United States v. David Rothenberg

Case: 17-12349 Date Filed: 05/08/2019 Page: 1 of 67

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12349

________________________

D.C. Docket No. 0:16-cr-60054-WJZ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID ROTHENBERG,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 8, 2019)

Before ED CARNES, Chief Judge, and ROSENBAUM and HULL, Circuit Judges.

HULL, Circuit Judge:

After his guilty plea to possession of child pornography, David Rothenberg

appeals from the district court’s restitution order requiring him to pay a total of

Case: 17-12349 Date Filed: 05/08/2019 Page: 2 of 67

$142,600 in restitution to nine victims depicted in the images of child pornography

that he possessed. Section 2259 mandates that district courts order defendants “to

pay the victim . . . the full amount of the victim’s losses” as determined by the

court. 18 U.S.C. § 2259. This case involves the question of how to calculate the

amount of restitution a possessor of child pornography, like the defendant

Rothenberg, must pay to a victim whose childhood sexual abuse appears in the

pornographic images he possessed but did not create or distribute.

On appeal, Rothenberg argues that: (1) the district court’s restitution order is

flawed as to all of the victims because it failed to calculate and then disaggregate

the victim’s losses caused by the initial abuser, distributors, and other possessors

from those caused by Rothenberg himself; and (2) as to eight of the victims, the

restitution award is not supported by competent evidence. After review, and with

the benefit of oral argument, we conclude that the district court was not required to

calculate and disaggregate the victim’s losses in the manner Rothenberg suggests

and that reliable evidence supports the restitution awards as to eight victims, but

not as to one victim. We thus affirm the restitution amounts as to eight victims and

vacate and remand as to one victim.

I. INDICTMENT AND GUILTY PLEA

Defendant Rothenberg used to be a lawyer, a fact he told an undercover

officer in an internet chatroom called “daddaughtersex.” Rothenberg also sent the

2

Case: 17-12349 Date Filed: 05/08/2019 Page: 3 of 67

officer videos of child pornography and bragged that he was sexually exploiting a

young girl at his house. In 2016, local and federal law enforcement went to

Rothenberg’s house and rescued the young girl, who confirmed that Rothenberg

had engaged in sexual activity with her. The officers also found and seized

Rothenberg’s laptop, which contained approximately 1,000 unique video and

picture files of child pornography. Some of those images depicted prepubescent

children under the age of 12, and some portrayed sadistic and masochistic conduct,

such as the binding and gagging of minor children.

In 2016, a grand jury charged Rothenberg with: (1) four counts of

distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1)

(Counts 1, 3, 4, and 5); (2) one count of receipt of child pornography, in violation

of 18 U.S.C. § 2252(a)(2) & (b)(1) (Count 2); and (3) one count of possession of

child pornography depicting a minor under the age of 12, in violation of 18 U.S.C.

§ 2252(a)(4)(B) & (b)(2) (Count 6). Pursuant to a written plea agreement,

Rothenberg pled guilty to the possession offense in Count 6, and the government

agreed to dismiss the receipt and distribution charges in Counts 1 through 5. The

district court sentenced Rothenberg to 210 months’ imprisonment.

On appeal, Rothenberg does not challenge his guilty plea or sentence.

Rather, Rothenberg challenges only the district court’s restitution order granting a

total of $142,600 to nine victims, which consists of: (1) $10,000 to Sierra;

3

Case: 17-12349 Date Filed: 05/08/2019 Page: 4 of 67

(2) $3,000 to Jane; (3) $5,000 to Pia; (4) $5,000 to Mya; (5) $20,000 to Sarah;

(6) $9,000 to Vicky; (7) $23,000 to Amy; (8) $42,600 to Jenny; and (9) $25,000 to

Casseaopeia. We outline the thorough process the district court followed, the

evidence submitted, and then the district court’s findings and conclusions.

