10-3160-cr United States v. Aumais **UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2010 5 6 7 (Argued: June 15, 2011 Decided: September 8, 2011) 8 9 Docket No. 10-3160-cr 10 11 - - - - - - - - - - - - - - - - - - - - -x 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 -v.- 18 19 GERALD AUMAIS, 20 21 Defendant-Appellant

. 22 23 - - - - - - - - - - - - - - - - - - - - -x 24 25 Before: JACOBS, Chief Judge , WINTER and 26 McLAUGHLIN, Circuit Judges

. 27 28 Defendant-Appellant Gerald Aumais appeals from an 29 Amended Judgment of Conviction entered on August 3, 2010 in 30 the United States District Court for the Northern District 31 of New York (Sharpe, J. ). Aumais pleaded guilty to 32 transporting and possessing child pornography in violation 33 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district 34 court sentenced Aumais to 121 months’ imprisonment and 352 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 1 restitution to finance future counseling costs of “Amy,” one 2 of the victims depicted in the images and videos. On 3 appeal, Aumais challenges the restitution order on the 4 ground that his possession was not a proximate cause of her 5 loss. Aumais also argues that the district court committed 6 procedural and substantive error in sentencing him to 121 7 months’ imprisonment. We conclude that: based on the facts 8 in this case, Aumais’ possession of Amy’s images was not a 9 substantial factor in causing her loss; and that the 10 district court committed no procedural or substantive error 11 in imposing the sentence of imprisonment. Affirmed in part 12 and reversed in part. 13 GENE V. PRIMOMO, Assistant Federal Public 14 Defender (Molly Corbett, on the brief ), for 15 Lisa Peebles, Federal Public Defender, Albany, 16 New York, forDefendant-Appellant

. 17 18 PAUL D. SILVER, Assistant United States 19 Attorney (Elizabeth Horsman, Assistant United 20 States Attorney, on the brief ), forRichard S. 21 Hartunian, United States Attorney for the 22 Northern District of New York, forAppellee

. 23 DENNIS JACOBS, Chief Judge : 24 Gerald Aumais (“Aumais”) appeals from an Amended 25 Judgment of Conviction entered on August 3, 2010 in the 26 United States District Court for the Northern District of 273 New York (Sharpe, J. ). Aumais pleaded guilty to 1 transporting and possessing child pornography in violation 2 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district 3 court sentenced Aumais to 121 months’ imprisonment and 4 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 5 restitution to finance future counseling costs of “Amy” (a 6 pseudonym), one of the victims depicted in the images and 7 videos. Aumais challenges the restitution order on the 8 ground that his possession was not a proximate cause of 9 Amy’s loss. Aumais also argues that the district court 10 committed procedural and substantive error in sentencing him 11 to 121 months’ imprisonment. We conclude that: based on the 12 facts in this case, Aumais’ possession of Amy’s images was 13 not a substantial factor in causing her loss; and that the 14 district court committed no procedural or substantive error 15 in imposing the sentence of imprisonment. Affirmed in part 16 and reversed in part. 17 18 **Background** 19 Aumais attempted to enter the United States from Canada 20 at the Fort Covington, New York Port of Entry in November 21 2008, where he was referred for secondary inspection. A 221Aumais sought a two-level reduction, pursuant to U.S.S.G. § 2G2.2(b)(1), on the ground that his conduct was limited to the receipt or solicitation of child pornography. The PSR had scored an additional two levels based upon a statement Aumais allegedly made at the time of his arrest that he traded in child pornography. The district court held a brief evidentiary hearing to resolve the factual dispute. The Government called Immigration and Customs Enforcement Officer Tim Losito, who testified that, at the time of his arrest, Aumais stated that he traded in child pornography. Based on this testimony and on the volume of pornographic images in Aumais’ possession while he was 4 search of his car revealed a cache of DVDs and other 1 electronic devices that stored thousands of still images of 2 child pornography and over one hundred such videos. Aumais 3 told border agents that he owned all of the electronic media 4 located in the car and admitted to downloading the child 5 pornography from a peer-to-peer network. 6 He was charged with: (1) transporting child pornography 7 in foreign commerce, in violation of 18 U.S.C. 8 § 2252A(a)(1); and (2) possessing child pornography that had 9 been transported in foreign commerce, in violation of 18 10 U.S.C. § 2252A(a)(5)(B). On February 4, 2009, Aumais 11 entered a plea of guilty, without a written plea agreement, 12 to both counts of the indictment. 13

