UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-7480

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

ALBERT CHARLES BURGESS, JR., 

Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Graham C. Mullen, 

Senior District Judge. (1:09-cr-00017-GCM-DLH-1) 

Submitted: May 31, 2016 Decided: June 16, 2016

Before GREGORY, KEENAN, and WYNN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North 

Carolina, for Appellant. Amy Elizabeth Ray, Assistant United 

States Attorney, Asheville, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM: 

Albert Charles Burgess, Jr., was convicted after a jury 

trial of knowingly possessing visual materials depicting a minor 

engaging in sexually explicit conduct, which were shipped in 

interstate commerce via computer, in violation of 18 U.S.C. 

§ 2252(a)(4)(B) (2012), and knowingly receiving visual materials 

depicting a minor engaging in sexually explicit conduct, which 

were shipped in interstate commerce via computer, in violation 

of 18 U.S.C. § 2252(a)(2). The district court sentenced Burgess 

to a total of 292 months’ imprisonment and ordered that he pay 

$305,219.86 in restitution under the Mandatory Restitution for 

Sexual Exploitation of Children Act (MRSECA), 18 U.S.C. § 2259

(2012), for losses suffered by “Vicky,” a child victim portrayed 

in pornographic material in Burgess’ possession. Burgess 

appealed, and argued, among other matters, that the district 

court had erred in ordering restitution to Vicky because it did 

not determine that his conduct proximately caused harm to her. 

This court agreed and held that 18 U.S.C. § 2259 “invokes the 

well-recognized principle that a defendant is liable only for 

harm that he proximately caused.” United States v. Burgess, 

684 F.3d 445, 457 (4th Cir. 2012). This court vacated the 

restitution order and remanded the case to the district court 

“for an individualized determination of proximate causation” of 

such losses and an appropriate award to Vicky if such causation 
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was found. Id. at 460. This court affirmed Burgess’ 

convictions and all other aspects of his sentence. Id. 

On remand, the district court entered an amended judgment 

re-imposing the 292-month prison term and imposing $600 in 

restitution. On appeal from the amended judgment, Burgess’ 

counsel has filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), stating that there are no meritorious 

issues for appeal, but raising as issues for review whether the 

district court abused its discretion in ordering that Burgess 

pay the $600 restitution sum to Vicky and whether the court 

erred in ordering Burgess to pay that sum to Vicky when the 

facts supporting the award were never admitted by him or proven 

beyond a reasonable doubt at trial. Burgess has filed three pro 

se supplemental briefs. We affirm. 

We review restitution orders for abuse of discretion. 

United States v. Llamas, 599 F.3d 381, 391 (4th Cir. 2010). 

A district court abuses its discretion when it “acts arbitrarily 

or irrationally, fails to consider judicially recognized factors 

constraining its exercise of discretion, relies on erroneous 

factual or legal premises, or commits an error of law.” United 

States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007). 

The MRSECA provides that a district court “shall order 

restitution for any offense” under chapter 110 of Title 18 of 

the United States Code, and that the restitution order “shall 
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direct the defendant to pay the victim . . . the full amount of 

the victim’s losses.” 18 U.S.C. § 2259(a), (b)(1). A “victim” 

is “the individual harmed as a result of a commission of a crime 

under this chapter.” 18 U.S.C. § 2259(c). Burgess was 

convicted of violating 18 U.S.C. § 2252-a chapter 110 

offense-and Vicky was the child victim portrayed in the 

materials in Burgess’ possession. Burgess, 684 F.3d at 448.* 

Burgess was “responsible for losses sustained by Vicky that he 

proximately caused.” Burgess, 684 F.3d at 459; see Paroline v. 

United States, 134 S. Ct. 1710, 1719-22 (2014) (holding that 

restitution is “proper under § 2259 only to the extent the 

defendant’s offense proximately caused a victim’s losses”). 

In applying § 2259’s causation requirement, district courts 

are not bound to apply any particular formula for determining 

the proper restitution amount. Paroline, 134 S. Ct. at 1728. 

Courts “might, [however,] as a starting point, 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 

 * Burgess’ arguments in his pro se briefs that he did not 

possess images of Vicky are meritless. The district court was 

precluded by the mandate rule from considering this issue on 

remand. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007); 

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). 
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significance of the defendant’s conduct in producing those 

losses.” Id. These factors could 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. 

We conclude that the district court did not abuse its 

discretion in ordering Burgess to pay $600 in restitution to 

Vicky. The district court considered Burgess’ relative role in 

the causes underlying Vicky’s undisputed losses consistent with 

Paroline and Burgess. 

Counsel and Burgess also question whether the district 

court erred in ordering payment of the $600 restitution sum to 

Vicky when the facts supporting the order were never admitted by 

Burgess or proven beyond a reasonable doubt at trial. 

We conclude that Burgess fails to establish any plain error by 

the district court in this regard. See United States v. 

Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010) (plain error 

review controls where defendant does not object to sentencing 

ruling in district court). Burgess’ challenge to the conclusion 
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that he could be held liable for restitution to Vicky in the 

absence of a finding by the jury that he possessed and received 

material containing her image was rejected as meritless in his 

initial appeal. Burgess, 684 F.3d at 455 n.5. Counsel’s and 

Burgess’ challenge premised on the lack of a jury verdict is 

thus barred by the doctrine of the law of the case, and neither 

counsel nor Burgess has suggested that any of the exceptions to 

the doctrine apply. See United States v. Aramony, 166 F.3d 655, 

661 (4th Cir. 1999) (discussing doctrine and exceptions 

thereto). Further, the district court was precluded by the 

mandate rule from considering on remand the challenge premised 

on the lack of admission by Burgess to possessing and receiving 

material containing Vicky’s image. See Doe, 511 F.3d at 465; 

Bell, 5 F.3d at 66. 

Finally, in accordance with Anders, we have reviewed the 

remainder of the record in this case and the remainder of 

Burgess’ pro se briefs and have found no meritorious issues for 

appeal. We therefore affirm the amended judgment. This court 

requires that counsel inform Burgess, in writing, of the right 

to petition the Supreme Court of the United States for further 

review. If Burgess requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, then 

counsel may move in this court for leave to withdraw from 
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representation. Counsel’s motion must state that a copy thereof 

was served on Burgess. 

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED