*

The Honorable Robert Holmes Bell, United States District Judge for the Western District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0110p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER HARGROVE, aka John

Christopher Hargrove,

Defendant-Appellant.

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No. 11-6131

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:08-cr-14-1—William J. Haynes, Jr., District Judge.

Decided and Filed: April 19, 2013 

Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge.*

_________________

COUNSEL

ON BRIEF: C. Douglas Thoresen, Andrew Brandon, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Richard A. Friedman,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., S. Carran

Daughtrey, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for

Appellee.

STRANCH, J., delivered the opinion of the court, in which BELL, D. J., joined,

and CLAY, J., joined in part. CLAY, J. (pp. 9–14), delivered a separate opinion

concurring in part and in the judgment.

1
No. 11-6131 United States v. Hargrove Page 2

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Christopher Hargrove pled guilty to

possession of child pornography. Among the hundreds of images he possessed were

those of three child victims who are now adult women known by their pseudonyms,

“Vicky,” “Amy,” and “L.S.” At sentencing the district court ordered Hargrove to pay

restitution to these victims. The court also imposed contingent joint and several liability

on Hargrove in the event the victims are unable to acquire necessary resources to pay for

their psychological treatment from defendants convicted in other cases who also viewed

the images and videos. Hargrove asks us to set aside the restitution order because the

court did not require the government to prove that he caused actual and proximate harm

to the victims and because the court lacked authority to enter the contingent restitution

order. In light of our decisions in United States v. Gamble, 709 F.3d 541 (6th Cir. 2013),

and United States v. Evers, 669 F.3d 645 (6th Cir. 2012), we vacate the restitution order

and remand the case to the district court for further proceedings.

I. PROCEDURAL HISTORY

Forensic examination of Hargrove’s computer revealed more than eight hundred

images and sixteen videos depicting the sexual exploitation of children. “L.S.” appeared

in eight of those images, “Amy” in three images, and “Vicky” in one video. In January

2008 the government indicted Hargrove on two counts of transporting child pornography

in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1) & (b)(1); one count of

receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1); and

possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(1).

Nearly one year later Hargrove pled guilty to the possession charge under a plea

agreement with the government and then absconded.

Upon return to federal custody, Hargrove pled guilty in a separate case to a

charge of failure-to-appear, in violation of 18 U.S.C. §§ 3146(a)(1), (b)(1)(A)(ii), &
No. 11-6131 United States v. Hargrove Page 3

3147(1). The court consolidated the two cases and pronounced a sentence of 60 months

in prison on the child pornography offense and 12 months in prison on the failure-toappear offense, to be served consecutively. The court also imposed twenty years of

supervised release.

Based on expert reports and other materials, the victims claimed they had

incurred substantial losses, primarily for psychological treatment: “Amy,” over $3.3

million; “Vicky,” over $148,000; and “L.S.,” $150,000. The court found that the

mandatory restitution statute, 18 U.S.C. § 2259, supplied “statutory causation” to

support restitution, but held that apportionment of the victims’ losses was appropriate

because other courts also had awarded restitution to the same victims in other cases. The

court ordered Hargrove to pay $3,000 in restitution to each victim. As an alternative, the

court imposed joint and several liability on Hargrove in the amount of $150,000 for each

victim “if it turns out these victims aren’t getting the care that they need for reason of

lack of money.” R. 166 Page ID 974.

In this timely appeal, Hargrove challenges only the restitution order. He does not

raise any issue concerning his convictions or the other aspects of his sentences.

II. STANDARD OF REVIEW

“We review de novo the question whether restitution is permitted under the law.”

Evers, 669 F.3d at 654 (citing United States v. Jones, 641 F.3d 706, 713 (6th Cir. 2011)).

If restitution is permissible, we review the amount of restitution imposed by the court

for abuse of discretion. Id. The government has the burden to prove the amount of the

victim’s loss by a preponderance of the evidence. 18 U.S.C. §§ 2259(b)(2), 3664(e);

Evers, 669 F.3d at 654–55.