**A.** 14 Aumais’ Presentence Investigation Report (“PSR”) 15 reflected a base offense level of 22. 1The offense level 16ostensibly on a one-week business trip, the district court found that Aumais had traded in some materials and denied Aumais’ request for a two-point reduction. 5 was increased two levels because some of the images were of 1 pre-pubescent minors, seeU.S.S.G. § 2G2.2(b)(2); four 2 levels because the material contained sadistic images, see 3 U.S.S.G. § 2G2.2(b)(4); two levels because the offense 4 involved use of a computer, seeU.S.S.G. § 2G2.2(b)(6); and 5 five levels based upon the number of images in Aumais’ 6 possession, seeU.S.S.G. § 2G2.2(b)(7)(D). Aumais’ offense 7 level was reduced three levels for his early acceptance of 8 responsibility, seeU.S.S.G. § 3E1.1(a)-(b). With a total 9 offense level of thirty-two and a Criminal History Category 10 of I, the recommended Guidelines range was 121 to 151 11 months’ imprisonment. 12 The PSR identified a victim known as “Amy,” who sought 13 $3.3 million in restitution pursuant to 18 U.S.C. § 2259. 14 Her Victim Impact Statement explained that she was unable to 15 forget the abuse she suffered at the hands of the uncle (who 16 took the pictures) because the “disgusting images of what he 17 did to [her] are still out there on the internet.” She said 18 she lives in fear that she will be recognized in the 19 pictures that remain on the internet and will be “humiliated 206 all over again.” 1 The district court found that Aumais was a pedophile, 2 that he presented a danger to children (although the court 3 credited a polygraph result indicating that he had never 4 gone beyond viewing images), and that he was responsible for 5 harm caused to the children in the images. The district 6 court found that a sentence of 121-months’ imprisonment (the 7 low-end of the Guidelines range) was appropriate in view of 8 all the 18 U.S.C. § 3553(a) factors. Accordingly, the 9 district court imposed a sentence of 121 months’ 10 imprisonment on Count 1 and 120-months’ imprisonment on 11 Count 2, to run concurrently, and a five-year term of 12 supervised release. The district court bifurcated the issue 13 of restitution and referred the matter to a magistrate judge 14 for consideration. 15

