FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 17, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-13624 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 4:09-cr-00038-RLV-WEJ-1

UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

CHADWICK BRANNON, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Northern District of Georgia

 ________________________

(May 17, 2012)

Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:

Appellant Chadwick Brannon appeals the district court’s order that he pay
restitution to a victim of child pornography, following his conviction and sentence

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

and (b)(2). On appeal, Brannon argues that the district court erred in ordering him

to pay restitution to the victim because the court held his restitution hearing more

than 90 days after his sentencing hearing, in violation of 18 U.S.C. § 3664(d)(5). 

He argues that equitable tolling did not toll the 90-day deadline, and that he did

not waive the application of the 90-day deadline. Additionally, Brannon argues

that the district court erred when it found that his possession of the child

pornography victim’s images proximately caused harm to the victim. 

Alternatively, Brannon argues that the district court erred when it ordered him to

pay an unreasonable restitution amount of $3,500 to the victim.

I. BACKGROUND

Brannon was indicted in November 2009 for knowingly receiving material

containing child pornography (Count 1) and knowingly possessing material

containing child pornography (Count 2). A jury found Brannon not guilty on

Count 1 and guilty on Count 2. As noted in the probation office’s presentence

investigation report (“PSI”), an identifiable victim, who for privacy purposes is

identified as “Vicky,” requested restitution prior to Brannon’s sentencing hearing

held on October 28, 2010. At sentencing, the district court referred the issue of

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restitution to a magistrate judge without deciding whether restitution should be

ordered.

Pursuant to 18 U.S.C. § 3664(d)(5), the district court had 90 days from

sentencing, or until January 26, 2011, to determine whether Vicky was Brannon’s

victim and, if so, the amount of Vicky’s losses. On January 14, 2011, the

magistrate judge held a telephonic hearing with the Government’s attorney and

Brannon’s attorney, at which time the court discussed the impending 90-day

deadline. Foreseeing the probability that the parties might not have information

and witnesses available within the next 12 days, the magistrate judge asked

Brannon’s attorney whether he would waive the 90-day requirement. The court

explicitly stated that Brannon would “have to waive” the deadline, and then asked,

“Will you agree in case [the hearing]’s outside the 90 days?” to which Brannon’s

attorney replied, “Yes.” [Tr. of January 14, 2011 Hr’g at 18.] Later during the

telephonic hearing, Brannon’s attorney suggested beginning the restitution hearing

within the 90-day period and finishing it, if necessary, beyond the deadline. 

Accordingly, the court set an initial hearing for January 18, 2011.

However, on January 18 Brannon was unavailable to appear because he was

in custodial transport from Virginia to Georgia; the Government was not yet

prepared to call witnesses, and thus, no evidence was presented. When the

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magistrate judge reiterated his understanding that Brannon had waived the 90-day

deadline, Brannon’s attorney said that he did not recall any mention of “the

ultimate waiver.” [R. 97 at 5.] While the attorneys discussed the possibility of

beginning the restitution hearing on January 24 or 25, no hearing transpired on

either date.

On February 23, 2011, about one month after the passing of the 90-day

deadline, Brannon filed a motion for an order denying restitution because of the

court’s noncompliance with 18 U.S.C. § 3664(d)(5). On February 25, the

magistrate judge held an informal status conference and recalled defense counsel’s

waiver of the 90-day deadline. Brannon’s attorney stated that the waiver was

contingent upon starting the evidentiary hearing within the 90-day period, and

completing it beyond the deadline, if necessary. The magistrate judge proceeded

to schedule a restitution hearing for March 30, 2011, and entered an order denying

Brannon’s February 23 motion.

At the March 30 restitution hearing, the Government presented testimony

from Dr. Randall Green who psychologically evaluated Vicky before and after

Brannon’s indictment. Dr. Green explained the nature of Vicky’s sexual abuse as

a child as well as the dissemination of recordings of the abuse on the internet. Dr.

Green bifurcated the trauma that Vicky experienced as a result of her sexual abuse

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from the trauma that she experienced as a result of her knowledge of its

distribution via the internet. He further explained her estimated costs of future

treatment to be between $170,000 and $109,000. The Government presented

further evidence that Vicky receives notification, via her attorney, each time a

criminal is prosecuted for possessing her image. After the hearing, the magistrate

judge also reviewed victim impact statements from Vicky, her mother, and her

stepfather which detailed the effects of her humiliation, pain, and fear from

knowledge that people were viewing her image.

The magistrate judge entered a report and recommendation that the district

court order Brannon to pay $3,500 in restitution to Vicky. First, the magistrate

judge noted that restitution was mandatory pursuant to 18 U.S.C. § 2259 and that

Vicky was a “victim” as defined by the statute. The magistrate judge concluded

that Vicky’s statement and Dr. Green’s testimony showed that Brannon’s

possession of her image was a proximate cause of Vicky’s ongoing harm. 