III. ANALYSIS

The parties agree that the district court erred when it ordered restitution under

§ 2259 without requiring the government to demonstrate that any of the losses sustained

by “Vicky,” “Amy,” and “L.S.” were proximately caused by Hargrove’s offense. The

parties rely on Evers, 669 F.3d at 659, where we held that the government must prove
No. 11-6131 United States v. Hargrove Page 4

proximate cause with respect to all categories of losses set forth in § 2259(b)(3)(A)–(F)

before restitution may be ordered. The district court did not have the benefit of Evers

because we issued that opinion nearly six months after Hargrove’s sentencing.

More recently, in Gamble, we considered two child pornography cases in which

the district court required each defendant, jointly and severally, to pay over $1 million

in restitution to “Vicky.” Gamble, 709 F.3d at 542. Applying Evers, we held that the

government bears the burden to “show that the costs incurred by the victim were

proximately caused by the defendant’s offense.” Id. at 546.

We explained in Gamble that a child pornography victim may recover restitution

under § 2259 upon a showing that the defendant’s conduct is a cause-in-fact of the

victim’s harm—in other words, the defendant actually caused the victim’s losses—and

the defendant’s conduct proximately caused the victim’s harm. See id. at 547. To be

proximately caused, the harm must be reasonably foreseeable. Id. at 549.

Hargrove principally contends that the victims cannot show he is the cause-infact of their injuries because there is no evidence that the victims knew he possessed and

viewed their pornographic images or that the victims’ injuries were more severe because

he obtained and viewed their images. Additionally, he argues that he did not

proximately cause harm to the victims because any harm resulting from his anonymous

Internet downloads was “remote” and “indirect.”

 Some courts have adopted reasoning similar to Hargrove’s. See e.g., United

States v. Aumais, 656 F.3d 147, 154–55 (2d Cir. 2011) (holding defendant did not

proximately cause “Amy’s” loss because he was not a “substantial cause” of her harm);

United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 2011) (finding no proof of

causal connection between defendant’s offense and specific losses of “Amy” and

“Vicky”); United States v. Monzel, 641 F.3d 528, 538 (D.C. Cir. 2011) (finding no

showing that “Amy’s” losses were traceable to the defendant). But we expressly

rejected such reasoning in Gamble, stating that “[a] cause-in-fact requirement does not

necessarily mean that defendants of whom Vicky is unaware have not caused her

losses . . . . Vicky’s losses result from the knowledge that her image is being generally
No. 11-6131 United States v. Hargrove Page 5

circulated, and a district court could find that defendants like Crawford contributed to

that knowledge.” Gamble, 709 F.3d at 549 n.1 (citing United States v. Kearney,

672 F.3d 81, 98–99 (1st Cir. 2012)).

In Kearney, the child pornography possessor tried to use a but-for causation

standard to limit “Vicky’s” reasonably foreseeable losses arguing that, “because so many

have seen and distributed the pornography, his contribution cannot be said to have

caused any harm absent specific linkage to Vicky’s knowledge about him.” Kearney,

672 F.3d at 98. But Vicky’s losses result from the knowledge that her image is being

generally circulated by multiple actors. As a result of that circulation, the emotional

harm she suffers is worse than would otherwise be the case. See id. “When the conduct

of two or more actors is so related to an event that their combined conduct, viewed as

a whole, is a but-for cause of the event, and application of the but-for rule to each of

them individually would absolve all of them, the conduct of each is a cause in fact of the

event.” Id. (quoting W. Page Keeton et al., Prosser and Keeton On The Law Of Torts

§ 41, at 268 (5th ed. 1984)). Under this reasoning, Hargrove’s conduct in possessing and

viewing the victims’ pornographic images is a but-for cause of the victims’ harm. See

Gamble, 709 F.3d at 556 (Kethledge, J., concurring in part and concurring in the

judgment) (“I would . . . adopt the First Circuit’s rule of aggregate causation (though

only for purposes of determining actual cause.) See United States v. Kearney, 672 F.3d

81, 98 (1st Cir. 2012). And where that test is met, as it is here, I would simply move on

to the issue of proximate causation.”).