**B.** 16 On December 22, 2009, Magistrate Judge David Homer 17 conducted an evidentiary hearing on restitution. The only 18 witness to testify, Government witness Dr. Joyanna Silberg, 19 had evaluated Amy at the request of Amy’s attorney, James 20 Marsh, on June 11-12, 2008, July 29, 2008, and November 10, 21 2008. Dr. Silberg recounted that Amy had been sexually 227 abused by her uncle between the ages of 4 and about 7 or 8, 1 that Amy underwent treatment after suffering the abuse, and 2 that the treatment allowed Amy to “function[] pretty well 3 normally” until she learned that her image was being traded 4 on the internet, after which she experienced a fear “of 5 being at parties, fear of being in public gatherings,” and 6 had difficulty coping “with her life because of her sense of 7 pervasive helplessness” about the fact that people were 8 viewing her image. Government Appendix 30-31. 9 Amy discovered that her images were on the internet 10 when she received victim notifications from The National 11 Center for Missing and Exploited Children (“NCMEC”), which 12 compares images of child pornography, identifies those 13 depicted within, and then notifies the victim every time 14 someone is arrested who is found to possess that victim’s 15 image. Knowledge that her images were still being viewed 16 caused emotional and psychological problems: she bit her 17 nails to the point of bleeding, took to alcohol, and could 18 not finish college. Dr. Silberg concluded that Amy was a 19 direct victim of Aumais’ conduct and that “Mr. Aumais 20 represent[ed] one component of the damages, because Mr. 21 Aumais is one of the individuals arrested for having looked 228 at her picture and possessing it.” SeeGovernment Appendix 1 41-43. 2 Finally, although Dr. Silberg’s contact with Amy was 3 evaluative rather than therapeutic, she recommended that Amy 4 receive therapy once a week from a professional trained in 5 the effects of sexual abuse and trauma on people in Amy’s 6 age group. Dr. Silberg opined that Amy might need three 7 courses of inpatient treatment throughout her life to deal 8 with her alcoholism. 9 On January 13, 2010, the magistrate judge issued a 10 Report and Recommendation that Aumais should be ordered to 11 pay Amy $48,483 in restitution. United States v. Aumais , 12 No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13, 13 2010) (“Aumais I”). The court determined that in order to 14 recover restitution, Amy must show that Aumais’ possession 15 of her images proximately caused her harm. Id.at *2. If 16 so, Amy could be entitled to payments for future medical 17 costs “if those expenses can be reasonably estimated.” Id. 18 at *3 (citing United States v. Pearson, 570 F.3d 480, 486-87 19 (2d Cir. 2009) (per curiam)). The magistrate judge 20 observed, however, that the issue of “whether a defendant 21 convicted only as a consumer of child pornography may be 229 liable for restitution under § 2259 to a child victim” 1 remained “unaddressed by the Second Circuit.” Id. 2 According to the Report and Recommendation, “[t]here is 3 no question that consumers, such as Aumais, contribute to 4 the exploitation of child victims, such as Amy, depicted in 5 the child pornography they possess.” Id.at *4. The court 6 recognized that “the uncle’s horrific acts of sexual abuse, 7 production of the images, and distribution of those images 8 to others unquestionably constituted the principal cause of 9 the losses identified by Amy.” Id.at *5. At the same time 10 (it was concluded), “if the harm caused by Aumais’ 11 possession of Amy’s images caused substantial harm to Amy, 12 proximate cause has been demonstrated even if the conduct of 13 others similar to that of Aumais caused equal or greater 14 harm.” Id. 15 Based on Amy’s Victim Impact Statement and Dr. 16 Silberg’s testimony, the magistrate judge found that, 17 although Amy had neither contact with Aumais nor knowledge 18 of his existence, his possession of her images exacerbated 19 the harm (originally caused by her uncle) by creating a 20 market for distribution, and by inflicting the humiliation 21 of knowing that the images are out there being exploited by 2210 a group of consumers, of whom Aumais was one. Id.at *6. 1 Although Aumais may be among hundreds or thousands of such 2 others, it was found that Amy’s harm was not thereby 3 obviated or diminished; rather, “it exacerbate[d] the harm 4 by confirming how expansive has become the number of 5 individuals exploiting Amy’s images.” Id. 6 The findings as to damages are thorough and 7 discriminating, as follows. Where “a party is responsible 8 for exacerbating a pre-existing condition, damages are 9 generally limited to that attributable to the exacerbation 10 and not the original injury.” Id.at *7. The Government 11 failed to prove by a preponderance of evidence that Aumais 12 proximately caused harm that resulted in Amy’s difficulties 13 maintaining employment. Id.But the Government did prove 14 by a preponderance of evidence that Aumais caused the need 15 for weekly counseling sessions in the next five years and 16 monthly counseling sessions for five years thereafter. Id. 17 at *8-9. Discounting future counseling costs to present 18 value, the magistrate judge found that the Government proved 19 by a preponderance of evidence that Amy is entitled to 20 $48,483. Id.at *9. 21 As to joint and several liability, the magistrate judge 2211 found that Aumais should be liable for the full amount and 1 that it was “a matter for administration by the government” 2 to prevent excess recovery. Id. 3 The district court adopted Magistrate Judge Homer’s 4 Report and Recommendation, and entered judgment on August 3, 5 2010. United States v. Aumais , No. 08-CR-711, 2010 WL 6 3034730 (N.D.N.Y. Aug. 3, 2010) (“Aumais II”). 7 8 **Discussion** 9 “We review an order of restitution ‘deferentially, and 10 we will reverse only for abuse of discretion. To identify 11 such abuse, we must conclude that a challenged ruling rests 12 on an error of law, a clearly erroneous finding of fact, or 13 otherwise cannot be located within the range of permissible 14 decisions.’” Pearson, 570 F.3d at 486 (quoting United 15 States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)). 16 We review a district court’s sentencing decision for 17 reasonableness. SeeUnited States v. Booker , 543 U.S. 220, 18 260-62 (2005). We review the sentence for substantive 19 reasonableness under a “deferential abuse-of-discretion 20 standard.” United States v. Cavera, 550 F.3d 180, 189 (2d 21 Cir. 2008) (en banc). The Court “will not substitute [its] 222In United States v. Pearson, we considered whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses; but the defendant had produced child pornography and had had direct contact with the two child victims. 570 F.3d at 482, 486- 87. 12 own judgment for the district court’s”; rather, a district 1 court’s sentence may be set aside “only in exceptional cases 2 where [its] decision cannot be located within the range of 3 permissible decisions.” Id.(internal quotation marks 4 omitted). 5 6

