NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 14-2960 and 14-3800

____________

UNITED STATES OF AMERICA

v.

BRYAN JACOBS 

a/k/a “Brianna”

 a/k/a “xbriannas89x” 

 a/k/a “xBriannaS89x”

 Bryan Jacobs,

 Appellant

____________

On Appeal from United States District Court 

for the District of New Jersey

(D.N.J. No. 1-10-cr-00801-001)

District Judge: Honorable Renee M. Bumb

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 20, 2015

Before: FISHER, CHAGARES, and COWEN, Circuit Judges.

(Opinion Filed: May 4, 2015)

____________

OPINION*

____________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

FISHER, Circuit Judge.

Bryan Jacobs pled guilty to one count of receipt of child pornography. The District 

Court sentenced Jacobs to 240 months of incarceration—the statutory maximum for this 

crime—and imposed restitution in the amount of $75,000. He appeals the reasonableness 

of his sentence and the amount of restitution imposed. We will affirm.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts that are necessary 

to our analysis.

Jacobs pretended to be a teenage girl to convince minor boys to send him pictures 

of themselves in sexually explicit poses. He also extorted some boys into sending him 

pictures of themselves. In one instance, Jacobs threatened to share a minor’s pictures with 

the minor’s friends if he did not send Jacobs more pictures; in another instance, Jacobs 

threatened to accuse a minor of posting child pornography on a website if the minor did 

not send pictures. Jacobs posted the images on websites and used them to trade for more 

images of child pornography. At the time of his arrest, Jacobs had over 11,000 images 

and almost 300 videos of child pornography.

A federal grand jury in the District of New Jersey indicted Jacobs on five counts 

of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a); four counts of 
3

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

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

and (b)(2). Jacobs pled guilty to one count of receipt of child pornography. The child 

pornography referred to in this count was of one specific minor victim, whom we will 

refer to as Child Victim 1.

At the sentencing hearing, the District Court calculated Jacobs’s Sentencing 

Guidelines range to be 324 to 405 months, based on an offense level of 41 and a criminal 

history category of I. But because the statutory maximum for the offense was 20 years, 

the District Court set the Guidelines range at 240 months.1 After affording Jacobs and the 

United States an opportunity to argue for what an appropriate sentence would be, the 

District Court imposed a sentence of 240 months of incarceration to be followed by 15 

years of supervised release. The District Court set a hearing to determine whether 

restitution was appropriate for the harm done to Child Victim 1 and, if so, the amount of 

restitution. After the hearing, the District Court issued an order setting Jacobs’s

restitution at $75,000 and an opinion explaining its order. Jacobs filed a timely appeal 

from both his sentence and the restitution order. 

 

1 See 18 U.S.C. § 2252A(a)(2)(A) & (b)(1); U.S.S.G. § 5G1.1(a) (stating that 

when the statutory maximum sentence is less than the Guidelines range, the maximum 

sentence is the Guidelines sentence).
4

II.

The District Court had jurisdiction over this criminal action under 18 U.S.C. 

§ 3231. We have appellate jurisdiction over Jacobs’s challenge to his sentence and the 

restitution order under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review the 

procedural and substantive reasonableness of Jacobs’s sentence for abuse of discretion.2

We review a challenge to the appropriateness of restitution for abuse of discretion and the 

amount of loss for clear error.3

III.

A.

In reviewing a defendant’s sentence, we first ensure that the sentence was 

procedurally reasonable, and then we ensure that it was substantively reasonable.4 A 

district court commits no procedural errors when it 1) correctly calculates the applicable 

Guidelines range; 2) rules on any motions for departure and states how the departure 

affects the Guidelines range; and 3) after hearing argument from the parties on an 

appropriate sentence, considers the 18 U.S.C. § 3553(a) factors to determine the 

 

2 See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc). An 

abuse of discretion occurs when the District Court’s decision “rests on a clearly 

erroneous finding of fact, an error of law, or a misapplication of law to the facts.” Marco 

v. Accent Publ’g Co., 969 F.2d 1547, 1548 (3d Cir. 1992).