Furthermore, the magistrate judge found Dr. Green’s medical expense estimates to

be accurate and reasonable. To determine a reasonable restitution amount

attributable to Brannon, the magistrate judge researched 17 similar federal

restitution orders against “end users” of Vicky’s image. The magistrate judge

found that on average Vicky had been awarded $2,799.41 per case. The

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magistrate judge then reviewed the Government’s notice of 100 prior child

pornography restitution orders awarding to victims an average $4,321. Based on

these two averages, the magistrate judge recommended that Brannon pay Vicky

$3,500 in restitution. Over Brannon’s objections, the district court adopted the

magistrate judge’s report and recommendation and ordered restitution on July 19,

2011. Brannon then perfected this appeal.

II. DISCUSSION

A. The legality of the district court’s restitution order

Brannon argues that the district court erred in imposing restitution because

it did not hold a restitution hearing within the 90-day period prescribed in 18

U.S.C. § 3664(d)(5). The Government responds that pursuant to Dolan v. United

States, ___ U.S. ____, 130 S. Ct. 2533 (2010), the district court did not lose

authority to impose restitution by conducting a restitution hearing more than 90

days after sentencing. Brannon replies that his case is distinguishable from Dolan

because the district court in Dolan informed the defendant at sentencing that a

restitution order would be forthcoming; the only question to be determined at the

later hearing was the amount of restitution. However, as of the time of Brannon’s

sentencing hearing, the district court had not decided yet whether Brannon should

pay restitution.

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We review the legality of a restitution order de novo. United States v. Huff, 

609 F.3d 1240, 1247 (11th Cir. 2010). Title 18 U.S.C. § 3664(d)(5) requires that

[i]f the victim's losses are not ascertainable by the date that is 10 days

prior to sentencing, the attorney for the Government or the probation

officer shall so inform the court, and the court shall set a date for the

final determination of the victim's losses, not to exceed 90 days after

sentencing.

In Dolan, the Supreme Court, interpreting 18 U.S.C. § 3664(d)(5), held that when

a sentencing court misses the 90-day deadline, the court is not deprived of its

authority to order restitution. ___ U.S. at ____, 130 S. Ct. at 2539. Brannon

identifies a limitation within the Dolan holding: a district court “retains the power

to order restitution – at least where . . . the sentencing court made clear prior to

the deadline’s expiration that it would order restitution . . . .” Id. at ____, 130 S.

Ct. at 2537 (emphasis added). While the district court in the instant case made it

clear that it was going to conduct a hearing on Vicky’s claim, the court did not

make it clear, prior to January 26, 2011, that it would order restitution.

Without this limiting language in Dolan’s holding, a district court could

potentially prejudice a defendant by delaying a restitution order for an inordinate

amount of time, with no regard for the statutory deadline; consequently, a delayed

restitution order could unfairly surprise the defendant with a financial obligation

for which he had no prior notice at his sentencing. Indeed, the Dolan Court

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discussed and left open the remote possibility that a delay in setting a restitution

hearing could prejudice a defendant and threaten his due process rights. Id. at

____, 130 S. Ct. at 2541–42. However, Brannon makes no argument that the

court’s delay has prejudiced him in any way. Furthermore, Brannon had adequate

notice before, during, and after sentencing to prepare his defense against the claim

for restitution. A victim reported her claim for restitution; the PSI noted the claim;

the sentencing court acknowledged the issue and referred it to a magistrate judge

for recommendation; and the magistrate judge attempted to decide the merits of

the claim in a timely manner. The relevant restitution statute, 18. U.S.C. § 2259,

required the court to award restitution if it found that Brannon caused harm to a

victim. Thus, during the 90-day statutory period, Brannon was aware of the

likelihood, and not just the possibility, of a forthcoming restitution order. 

Consequently, it is appropriate, under the facts of this case, that we excuse the

district court’s untimely order because Brannon nevertheless had notice of his

restitution obligation and he was not prejudiced.

Moreover, after reading Dolan, we note policy reasons in support of the

Supreme Court’s decision that are also applicable here. In Dolan, the Supreme

Court found that the statutory deadline in 18 U.S.C. § 3664(d)(5) existed to

encourage the court’s “speed,” not to limit the court’s jurisdiction to a 90-day time

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period. Dolan, ___ U.S. at ____, 130 S. Ct. at 2538–39. Accordingly, the Court

found that “the Act’s efforts to secure speedy determination of restitution is

primarily designed to help victims of crime secure prompt restitution rather than to

provide defendants with certainty as to the amount of their liability.” Id. at ____,

130 S. Ct. at 2540. The Court reasoned that victims should not be made to go

without restitution simply because the Government or the district court fails to

ensure a timely restitution hearing. Id. at ____, 130 S. Ct. at 2540.

In addition to these policy motivations, the record here shows that

circumstances beyond the district court’s control led to the delay of Brannon’s

restitution hearing. For example, Brannon was in transport from Virginia to

Georgia, making him unavailable to appear at the attempted restitution hearing on

January 18, 2011. Furthermore, the attorneys expressed difficulty in contacting

and procuring information from Vicky’s attorney. Most importantly, after January

14, 2011, the magistrate judge proceeded under the assumption that Brannon’s

attorney voluntarily waived any objection to an untimely restitution hearing. 