**I.** 7 As Magistrate Judge Homer observed, this Circuit has 8 yet to address the issue of “whether a defendant convicted 9 only as a consumer of child pornography may be liable for 10 restitution under [18 U.S.C.] § 2259 to a child victim.” 2 11 Aumais I , 2010 WL 3033821, at *3. 12 Section 2259 mandates a district court to order a 13 defendant to pay a “victim,” defined as an “individual 14 harmed as a result of a commission of a crime under this 15 chapter,” 18 U.S.C. § 2259(c), “the full amount of the 16 victim’s losses,” id.§ 2259(b)(1). The victim’s losses 17 include: 18 any costs incurred by the victim for-- 1913 (A) medical services relating to physical, 1 psychiatric, or psychological care; 2 3 (B) physical and occupational therapy or 4 rehabilitation; 5 6 (C) necessary transportation, temporary 7 housing, and child care expenses; 8 9 (D) lost income; 10 11 (E) attorneys’ fees, as well as other costs 12 incurred; and 13 14 (F) any other losses suffered by the victim as 15 a proximate result of the offense. 16 17 Id.§ 2259(b)(3)(A)-(F). “An order of restitution under 18 [§ 2259] shall be issued and enforced in accordance with 19 section 3664 in the same manner as an order under section 20 3663A.” Id.§ 2259(b)(2). Under 18 U.S.C. § 3664(e), 21 “[t]he burden of demonstrating the amount of the loss 22 sustained by a victim as a result of the offense shall be on 23 . . . the Government.” So it was for the Government to 24 establish that Amy is a victim who was harmed as a result of 25 Aumais’ possession of her images. 26

**A.** 27 The United States Supreme Court has recognized that the 28 distribution of child pornography is “intrinsically related 29 to the sexual abuse of children” because, interalia, “the 30 materials produced are a permanent record of the children’s 3114 participation and the harm to the child is exacerbated by 1 their circulation.” New York v. Ferber , 458 U.S. 747, 759 2 (1982); see alsoUnited States v. McDaniel , 631 F.3d 1204, 3 1208 (11th Cir. 2011). “Because the child’s actions are 4 reduced to a recording, the pornography may haunt [the 5 child] in future years, long after the original misdeed took 6 place.” Ferber , 458 U.S. at 759 n.10 (internal quotation 7 marks omitted). 8 We conclude that Amy is a victim as defined by 9 § 2259(c). 10

**B.** 11 A circuit split has opened as to whether the Government 12 must show that a victim’s losses (identified in 18 U.S.C. 13 § 2259(b)(3)(A)-(F)) were proximately caused by the 14 defendant’s actions, or whether it is enough to show 15 causation more generally. And within those circuits holding 16 that a showing of proximate cause is required, some rely on 17 the text of the statute and others on general rules of 18 criminal and tort law. 19 Of the circuits that have reached the causation issue, 20 most have held that the text of § 2259 requires a showing of 21 proximate cause. SeeMcDaniel , 631 F.3d at 1209; United 2215 States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999); United 1 States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). These 2 circuits have read the last phrase of § 2259(b)(3)(F) (see 3