To the extent Hargrove’s argument relates to “proximate causation, rather than

but-for causation, the same reasoning applies to reject his contention.” See Kearney,

672 F.3d at 98. Proximate cause exists “even where ‘none of the alternative causes is

sufficient by itself, but together they are sufficient’ to cause the harm.” Id. (quoting

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 reporters’

n. cmt. g. (2010); id. § 36 cmt. a (“[E]ven an insufficient condition . . . can be a factual

cause of harm when it combines with other acts to constitute a sufficient set to cause the

harm . . . .”)). Because proximate cause “exists on the aggregate level . . . there is no
No. 11-6131 United States v. Hargrove Page 6

reason to find it lacking on the individual level.” Id. Upon adopting the First Circuit’s

reasoning in Kearney, the Fourth Circuit observed that, “[g]iven the nature of the harm

inflicted by purveyors and viewers of child pornography on their victims . . .

employment of the concept of aggregate harm in the proximate causation analysis best

effectuates the express intent of the restitution statute.” United States v. Burgess, 684

F.3d 445, 459–60 (4th Cir. 2012).

Our analysis based on Kearney is fully consistent with Gamble. There we

explained that harm must be reasonably foreseeable to be proximately caused by the

defendant’s criminal conduct, and “if the injury is the type that the statute was intended

to prohibit,” it is more likely that the injury was proximately caused by the defendant.

Id. at 549. Because “[t]he harm endured by the subject of child pornography upon

realizing that others are viewing her image is part of what the child pornography

prohibitions are designed to deter” and where the statute specifically permits restitution

for injury in the form of mental distress, the “attendant costs, to the extent factually

caused by the viewing, are proximately caused.” Id. at 550. Even if a child pornography

victim “suffers very unusual psychosomatic injuries as a result of knowing that her

mistreatment and humiliation are being viewed by others, those injuries are still part of

the harm that the laws against child pornography are trying to avoid.” Id. Likewise,

attorney’s fees incurred when undertaking reasonable efforts to obtain restitution for

mental harm are proximately caused. Id. But some losses may not be recoverable

because they do not stem from the type of injury the statute was intended to prohibit.

For instance, although § 2259(b)(3)(C) allows restitution for necessary child care

expenses, the “loss of a sex offender as a babysitter” is not “the sort of harm

contemplated by the statute’s drafters” and thus, proximate cause does not exist to justify

restitution for child care costs incurred to replace that babysitter. Id. (citing Evers, 669

F.3d at 660).

The language of § 2259, the remedial nature of the provision, and its mandatory

requirement that the defendant pay the “full amount of the victim’s losses” all point to

the expansive categories of harm § 2259 seeks to redress. But whether the injuries
No. 11-6131 United States v. Hargrove Page 7

alleged by each victim in this case fall within the scope of § 2259 so that the injuries are

more likely to be proximately caused is an inquiry reserved for the district court on

remand. If the government carries its burden to prove that a restitution award for

“Vicky,” “Amy,” or “L.S.” is appropriate, the court must consider that the defendant is

not responsible for harm that occurred before the date of his offense. See Gamble,

709 F.3d at 554. Costs for the harms Hargrove proximately caused that are “clearly

traceable” to him—such as the victims’ attorney’s fees incurred in seeking restitution in

this case—may be assessed directly to him. See id. And where the court must allocate

restitution for aggregate harm caused by multiple defendants, the court may, as one

option, apportion the restitution award using the formula described in the government’s

appellate brief and approved by this court in Gamble. Id.

Undertaking such an analysis, the district court would first determine “the pool

of a victim’s provable losses that are not traceable to a single defendant using the

proximate cause standard” elucidated in Gamble and then divide that figure by the

number of “convicted possessors” supplied by the government from its database of

convicted child pornography defendants. See id. But “[d]ifferent divisors may be

reasonable,” and the government’s “apportionment proposal is not necessarily the only

way to calculate restitution” in these kinds of cases. Id. District courts may consider

other formulas or procedures for allocating restitution to redress the victims’ injuries,

keeping in mind that the method chosen must “fairly implement Congress’s goals.” Id.