II. RESTITUTION PROCEEDINGS

After sentencing, the district court considered restitution requests pursuant to

18 U.S.C. § 2259(a), which provides for mandatory restitution to child

pornography victims. Generally, the process worked as follows. First, the

government identified the individual victims depicted in the images of child

pornography found on Rothenberg’s computer and notified them or their attorneys

of the upcoming restitution hearing. Then a victim’s attorney submitted a

restitution request and supporting documentation to the government. Next, the

government determined whether to support that request or ask the district court for

a different amount. Rothenberg could agree to the request, try to negotiate down

with the government or the victim’s attorney, or challenge the request before the

district court.

Eventually the government submitted restitution requests on behalf of ten

victims, all of whom were identified in at least one of the images of child

pornography from Rothenberg’s computer. One of the victims, “Angela,” later

withdrew her request, leaving nine requests at issue for the hearing.

4

Case: 17-12349 Date Filed: 05/08/2019 Page: 5 of 67

A. Pre-Hearing Memoranda

Prior to the restitution hearing, both parties submitted lengthy memoranda

addressing (1) how the restitution determination should be made, and (2) what the

award should be for each victim. The government and Rothenberg agreed that the

Supreme Court’s decision in Paroline v. United States, 572 U.S. 434, 134 S. Ct.

1710 (2014), governed how the restitution awards should be made, established a

proximate cause requirement, and set forth a variety of factors for district courts to

consider in determining the proper amount of restitution. Under Paroline’s

proximate causation requirement, a defendant should pay restitution “in an amount

that comports with the defendant’s relative role in the causal process that underlies

the victim’s general losses.” Paroline, 572 U.S. at 458, 134 S. Ct. at 1727.

But the parties disagreed about how exactly to apply the Paroline factors and

how to calculate and determine that amount. The government recognized that,

under Paroline, the district court must impose restitution in an amount that reflects

the particular defendant’s relative role in the continuing traffic in the child

pornography images of the victim. The government proposed that the district court

make that calculation by using a variation of what is known as the “1/n method,”

whereby the court would divide the total amount of each victim’s losses by the

number of defendants, across multiple prosecutions, who had been ordered to pay

restitution to the victim. The government submitted that this method would

5

Case: 17-12349 Date Filed: 05/08/2019 Page: 6 of 67

provide the district court a starting point from which to exercise its discretion in

determining the appropriate amount of restitution vis-à-vis Rothenberg, as only a

possessor of images of child pornography.

Rothenberg argued, by contrast, that the starting point should be

“apportionment between the original abuser of the child, versus the distributor, and

later, possessor of the pornography,” which Rothenberg referred to as

“disaggregation.” Rothenberg asserted that this disaggregation requires two steps:

first, the district court must separate the harm caused by the original abuser from

that caused by later distributors and possessors; and second, the district court must

separate the harm caused by the defendant from that caused by other distributors or

possessors.

Below, we detail for each victim (1) the victim’s restitution request and

supporting evidence, (2) the government’s position, and then (3) Rothenberg’s

position.

B. Sierra

Sierra submitted a restitution request for $10,000. In support of her request,

Sierra submitted a medical letter from Dr. Sharon W. Cooper, a forensic

pediatrician, based on her December 2015 evaluation of Sierra. Dr. Cooper

explained that victims of child pornography can experience physical, emotional,

and spiritual issues as a result of their online exploitation, including immunological

6

Case: 17-12349 Date Filed: 05/08/2019 Page: 7 of 67

problems, posttraumatic stress disorder (“PTSD”), anxiety, depression, suicidal

ideation, and feelings of hopelessness. Dr. Cooper noted that “[w]hen images are

known to be in distribution, the pre-existing dysfunction caused by the initial abuse

is typically worsened, since children remain at risk for further victimization by the

ongoing downloading, trading and possession of their images.”