supraat 13)--“suffered by the victim as a proximate result 4 of the offense”--to apply to all the types of loss in 5 § 2259(b)(3). As the court in McDanielobserved: 6 “When several words are followed by a clause 7 which is applicable as much to the first and other 8 words as to the last, the natural construction of 9 the language demands that the clause be read as 10 applicable to all.” Porto Rico Ry., Light & Power 11 Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase 12 “as a proximate result of the offense” is equally 13 applicable to medical costs, lost income, and 14 attorneys’ fees as it is to “any other losses.” 15 Because the language of the statute is plain, our 16 inquiry ends here. 17 18 631 F.3d at 1209 (internal citation omitted). The D.C. 19 Circuit, likewise holding that § 2259 requires a finding of 20 proximate cause, based its ruling on “traditional principles 21 of tort and criminal law and on § 2259(c)’s definition of 22 ‘victim’ as an individual harmed ‘as a result’ of the 23 defendant’s offense.” United States v. Monzel , 641 F.3d 24 528, 535 (D.C. Cir. 2011). After reciting the “bedrock rule 25 of both tort and criminal law that a defendant is only 26 liable for harms he proximately caused,” the court concluded 27 that “nothing in the text or structure of § 2259 leads us to 2816 conclude that Congress intended to negate the ordinary 1 requirement of proximate cause.” Id.at 535-36 (footnote 2 omitted). 3 The only circuit to hold that a finding of proximate 4 cause is not required, the Fifth Circuit, read the phrase 5 “as a proximate result of the offense” in § 2259(b)(3)(F) to 6 apply only to that “catchall” provision, as opposed to all 7 of the loss provisions set forth in § 2259(b)(3): 8 The structure and language of § 2259(b)(3) 9 impose a proximate causation requirement only on 10 miscellaneous “other losses” for which a victim 11 seeks restitution. As a general proposition, it 12 makes sense that Congress would impose an 13 additional restriction on the catchall category of 14 “other losses” that does not apply to the defined 15 categories. By construction, Congress knew the 16 kinds of expenses necessary for restitution under 17 subsections A through E; equally definitionally, 18 it could not anticipate what victims would propose 19 under the open-ended subsection F. 20 In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). The 21 Fifth Circuit also relied on the manifestation of a 22 “congressional purpose to award broad restitution” to 23 justify its limitation of proximate cause only to the loss 24 identified in subsection F. Id.at 199. 25 We agree with the majority of circuits and hold that 26 under § 2259, a victim’s losses must be proximately caused 27 by the defendant’s offense. We endorse the D.C. Circuit’s 2817 reasoning in Monzel : proximate cause is a deeply rooted 1 principle in both tort and criminal law that Congress did 2 not abrogate when it drafted § 2259. SeeMonzel , 641 F.3d 3 at 535-36; United States v. U.S. Gypsum Co. , 438 U.S. 422, 4 437 (1978) (“Congress [is] presumed to have legislated 5 against the background of our traditional legal concepts 6 which render [proximate cause] a critical factor, and 7 absence of contrary direction” here “[is] taken as 8 satisfaction [of] widely accepted definitions, not as a 9 departure from them.” (quoting Morissette v. United States , 10 342 U.S. 246, 263 (1952)) (internal quotation marks 11 omitted)); see alsoHemi Group, LLC v. City of New York, --- 12 U.S. ---, 130 S. Ct. 983, 989 (2010) (“[P]roximate cause 13 thus requires ‘some direct relation between the injury 14 asserted and the injurious conduct alleged.’” (quoting 15 Holmes v. Sec. Investor Prot. Corp. , 503 U.S. 258, 268 16 (1992))). The text of § 2259 cross-references the Victim 17 and Witness Protection Act of 1982, 18 U.S.C. §§ 1512–1515, 18 3663–3664, and the Mandatory Victims Restitution Act of 1996 19 (“MVRA”), 18 U.S.C. §§ 3663A, 3613A, both of which define 20 “victim” as “a person directly and proximately harmed as a 21 result of the commission of an offense for which restitution 2218 may be ordered,” §§ 3663(a)(2), 3663A(a)(2). 1 “Proximate cause” labels “generically the judicial 2 tools used to limit a person’s responsibility for the 3 consequences of that person’s own acts. At bottom, the 4 notion of proximate cause reflects ‘ideas of what justice 5 demands, or of what is administratively possible and 6 convenient.’” Holmes , 503 U.S. at 268 (quoting W. Keeton, 7 D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of 8 Torts § 41, at 264 (5th ed. 1984)). Proximate cause demands 9 “some direct relation between the injury asserted and the 10 injurious conduct alleged.” Id. 11 The magistrate judge based his finding of proximate 12 cause on the following facts, taken from Amy’s Victim Impact 13 Statement and Dr. Silberg’s testimony: Amy “suffered 14 understandable trauma from the abuse of her uncle . . . [and 15 t]he fact that the images of that abuse exist and remain in 16 circulation exacerbates the harm”; the viewers of Amy’s 17 images contribute to the “humiliation and degradation” that 18 Amy suffers and “constitute an independent component of harm 19 which exacerbates the trauma initiated by the uncle and 20 generates a need for continuing therapy”; Amy’s abuse was 21 memorialized in pictures that continue to be circulated, so 2219 that she “can never regard [her] victimization as terminated 1 or as a past event to which [she] must adjust”; and Aumais’ 2 viewing of Amy’s images “leaves Amy and similar victims with 3 feelings that they will never be safe, of helplessness, and 4 of constant fear that they will be recognized from those 5 images by friends and strangers.” Aumais I , 2010 WL 6 3033821, at *6. Moreover, the magistrate judge found that 7 “even though there may be hundreds or thousands of others 8 who, like Aumais, have possessed and used Amy’s images and 9 thereby contributed to her harm, Aumais’ conduct remains a 10 substantial cause of that harm” because it “exacerbates the 11 harm by confirming how expansive has become the number of 12 individuals exploiting Amy’s images.” Id. 13 We review a district court’s findings of fact for clear 14 error, but we review denovoa “district court’s application 15 of th[e] facts to draw conclusions of law, including a 16 finding of liability.” Travellers Int’l, A.G. v. Trans 17 World Airlines , 41 F.3d 1570, 1575 (2d Cir. 1994). So 18 called mixed questions of law and fact are also reviewed de 19