Courts may not apportion restitution by imposing joint and several liability, as was done

here. See id. at 550–53.

IV. CONCLUSION

Were we writing on a blank slate, our opinion would have examined more

thoroughly the thoughtful analysis undertaken by the concurrence. But in light of

Gamble and Evers, we are compelled to conclude that the district court’s method of

awarding restitution to “Vicky,” “Amy,” and “L.S.” amounted to an abuse of discretion.

Because the district court did not have the guidance of Gamble, Evers, or this opinion
No. 11-6131 United States v. Hargrove Page 8

when it sentenced Hargrove, we now provide the court with an opportunity to consider

the impact of these cases on Hargrove’s sentence.

We VACATE the restitution order and REMAND the case for further

proceedings consistent with this opinion, Gamble, and Evers. On remand, the district

court may consider the restitution award for each victim de novo, exercising its

discretion to admit new evidence or argument.
No. 11-6131 United States v. Hargrove Page 9

____________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

____________________________________________________

CLAY, Circuit Judge, concurring in part and concurring in the judgment. I

concur in much of the majority’s opinion and in the judgment because I find, as does the

majority, that the outcome of this case is largely controlled by our recent decision in

United States v. Gamble, 709 F.3d 541 (6th Cir. 2013). I write separately, however, to

express my dissatisfaction with Gamble’s method for apportioning restitution among

defendants convicted of child pornography possession offenses.

Admittedly, these cases pose significant challenges. Courts must attempt to

determine whether and to what extent possessors of child pornography are financially

responsible for the harm suffered by the victims of these horrific crimes. We are called

upon to apply traditional principles of restitution to a crime that has no obvious

analogue—a crime whereby individual victims are harmed by the ongoing conduct of

numerous independent perpetrators. In this unusual context, it is vital that district courts

have all available sentencing options at their disposal, including joint and several

liability, which Gamble unfortunately rejects.

As an initial matter, Gamble properly concludes that the mandatory victim

restitution statute, 18 U.S.C. § 2259, requires the government to prove that a victim’s

losses were proximately caused by the defendant’s conduct. Gamble, 709 F.3d at 547

(citing United States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012)). To satisfy the

requirement of proximate cause, a victim’s losses must be “directly attributable” to and

a “reasonably foreseeable” result of the defendant’s conduct. Id. I have no quarrel with

that standard, but for all the ink spilled over the issue of proximate cause in these cases,

it gets us no closer to a satisfying method of determining what portion of a victim’s

losses, if any, should be charged to any individual defendant. See United States v.

Burgess, 684 F.3d 445, 462 (4th Cir. 2012) (Gregory, J., concurring in part, dissenting

in part, and concurring in the judgment) (“The question of whether a defendant
No. 11-6131 United States v. Hargrove Page 10

proximately caused some injury is entirely separate from the question of how those

proximately caused losses should be allocated among several offenders.”).

The discussion of proximate cause in Gamble is not terribly helpful because the

analysis of causation, both proximate (legal) and but-for (factual), is relatively

straightforward once traditional tort-law principles of aggregate causation are employed.

Defendants in these cases argue that the diffuse and anonymous nature of their conduct

precludes a finding that they were the factual causes of any injuries. The majority

properly clarifies that which Gamble left somewhat vague, that even if conduct is

insufficient by itself to cause a given harm, liability attaches when the conduct is

sufficient to cause the harm when combined with the wrongful conduct of others. See

Maj. Op. at 5; see also Gamble, 709 F.3d at 556 (Kethledge, J., concurring); Restatement

(Third) of Torts: Liability for Physical & Emotional Harm § 27 cmt. f (2010). If the

opposite rule were adopted, each defendant would be able to escape restitution even

though it is undisputed that the defendants’ collective action caused the victims’ harm.

