United States Court of Appeals

For the First Circuit

No. 12-1639

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN K. ROGERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,

Stahl and Thompson, Circuit Judges.

Robert C. Andrews on brief for appellant.

Thomas E. Delahanty II, United States Attorney, and Margaret

D. McGaughey, Assistant United States Attorney, on brief for

appellee.

July 2, 2014
Per curiam. Following his conviction for possession of

child pornography, defendant Brian Rogers appealed both his

conviction and the district court's restitution order requiring him

to pay $3,150 to Vicky, the victim who appeared in at least nine

video clips found on his computer. We affirmed both the conviction

and the restitution order. See United States v. Rogers, 714 F.3d

82 (1st Cir. 2013). The Supreme Court granted certiorari, vacated,

and remanded for further consideration in light of its recent

decision in Paroline v. United States, 134 S. Ct. 1710 (2014). See

Rogers v. United States, 134 S. Ct. 1933 (2014). We have received

post-remand briefing from the parties. Defendant argues that the

sum of $3,150 does not accord with the causation requirements of

Paroline. He is wrong.

Paroline concerned the methodology to be used by the

district courts for crafting restitution orders, and confirmed such

awards were to be made in the exercise of the court's "discretion

and sound judgment." 134 S. Ct. at 1728. It did not change any of

the standards relevant to defendant's underlying conviction, and

defendant does not so argue. We adopt our prior reasoning as to

defendant's conviction. See Rogers, 714 F.3d at 86-88.

We also affirm the district court's restitution order. 

We review restitution orders for abuse of discretion. United

States v. Kearney, 672 F.3d 81, 91 (1st Cir. 2012). Although the

district court did not have the benefit of Paroline at the time it

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made its decision, we conclude, applying Paroline, that the order

is not an abuse of discretion. Paroline requires district courts

to "determine the amount of the victim's losses caused by the

continuing traffic in the victim's images . . . , then set an award

of restitution in consideration of factors that bear on the

relative causal significance of the defendant's conduct in

producing those losses." 134 S. Ct. at 1728. Those factors

include:

the number of past criminal defendants found

to have contributed to the victim's general

losses; reasonable predictions of the number

of future offenders likely to be caught and

convicted for crimes contributing to the

victim's general losses; any available and

reasonably reliable estimate of the broader

number of offenders involved (most of whom

will, of course, never be caught or

convicted); whether the defendant reproduced

or distributed images of the victim; whether

the defendant had any connection to the

initial production of the images; how many

images of the victim the defendant possessed;

and other facts relevant to the defendant's

relative causal role.

Id.

The district court's decision comports with these

instructions. The court considered a chart submitted by the

government showing the individual amounts of restitution orders to

Vicky that had been entered in past cases. The district court

excluded past costs and based its award on an estimate of Vicky's

future therapy costs, occasioned by defendant's conduct. It first

limited the losses to general losses from "continuing" traffic in

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Vicky's images from the period when defendant had viewed them. It

then distinguished the future therapy losses attributable to

defendant from the harm resulting from other viewers and from

Vicky's therapy needs relating to her father and the difficulty of

her relationships with male friends. The court further considered

the fact that several other defendants had been sentenced and

ordered to pay restitution for possessing images of Vicky, and that

defendant viewed the images and may also have shared them through

a file sharing program. The court commented that it would select

a restitution figure representing the cost of 18 therapy visits,

but noted that 50 visits would also have been a reasonable

conclusion. The court picked a figure at the low end. On the

basis of these factors, the court entered a restitution order of

$3,150.

This order certainly was not an abuse of discretion in

light of Paroline. Consequently, we affirm the district court's

restitution order.

So ordered.

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