novo . Id.While the magistrate judge’s findings of fact 20 are supported by evidence, we disagree that those facts 21 establish a causal connection between Aumais’ possession of 2220 Amy’s images and Amy’s losses. 1 The magistrate judge found that “Amy had no direct 2 contact with Aumais nor even knew of his existence.” Aumais 3

I , 2010 WL 3033821, at *6. Amy’s Victim Impact Statement 4 makes no mention of Aumais (or any other possessor of her 5 images for that matter). Moreover, Dr. Silberg’s evaluation 6 of Amy, upon which the doctor’s testimony was based, took 7 place on June 11-12, 2008, July 29, 2008, and November 10, 8 2008, whereas Aumais was not arrested at the border until 9 November 16, 2008. While Dr. Silberg may describe generally 10 what Amy suffers from knowing that people possess her 11 images, Dr. Silberg cannot speak to the impact on Amy caused 12 by this defendant . As the Ninth Circuit held in rejecting 13 another of Amy’s claims: 14 [T]he government’s evidence showed only that [the 15 defendant] participated in the audience of persons 16 who viewed the images of Amy . . . . While this 17 may be sufficient to establish that [the 18 defendant’s] actions were one cause of the 19 generalized harm Amy . . . suffered due to the 20 circulation of [her] images on the internet, it is 21 not sufficient to show that they were a proximate 22 cause of any particular losses. 23 United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 24 2011). Here, in the absence of evidence linking Aumais’ 25 possession to any loss suffered by Amy, we cannot agree with 263We note one additional issue (on top of the issues discussed in this section). In Aumais II , 2010 WL 3034730, 21 the magistrate judge’s conclusion that “Aumais’ conduct 1 remains a substantial cause of [Amy’s] harm.” Aumais I , 2 2010 WL 3033821, at *6. 3 This opinion does not categorically foreclose payment 4 of restitution to victims of child pornography from a 5 defendant who possesses their pornographic images. We have 6 no basis for rejecting Dr. Silberg’s findings that Amy has 7 suffered greatly and will require counseling well into the 8 future. But where the Victim Impact Statement and the 9 psychological evaluation were drafted before the defendant 10 was even arrested--or might as well have been--we hold as a 11 matter of law that the victim’s loss was not proximately 12 caused by a defendant’s possession of the victim’s image. 13