Once factual causation is established, we next ask whether the victims’ losses

were proximately caused by a given defendant’s conduct. The majority properly uses

the same theory of aggregate causation to find proximate cause in this case. Maj. Op.

at 5; see also United States v. Kearney, 672 F.3d 81, 98 (1st Cir. 2012) (“Proximate

cause . . . exists on the aggregate level, and there is no reason to find it lacking on the

individual level.”). Because each possessor of child pornography contributes to the

conduct that undisputably causes harm to the victims, that harm is “directly attributable”

to the perpetrators and, with a few small exceptions, is “reasonably foreseeable.”

Gamble, 709 F.3d at 547; Evers, 669 F.3d at 660 (finding that the “loss of a sex offender

as a babysitter” was not a foreseeable result of a child pornography offense).

After a defendant is found to be both a factual and proximate cause of a victim’s

harm, the statute requires an order of restitution for “the full amount of the victim’s

losses.” 18 U.S.C. § 2259(b)(1). Under the theory of aggregate causation that both

Gamble and the majority endorse, each defendant should be considered to have caused

the entirety of the victim’s harm. Yet both favor grafting an apportionment regime onto
No. 11-6131 United States v. Hargrove Page 11

the proximate cause requirement. Gamble even acknowledges this by stating that the

question of apportionment “is in a sense distinct from that of proximate causation,

because if the injuries for which Vicky seeks restitution were caused in fact by the

defendants, most of the types of damages she seeks are proximate.” Gamble, 709 F.3d

at 551. However, in an effort to avoid “unlimited liability for a single action,” Gamble

goes on to sanction a needlessly rigid apportionment scheme and reject the obvious

solution of joint and several liability.

As with restitution in other criminal contexts, the statute empowers the district

courts to issue and enforce restitution orders in child pornography cases according to the

procedures outlined in 18 U.S.C. § 3664. See 18 U.S.C. § 2259(b)(2). Among these

procedures is § 3664(h), which states:

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.

Id. § 3664(h). By authorizing joint and several liability or apportionment at the district

court’s discretion, this provision gives the district courts appropriately wide latitude to

fashion restitution awards to best effectuate the statute’s purpose of fully compensating

victims. As the en banc Fifth Circuit has held, the mechanism of joint and several

liability authorized by § 3664(h) “applies well in these circumstances, where victims [of

child pornography] are harmed by defendants acting separately who have caused [them]

a single harm.” In re Amy Unknown, 701 F.3d 749, 769 (5th Cir. 2012).

Several courts have held that the joint and several liability envisioned in

§ 3664(h) applies only when multiple defendants are sentenced in the same proceeding

before the same district court. See United States v. Fast, 709 F.3d 712, 723 n.6 (8th Cir.

2013); United States v. Laraneta, 700 F.3d 983, 992–93 (7th Cir. 2012); United States

v. Aumais, 656 F.3d 147, 156 (2d Cir. 2011); United States v. Monzel, 641 F.3d 528, 539

(D.C. Cir. 2011); cf. United States v. McGlown, 380 F. App’x 487, 491 (6th Cir. 2010)

(finding that § 3664(h) does not apply where non-defendants contributed to a victim’s
No. 11-6131 United States v. Hargrove Page 12

loss, but declining to address whether defendants must be part of the same case). These

cases overread the statute. If a sentencing judge can order each defendant in a multidefendant case to pay the full amount of a victim’s losses, there is no reason to prohibit

the judge from doing the same thing when other defendants were convicted of the same

crime in other jurisdictions. See In re Amy Unknown, 701 F.3d at 770 (“[N]othing in

§ 3664 forbids [joint and several liability], either expressly or through implication; the

fact that it conforms well to this context supports its application.”); Fast, 709 F.3d at 727

(Shepherd, J., concurring in part and dissenting in part).

Traditional tort-law principles also counsel in favor of giving district judges the

option of joint and several liability in this context. In a typical multi-defendant tort

action, an indivisible injury caused by numerous defendants would lead to the imposition

of joint and several liability, with the risk that some defendants will be unable to pay

borne by the other defendants, not the victim. See Restatement (Third) of Torts:

Apportionment of Liability § A18, cmt. a (2000). The historical policy decision to shift

the burden of insolvency from tort plaintiffs to defendants fits perfectly with the

statutory goal of fully compensating victims of child pornography. See S. Rep. No. 103-

138, at 56 (1993) (stating that mandatory restitution for victims of sex crimes is designed

to create an assumption that defendants will pay the victims’ expenses).