3 United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007); United States v. 

Quillen, 335 F.3d 219, 221 (3d Cir. 2003).

4 Tomko, 562 F.3d at 567.
5

appropriate sentence and places its reasoning on the record.5Jacobs says that the District 

Court made two procedural errors here. First, he argues that the District Court 

miscalculated his Guidelines range by including inapplicable enhancements. And second, 

he argues that the District Court did not consider his arguments in favor of a lesser 

sentence when it evaluated the § 3553(a) factors.

First, with respect to the District Court’s Guidelines calculation, he has waived his 

challenges. On appeal, he challenges three Guidelines enhancements: a two-level 

enhancement under U.S.S.G. § 2G2.2(b)(2), for images involving a prepubescent minor 

or a minor less than 12 years old; a six-level enhancement under § 2G2.2(b)(3)(D), for 

distributing images to a minor to induce the minor to engage in illegal activity; and a 

four-level enhancement under § 2G2.2(b)(4), for images that portrayed sadistic or 

masochistic conduct. Jacobs objected to these enhancements initially,6 but he 

affirmatively “dropp[ed]” these objections in his sentencing memorandum.7Jacobs 

 

5

Id.

6 Presentence Report at 39-41.

7 App. at 57.
6

intentionally abandoned a known right and has waived his objections.

8 Therefore, we will 

not review them.

Second, the District Court meaningfully considered the arguments Jacobs now 

raises in evaluating the § 3553(a) factors. Jacobs complains that the District Court did not 

consider his alleged disadvantaged childhood, his incarceration in a non-federal 

institution, his remorse and ability to be rehabilitated, and the alleged inadequacy of the 

child pornography Guidelines in determining an appropriate sentence. This is not correct. 

The District Court did meaningfully consider these arguments in determining an 

appropriate sentence.9Jacobs merely disagrees with the District Court’s ultimate 

evaluation of the § 3553(a) factors. That is a challenge to the substantive reasonableness 

of the District Court’s sentence.

 

8 See United States v. Olano, 507 U.S. 725, 733 (1993). Jacobs suggests that he 

did not pursue these objections because the United States “threat[ened]” that Jacobs 

would lose credit for acceptance of responsibility and that the United States might 

withdraw from the plea agreement. Appellant’s Br. at 37. With respect to the 

enhancements Jacobs now argues were incorrect, the United States only made this 

“threat” with respect to Jacobs’s objection to the § 2G2.2(b)(3)(D) enhancement. 

Presentence Report at 40-41. The United States’s “threat” was that Jacobs had stipulated 

that this enhancement would apply in the plea agreement; objecting to the enhancement 

could be construed as breaching the plea agreement, allowing the United States to 

withdraw from it, or as Jacobs’s failure to accept responsibility for the offense. Id. Given 

that the United States’s position is supported by the plea agreement, App. at 97, we see 

no basis to excuse Jacobs’s waiver.

9 App. at 313-15 (discussing Jacobs’s alleged disadvantaged childhood); App. at 

328-29 (discussing Jacobs’s incarceration in a non-federal institution); App. at 313, 321 

(discussing Jacobs’s acceptance of his responsibility for the crime and “good use of his 

time in prison”); App. at 319-21 (discussing the alleged inappropriateness of the child 

pornography Guidelines).
7

In reviewing the substantive reasonableness of a sentence, we must affirm “unless 

no reasonable sentencing court would have imposed the same sentence on that particular 

defendant for the reasons the district court provided.”10 We have no difficulty concluding 

that Jacobs’s sentence was substantively reasonable under this standard. Jacobs defrauded 

and extorted minors into creating child pornography of themselves. The District Court 

heard testimony of the impact that his conduct had on his victims. He also accumulated a 

large library of child pornography. The District Court did not abuse its discretion in 

finding that the culpability of Jacobs’s conduct required the sentence imposed even in 

light of the arguments and evidence Jacobs presented at the sentencing hearing.11

B.