**C.** 14 A proximate cause of injury can be expected to lend 15 itself more easily to assessment and allocation than a cause 16 that is generalized or inchoate. Our conclusion--that 17 Aumais’ conduct was not a proximate cause of Amy’s injury-- 18 is thus confirmed by the baffling and intractable issue that 19 this case would otherwise present in terms of damages and 20 joint and several liability. 3 21at *1, the district court adopted the magistrate judge’s Report and Recommendation and ordered that an Amended Judgment be issued. However, in the Amended Judgment, the district court did not check the box indicating that Aumais’ liability was joint and several with other defendants. See Government Appendix 64-65. While it is settled that “where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment . . . the oral pronouncement, as correctly reported, must control,” United States v. Marquez , 506 F.2d 620, 622 (2d Cir. 1974) (internal quotation marks omitted), it is unclear whether this is true with respect to restitution orders. 22 With respect to the amount of restitution, the district 1 court ordered Aumais to pay $48,483 to cover Amy’s future 2 counseling costs. Aumais I , 2010 WL 3033821, at *8-9. But, 3 as the magistrate judge determined, “[t]he harm from the 4 uncle’s abuse and that from possession of the images of the 5 abuse by others are closely related for purposes of 6 counseling and cannot be separate[d] to allocate costs 7 between them as it appears that Amy will require counseling 8 for both.” Id.at *8. If Amy’s future counseling costs are 9 thus partly caused by her uncle’s abuse, then Aumais cannot 10 be responsible for all of those losses--a problem under the 11 wording of § 2259, which mandates that Aumais make 12 restitution for the full amount of Amy’s losses caused as a 13 result of Aumais’ possession. This difficulty is 14 illustrated by the disparate amounts of restitution ordered 15 throughout the country, ranging from $3,000, seeUnited 164In Nucci , we observed Section 3664(f)(1)(A) requires the district court to order restitution in the full amount of the victim’s losses and does not mention what the order should provide when multiple defendants are responsible for the same loss. Section 3664(h) provides that, where there are multiple defendants, the district court may order each defendant to pay the full amount or order that 23 States v. Mather , 1:09-CR-412, 2010 WL 5173029, at *5-6 1 (E.D. Cal. Dec. 13, 2010), to $3,680,153, seeUnited States 2 v. Staples , 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla. 3 Sept. 2, 2009). 4 A restitution award to Amy in this case would raise 5 issues as to joint and several liability. As of the date of 6 the restitution hearing, Amy had sought restitution in over 7 250 cases around the country. Aumais I , 2010 WL 3033821, at 8 *5. In one such case, United States v. Faxon, 689 F. Supp. 9 2d 1344, 1346, 1353 (S.D. Fla. 2010), Amy’s lawyer estimated 10 that as of January 2010, Amy had received approximately 11 $170,000 from restitution orders and settlements. 12 In United States v. Nucci , 364 F.3d 419 (2d Cir. 2004), 13 we held that a victim may not recover more than his or her 14 actual loss. There, we observed that “the relevant sections 15 of the MVRA,” id.at 423, do not in themselves prevent 16 double-recovery in the criminal context. 4However, 17liability be apportioned to reflect each defendant’s contribution to the loss. Section 3664(j)(2) does limit restitution that would result in an overpayment to the victim, but only where compensatory damages are later recovered by the victim in a “civil” proceeding. Id.(footnote omitted). 24 recognizing that “[a]t common law, joint and several 1 liability does not permit double recovery,” we declined to 2 “read[] the statute to provide recovery in excess of the 3 amount of the loss,” and accordingly applied the common law 4 rule. Id. 5 Section 2259(b)(4)(B) provides that “[a] court may not 6 decline to issue an order under this section because of--(i) 7 the economic circumstances of the defendant; or (ii) the 8 fact that a victim has, or is entitled to, receive 9 compensation for his or her injuries from the proceeds of 10 insurance or any other source.” Our holding in Nucci 11 indicates that because Amy may already have been fully 12 compensated by others for the loss found in this case, there 13 would be “no legal basis to permit an award that allows a 14 victim to recover more than his due.” Nucci , 364 F.3d at 15 424. It is in any event likely that the collection of a 16 restitution award would need to be carefully monitored to 17 ensure that total payments by all defendants did not exceed 185In fact, two other circuits have observed, in unpublished opinions, that joint and several liability is not permissible under § 3664(h) regarding defendants in separate cases. SeeMonzel , 641 F.3d at 539 (citing United States v. McGlown, 380 F. App’x 487, 490-91 (6th Cir. 2010); United States v. Channita, 9 F. App’x 274, 274-75 (4th Cir. 25 what Amy has been awarded for future counseling costs. The 1 need for such monitoring would pose significant practical 2 difficulties. As an initial matter, it is not entirely 3 clear what government body, if any, is responsible for 4 tracking payments that may involve defendants in numerous 5 jurisdictions across the country. In addition, determining 6 what amount Amy has received would entail collecting data 7 about hundreds of cases, ascertaining what money has 8 actually been paid, and determining what losses that money 9 was intended to cover. 10 Finally, as discussed above, § 2259(b)(2)--dealing with 11 the enforcement of the restitution order--cross references 12 § 3664. Section 3664(h) implies that joint and several 13 liability may be imposed only when a single district judge 14 is dealing with multiple defendants in a single case (or 15 indictment); so it would seem that the law does not 16 contemplate apportionment of liability among defendants in 17 different cases, before different judges, in different 18 jurisdictions around the country. 5 192001)). 26 1