With respect to Sierra specifically, Dr. Cooper stated that Sierra’s medical

evaluation showed she suffered from worsening insomnia, attention deficit

hyperactivity disorder (“ADHD”), depression, suicidal ideation, PTSD, and mood

lability. Dr. Cooper noted that, despite being on five different medications,

Sierra’s condition remained unstable and she recently required emergency

treatment for suicidality. Dr. Cooper opined that “[t]he ongoing presence of

trafficking in images [of Sierra] on the Internet constitutes a significant aspect of

psychological maltreatment that will add on to the initial adversities” caused by the

original abuse. Based on Sierra’s past medical history, the documented adversities

faced by victims of child sexual abuse and child pornography offenses, and

Sierra’s present medical symptoms, Dr. Cooper estimated a total cost of

$661,453.00 for Sierra’s future medical care.

Sierra’s counsel also submitted a declaration of attorney’s fees, indicating

Sierra had incurred nearly $5,000 in attorney’s fees in connection with this case.

7

Case: 17-12349 Date Filed: 05/08/2019 Page: 8 of 67

The government supported Sierra’s $10,000 restitution request. The

government observed that four other defendants had been ordered to pay restitution

to victims in the same series of images as Sierra. Those awards were for $4,000,

$1,000, $9,000, and $2,000.

Rothenberg opposed Sierra’s restitution request. Rothenberg noted that he

possessed only one image of Sierra1 and that the requested restitution amount was

more than double the average of Sierra’s prior awards ($4,000). Rothenberg

argued that Sierra’s restitution materials made no attempt at disaggregation and

that the government provided no information to demonstrate the relative amount of

Sierra’s harm caused by his conduct.

C. Jane

Jane submitted a restitution request for $3,000. In support of her request,

Jane submitted a victim impact statement, a psychological report, and an economic

report. In her victim impact statement, Jane specifically described how the online

trade in her child pornography images had affected and would continue to affect

her. Jane explained: “Knowing people are watching what happened gives me a

mix of anxiety, sadness, anger and it disgusts me. . . . If it wasn’t out there, I

wouldn’t be as fearful as I am now.” Jane elaborated that the circulation of her

1

Throughout we refer to how many images of a victim Rothenberg had. Each of the

images recounted in this case were child pornography, and for brevity sometimes we refer to

them simply as “images.”

8

Case: 17-12349 Date Filed: 05/08/2019 Page: 9 of 67

images made her feel afraid and unsafe because she worried that someone who had

seen her images online might recognize her and try to harm her. Jane felt that her

future would not be “very bright” and would be lonely because the existence of her

images online made her socially isolated.

Jane’s psychological evaluation was performed by Dr. Jennifer Clark in

December 2014 “to determine the psychological effects of her continuous re-

victimization in the form of Internet pornographic images and videos of her being

exchanged and viewed.” Dr. Clark opined that the online trade in Jane’s images

was currently impacting her, causing her great fear and anxiety and leaving her

feeling unsafe and vulnerable. Dr. Clark observed that the trade in Jane’s images

would continue to impact her in the future by exacerbating her “deep sense of

mistrust in others” from the original abuse and hindering her healing and recovery

process. Dr. Clark explained: “[Jane’s] awareness of the ongoing presence and

distribution of [her] images will remain an ever present trigger to memories of

what happened and a source of fear for her safety, and thus, ongoing psychological

distress. Therefore, Jane will require therapy throughout her life. . . . Given that

much of Jane’s distress manifests in somatic symptoms and physiological distress,

she likely will also seek and need significant medical attention in the future.”

9

Case: 17-12349 Date Filed: 05/08/2019 Page: 10 of 67

Jane’s economic evaluation estimated that she would have future medical

and therapy costs of $101,027, and lost wages of between approximately $1.9 and

$3.9 million.

The government agreed that Jane’s $3,000 restitution request was

appropriate. The government noted that seven other defendants had been ordered

to pay restitution to Jane. Three of those seven defendants were ordered to pay

$1,000, two were ordered to pay $2,500, one was ordered to pay $3,000, and one

was ordered to pay $500.