Gamble and other courts have rejected joint and several liability because

defendants in these cases are either functionally or legally prohibited from seeking

contribution from each other. See Gamble, 709 F.3d at 552; Laraneta, 700 F.3d at 992

(citing Northwest Airlines, Inc. v. Transport Workers Union of America AFL-CIO,

451 U.S. 77, 96–97 (1981)). However, even without a right of contribution, the statutory

scheme contains mechanisms to ensure that defendants are not saddled with unfair or

arbitrary restitution awards.

The district courts are given discretion to enforce the awards through all

“available and reasonable means,” 18 U.S.C. § 3664(m)(1)(A)(ii), including establishing

a payment schedule after considering the defendant’s financial resources, assets,

projected future income, and financial obligations, id. § 3664(f)(2). If the defendant’s
No. 11-6131 United States v. Hargrove Page 13

financial circumstances change, the district court may “adjust the payment schedule, or

require immediate payment in full, as the interests of justice require.” Id. § 3664(k).

Using information provided either by the victims themselves or the government, district

courts would also be able to adjust or halt the payment of restitution once a victim is

fully compensated. See Burgess, 684 F.3d at 462 (Gregory, J., concurring in part,

dissenting in part, and concurring in the judgment) (“While joint and several liability

gives the plaintiff the option of collecting from any defendant she chooses, she may not

recover more than her total loss.”).

Joint and several liability may not always be appropriate, but it should be one

option available to the district courts when they order defendants to pay restitution to the

victims of child pornography. That option seems especially appropriate in cases such

as this, where victims were harmed by the knowledge that people like Defendant were

viewing images of their abuse, and their harm is not susceptible to division. However,

if the district court were presented with evidence that a given defendant was more or less

culpable than other possessors of child pornography, the statute empowers the court to

“apportion liability among the defendants to reflect the level of contribution to the

victim’s loss.” 18 U.S.C. § 3664(h).

The formula endorsed by Gamble does not give the district courts the freedom

to make these individualized inquiries into the facts and circumstances of a

particular defendant’s crime. Gamble purports to acknowledge that district courts have

“considerable discretion” to fashion appropriate restitution awards, but then proceeds to

narrow that discretion by recommending adherence to a rote formula. Gamble, 709 F.3d

at 554. Instead, the district courts should be free to impose restitution based on facts that

bear on a defendant’s culpability relative to other defendants as well as the nature and

extent of the victims’ losses. Judge Kethledge identified a number of these factors in his

concurring opinion in Gamble; they include “whether the defendant produced or

distributed images of the victim” and “how many images the defendant possessed.”

Gamble, 709 F.3d at 557 (Kethledge, J., concurring). If the district court concludes that

it can separate out a victim’s losses and apportion restitution based on factors such as
No. 11-6131 United States v. Hargrove Page 14

these, it should have the discretion to do so. On the other hand, if the district court finds

that the harm done is truly indivisible and cannot be meaningfully apportioned among

defendants, it should have the discretion to impose joint and several liability based on

the aggregate or cumulative harm suffered by the victim.

To accomplish the difficult task of assigning financial responsibility to

possessors of child pornography for the harm caused by their conduct, district judges

should have all the tools provided by law at their disposal and should be permitted broad

discretion to fashion an appropriate remedy—something that Gamble’s formulaic

approach utterly fails to do. Although Gamble suggests that other allocation formulas

or procedures for determining restitution may be used, it fails to describe any method

other than the one it approves, and it specifically rejects joint and several liability. The

district courts should be permitted to apportion a victim’s losses based on individualized

determinations, impose joint and several liability, or devise alternative methods for

allocating varying degrees of fault among perpetrators. I disagree with Gamble to the

extent that it excludes these options and severely circumscribes the district courts’

discretion, but because I acknowledge Gamble’s binding authority, I respectfully concur

in the Court’s judgment.