Under 18 U.S.C. § 2259, the District Court was required to order restitution for 

Child Victim 1’s losses that Jacobs’s criminal conduct proximately caused.12 Here, the 

District Court found that Child Victim 1’s losses amounted to $60,000 for past medical 

expenses—mental health counseling beginning in 2006—and $15,000 for future medical 

expenses. Jacobs presents two challenges to the District Court’s award. First, he says that 

the District Court should not have awarded restitution for medical expenses incurred 

 

10 Tomko, 562 F.3d at 568.

11 With respect to the appropriateness of the child pornography Guidelines, we 

have held that a district court does not need to investigate the empirical justifications of 

those Guidelines if it agrees with the range they indicate. See United States v. LopezReyes, 589 F.3d 667, 671 (3d Cir. 2009). The District Court concluded that because it 

found the Guidelines range appropriate in this case, no inquiry was necessary. App. at 

320-21. This was not error.

12 See Paroline v. United States, 134 S. Ct. 1710, 1718-19, 1722 (2014).
8

before Child Victim 1 learned in 2009 that he actually sent pictures to Jacobs who 

distributed and posted those pictures on the Internet because those expenses must not 

have been related to Jacobs’s conduct. And second, he says that insufficient evidence 

supported the $60,000 award for past medical expenses.

We see no error in requiring Jacobs to make restitution for medical expenses Child 

Victim 1 incurred before learning in 2009 that he had communicated with Jacobs. From 

Child Victim 1’s perspective, before 2009, someone had induced him into taking pictures 

of himself at the age of 13 in sexually explicit poses. This person also extorted him into 

taking more pictures of himself by threatening to send the pictures to Child Victim 1’s 

friends. And Child Victim 1 had discovered that this person had lied about his or her 

identity while they were still communicating.

13 We agree with the District Court that it 

was “highly probable” Child Victim 1 required therapy for the harm he suffered even 

before learning exactly with whom he corresponded and what Jacobs had done with the 

pictures.

14 Accordingly, the District Court correctly determined that Jacobs’s conduct 

“was a substantial factor in causing” Child Victim 1 to seek counseling starting before 

learning Jacobs’s identity, and, therefore, restitution was appropriate.15

 

13 App. at 367.

14 App. at 33.

15 United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999).
9

As for Jacobs’s challenge to the amount of medical expenses included in the 

restitution order, our review is for clear error.16 Jacobs must show that the figure is 

“‘completely devoid of a credible evidentiary basis or bears no rational relationship to the 

supporting data.’”17 Jacobs argues that the amount of restitution for the years 2006 

through 2011 had no evidentiary basis because the Government did not produce billing 

records from this period. However, Child Victim 1’s mother submitted a statement saying 

that her family had paid approximately $60,000 for his mental health counseling over this 

period.

18 This figure was corroborated by partial records and was the best she could do 

given the loss of records over time. In light of these circumstances, this “reasonable 

approximation” was satisfactory, and the $60,000 restitution for past medical expenses 

was not clearly erroneous.19

IV.

For the reasons set forth above, we will affirm Jacobs’s sentence and the order of 

restitution.

 

16 Vitillo, 490 F.3d at 330.

17 Id. (quoting United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997)).

18 Jacobs has not challenged the use of Child Victim 1’s mother’s unsworn 

statement at the restitution hearing either before the District Court or on appeal. 

Accordingly, any objection is waived.

19 United States v. Seligsohn, 981 F.2d 1418, 1423 (3d Cir. 1992), superseded by 

statute on other grounds by U.S.S.G. § 1B1.11(b)(2); United States v. Hand, 863 F.2d 

1100, 1104 (3d Cir. 1988) (“Difficulties of measurement do not preclude the court from 

ordering a defendant to compensate the victim through some restitution.”).