possession and

distribution of images are direct and foreseeable results of

those activities,11

that does not mean that all of the ongoing

losses the victim suffers were in fact caused by those very

activities.12

The Court went on to discuss and describe the myriad of

problems involved in deciding what proportion of the losses

caused by trafficking should be ascribed to a possessor or

distributor of child pornographyinvolving a particular victim.

See id. at __, 134 S. Ct. at 1722–28. The number of

possessors and distributors can, of course, run into the

thousands. See id. at __, 134 S. Ct. at 1723. 

However, the Court did note a difference between original

abusers and those who engage in distribution. As it said at

the outset of its causation analysis: “Complications may arise

in disaggregating losses sustained as a result of the initial

physical abuse, but those questions may be set aside for

present purposes.” Id. at __, 134 S. Ct. at 1722. Like the

 

11 Id. at __, 134 S. Ct. at 1722.

 

12 Id.
UNITED STATES V. GALAN 7

case at hand, the case before the Court was not against an

original abuser. Nevertheless, the Court mentioned the

complications that might arise in disaggregating the losses

caused by the original abuser from those caused by others

who later possess or distribute images. If losses caused by

the latter were not to be separated from those caused by the

original abuser, there would be no complications because

there would be no need to disaggregate. Thus, the Court

plainly perceived a need for separation. In fact, the Court

again recognized the distinction between original abusers on

the one hand, and distributors and possessors on the other,

when it declared that one factor a district court could consider

in determining what proportion of the distribution losses

would fall upon an individual distributor or possessor was

whether “the defendant had any connection to the initial

production of the images.” Id. at __, 134 S. Ct. at 1728. That

underscores the fact that an original abuser is responsible for

harms caused by his actions, including ongoing harms;

distributors and possessors of images of those actions commit

separate wrongs with separate, albeit awful, harmful

consequences of their own. Moreover, it is logical to separate

the two. If an original abuser had stayed in his own

clandestine and sick little world, a terrible trauma would have

been inflicted upon the victim, and the abuser would have to

atone for all of the consequences of that wrongdoing. When

distribution of images is added, an original abuser (or another

person) would commit and put in motion a whole different set

of abuses. Those who later participate in distribution or

possession, especially at a more remote time, are part of a

distribution crime, but not of the physical-abuse crime. 

Galan’s offenses were those of a later participant; he had

nothing to do with the original abuse.
8 UNITED STATES V. GALAN

Thus, the principles set forth by the Court lead to the

conclusion that Galan should not be required to pay for losses

caused by the original abuser’s actions. As the Tenth Circuit

Court of Appeals held:

We think it inconsistent with “the bedrock

principle that restitution should reflect the

consequences of the defendant’s own

conduct” to hold [a defendant] accountable for

those harms initially caused by [the victim’s]

abuser. Thus, to the extent that the district

court relied on an expert report that did not

disaggregate these harms, the district court’s

adoption of $1.3 million as the total measure

of damages cannot stand.

United States v. Dunn, 777 F.3d 1171, 1181–82 (10th Cir.

2015) (citation omitted); see also United States v. Rogers,

758 F.3d 37, 39–40 (1st Cir. 2014) (per curiam).

We express no opinion about what portion of a victim’s

ongoing loss should be attributable to an original abuser. No

doubt that will vary from case to case depending on many

factors, for example: egregiousness of the original abuse; how

a victim can (or does) cope with that kind of abuse when

distribution of images does not follow; and the particular

victim’s own reactions to the various traumas to which the

victim has been subjected. Of course, in the case at hand, the

record does not focus on that apportionment question. We

leave the appropriate development of the record in that regard

to the parties and the district court. We have no illusion that

the task will be easy, but it does not appear any more

impossible than the other tasks imposed upon courts

attempting to apportion restitution amounts in this area. Ifthe
UNITED STATES V. GALAN 9

ultimate apportionment is not scientifically precise, we can

only say that precision is neither expected nor required. See

Paroline, __ U.S. at __, 134 S. Ct. at 1728–29. We recognize

that the ultimate decision will be a mix of “discretion and

estimation,”13and that it may result in “complication and

prolongation of the sentencing process,”14but the courts (and

the government) cannot decline to make an effort to

accomplish what Congress and the Court have required.

CONCLUSION

We hold that in calculating the amount of restitution to be

imposed upon a defendant who was convicted of distribution

or possession of child pornography, the losses, including

ongoing losses, caused by the original abuse of the victim

should be disaggregated from the losses caused by the

ongoing distribution and possession of images of that original

abuse, to the extent possible. The district court erred when it

declined to limit the restitution imposed upon Galan in that

manner.

However, we do agree that this area, in which Congress

has adopted a scheme that at least approaches the limits of

fair adjudication15despite attempts by the courts to avoid

 

13 Id. at __, 134 S. Ct. at 1729.

 

14 18 U.S.C. § 3663(a)(1)(B)(ii).

 

15 See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV.

L. REV. 353 (1978).
10 UNITED STATES V. GALAN

caprice,16cries out for a congressional solution.17In the

meantime, we must proceed with what we have in the manner

that Congress and the Court have required.

Restitution order VACATED, and REMANDED for

further proceedings consistent with this opinion.

16 See Paroline, __ U.S. at __, 134 S. Ct. at 1729 (“courts can only do

their best”); cf. id. at 1730 (Roberts, C.J., dissenting) (“it is not possible

to do anything more than pick an arbitrary number”).

17

See id. at __, 134 S. Ct. at 1735 (Roberts, C.J., dissenting); id. at __,

134 S. Ct. at 1744 (Sotomayor, J., dissenting); Kennedy, 643 F.3d at 1266.