**II.** 2 Aumais argues that the district court committed 3 procedural and substantive errors in sentencing Aumais to 4 121 months’ imprisonment--the bottom of the Guidelines 5 range. As to procedural reasonableness, Aumais contends 6 that the district court treated the Sentencing Guidelines as 7 mandatory and presumptively reasonable. This argument is 8 refuted by the record. The district court conducted an 9 “individualized assessment” of the sentence warranted by 10 § 3553(a) “based on the facts presented,” Gall v. United 11
States , 552 U.S. 38, 50 (2007), and concluded that “nothing 12 below the minimum of the advisory guideline [and] nothing 13 above the minimum of the advisory guideline range is 14 necessary in light of the various factors that are at play 15 here.” Government Appendix at 22-23. 16 As to substantive reasonableness, Aumais principally 17 relies on our recent decision in United States v. Dorvee , 18 616 F.3d 174 (2d Cir. 2010), to support his argument that 19 the sentence was greater than necessary to serve the 20 purposes of sentencing. This argument, too, is without 2127 merit. 1

Dorveeobserved that U.S.S.G. § 2G2.2, the Guideline at 2 issue here, can, “unless applied with great care, . . . lead 3 to unreasonable sentences that are inconsistent with what 4 § 3553 requires” because the enhancements in that Guideline 5 “routinely result in Guidelines projections near or 6 exceeding the statutory maximum, even in run-of-the-mill 7 cases.” 616 F.3d at 184, 186. The various child 8 pornography enhancements applied in Dorveeresulted in a 9 Guidelines range that, at the low end, was twenty-two months 10 longer than the statutory maximum. Id.at 180. The 11 Guidelines range calculated in this case (121-151 months) 12 was well short of the statutory maximum, which was thirty 13 years (had the district court chosen to impose consecutive 14 sentences). Moreover, the district court found that 121 15 months imprisonment was “sufficient, but not greater than 16 necessary” to comply with the purposes of § 3553(a), id.at 17 182 (quoting United States v. Samas , 561 F.3d 108, 110 (2d 18 Cir. 2009), given the violent nature of the images, the 19 number of them, and other considerations. The sentence is 20 substantively reasonable. 21 2228 **CONCLUSION** 1 For the foregoing reasons, the amended judgment of 2 conviction is affirmed in part and reversed in part. 3