Because Brannon was not unfairly prejudiced, because the restitution statute exists

for Vicky’s benefit and not Brannon’s, and because the court was delayed by

circumstances beyond its control, we affirm the legality of the restitution order in

spite of the district court’s noncompliance with 18 U.S.C. § 3664(d)(5).

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However, even if the untimely restitution hearing constitutes reversible

error, we conclude from the record that Brannon’s attorney invited the district

court’s error. The record shows that when the parties held a telephonic hearing

before the magistrate judge on January 14, 2011, defense counsel represented that

he would waive the requirement that the restitution hearing be held within the 90-

day period. On this date, the district court had 12 days to hold the hearing in order

to meet the deadline. The magistrate judge was not unmindful of the 90-day

requirement; he stated that he did not want to “mess up by missing this 90-day

thing.” [Tr. of January 14, 2011 Hr’g at 18.] Defense counsel replied, “I won’t

say that you messed up.” [Id.] The magistrate judge responded, “Well, yeah, but

you’ll have to waive it. Can you do that?” [Id.] After the government’s

comments, the magistrate judge asked again, “Will you agree in case [the

hearing]’s outside the 90 days?” [Id.] Defense counsel unequivocally answered

yes. While defense counsel subsequently suggested beginning the hearing within

the 90-day period and, if necessary, completing the hearing outside the 90-day

period, his suggestion in no way negated his assertion that he would waive

objection to an untimely hearing.

On January 18, 2011, the magistrate judge reiterated his understanding that

Brannon had waived any objection to an untimely restitution hearing. Defense

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counsel equivocated, saying that he did not recall mentioning “anything about the

ultimate waiver.” [R. 97 at 5.] However, the record from January 14, discussed

supra, contradicts defense counsel’s memory. Moreover, defense counsel’s

January 18 statement is ambiguous and does not amount to a clear withdrawal of

the unambiguous January 14, 2011 waiver.

“It is a cardinal rule of appellate review that a party may not challenge as

error a ruling or other trial proceeding invited by that party.” United States v.

Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam). “The doctrine of invited

error is implicated when a party induces or invites the district court into making an

error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (per curiam). 

When invited error is found to exist, it prevents us from invoking the plain error

rule and reversing. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.

2005). Here, the magistrate judge, aware of the time constraint, relied on defense

attorney’s on-the-record waiver. It would be unfair for the district court or this

court to permit Brannon’s attorney to reverse course after explicitly waiving his

objection to an untimely hearing. Therefore, even if Dolan does not extend to

Brannon’s situation, we conclude that Brannon invited the district court’s error. 

Consequently, this court will not entertain Brannon’s argument that the district

court lacked authority to impose restitution.

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B. Proximate causation and the amount of restitution

Brannon argues that the government failed to produce evidence that his

possession of Vicky’s image proximately caused her harm. The Government

responds that Dr. Green’s testimony demonstrated that Vicky suffers

psychological trauma from simply knowing that people like Brannon have viewed

images of her sexual abuse.

In determining whether proximate causation exists to support a restitution

order, we review the district court’s factual findings for clear error. United States

v. Washington, 434 F.3d 1265, 1267 (11th Cir. 2006). A district court’s factual

finding is clearly erroneous when a review of the evidence leaves us “with a

definite and firm conviction that a mistake has been committed.” United States v.

Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). In United States v. McDaniel, 631

F.3d 1204, 1209 (11th Cir. 2011), we held that a district court did not err in

concluding that an end user of Vicky’s image was a proximate cause of Vicky’s

emotional trauma. For the reasons articulated in McDaniel, and because Brannon

cannot show clear error, we affirm the district court’s finding that Brannon

proximately caused harm to Vicky.

Alternatively, Brannon argues that the court erred in calculating an

appropriate amount of restitution. Brannon contends that Vicky will ultimately

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enjoy a windfall because so many defendants like himself have been, or will be,

ordered to pay restitution to Vicky. We review the district court’s factual finding

as to the specific amount of restitution for clear error. United States v. Futrell,

209 F.3d 1286, 1289 (11th Cir. 2000). Even though the determination of the

restitution amount is “an inexact science,” under the Mandatory Victim Restitution

Act, the district court is directed to “engage in an expedient and reasonable

determination of appropriate restitution by resolving uncertainties with a view

toward achieving fairness to the victim.” Huff, 609 F.3d at 1248 (11th Cir. 2010)

(quotations omitted). The district court is required to explain its findings with

“sufficient clarity” to enable us to perform our function on appellate review. Id. 

Because the district court provided a reasoned explanation for its $3,500

restitution award, and because the court accounted for the likelihood that other

defendants would be ordered to make restitution to Vicky in the future, we affirm

the district court’s restitution calculation.

III. CONCLUSION

For the foregoing reasons, we hold that the district court did not err in

imposing restitution after missing the 90 day restitution hearing deadline required

by 18 U.S.C. § 3664(d)(5). Furthermore, we hold that the district court did not

clearly err in finding proximate cause of harm to a victim or in determining an

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appropriate restitution award. Accordingly, we affirm the district court’s order of

restitution.

AFFIRMED.1

Appellant’s motion to file Reply Brief out-of-time is GRANTED. 1

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