Rothenberg disputed Jane’s requested amount and argued that a restitution

amount of $800 would be appropriate. Rothenberg noted that he possessed four

images of Jane and that the average award to Jane from the prior cases was $1,642.

Rothenberg acknowledged that Jane’s restitution materials were “the best of all

provided to attempt disaggregation,” but argued his possession did not warrant a

$3,000 award when compared with other defendants. Specifically, Rothenberg

noted that one of the prior cases with a $1,000 restitution order involved

distribution, and three of the other cases involved receipt of Jane’s images.

D. Pia

Pia submitted a restitution request for $5,000. In support of her request, Pia

submitted an interim impact statement from Dr. Marsha Hedrick, who conducted a

forensic psychological evaluation of Pia, a declaration of attorney’s fees, and a

10

Case: 17-12349 Date Filed: 05/08/2019 Page: 11 of 67

victim impact statement from Pia’s mother. Dr. Hedrick noted that Pia

experienced anxiety, nightmares, suspiciousness, and sadness and was emotionally

withdrawn. Dr. Hedrick explained that “[s]eparating the extent to which these

difficulties are related to sexual abuse by her father versus her awareness that her

sexual abuse is being viewed by others is not entirely possible,” but it was clear

internet exploitation adds a layer of complexity to the psychological damages

victims of child sexual abuse face. Indeed, Dr. Hedrick noted that Pia’s mother

had explained to Pia there was no way to remove from the internet the images of

her sexual abuse, resulting in “a level of suspiciousness and concern about

exploitation that is atypical for Pia’s peers” and likely caused Pia to experience

feelings of powerlessness. Dr. Hedrick estimated the cost of Pia’s therapy needs as

$81,900, but explained that estimate reflected only the “current, most critical

needs” for Pia and there was no way to know what the full extent of her losses

would be over the course of her lifetime.

The government concurred in Pia’s $5,000 restitution request. The

government did not have information on any other defendants that were ordered to

pay restitution to Pia, but Pia’s counsel advised one other defendant was ordered to

pay restitution.

Rothenberg disputed Pia’s requested amount and instead proposed a

restitution award of $1,100. Rothenberg contended there was “no real attempt at

11

Case: 17-12349 Date Filed: 05/08/2019 Page: 12 of 67

disaggregation” in Pia’s restitution documents, but agreed some amount of

restitution was appropriate based on the number of images (14) he possessed of

Pia. Rothenberg reasoned that $1,100 was appropriate because the government

had requested $2,000 in restitution for Jenny (discussed below), and he possessed

half as many images of Pia as he had of Jenny.

E. Mya

Mya submitted a restitution request of $5,000. In support of her request,

Mya’s counsel submitted a restitution cover letter and declarations from both of

her attorneys. Mya’s counsel represented that they were still awaiting the results

of Mya’s psychological evaluation, but that other similarly situated child

pornography victims they had represented had psychological treatment costs

exceeding $100,000. Mya’s counsel stated that Mya was aware of the existence of

her images on the internet and “the knowledge that others have witnessed and even

enjoyed [her] abuse is extremely upsetting to [her].” Counsel further represented

that Mya was distrustful of other people and was at risk of being stalked or

victimized by individuals who had seen her images online. Counsel also

represented that they had expended $2,077.44 thus far in representing Mya and two

other victims in the same series (one of whom was victim Pia, discussed above),

and anticipated total legal costs of $30,000 for those three victims.

12

Case: 17-12349 Date Filed: 05/08/2019 Page: 13 of 67

The government did not concur in Mya’s $5,000 restitution request. The

government noted that there was no information on whether other defendants were

ordered to pay restitution to Mya and determined that “[g]iven that [Rothenberg]

possessed a single image of Mya and the future medical costs have not yet been

established,” a restitution award of $500 was appropriate. The government stated

that amount was neither trivial nor too severe.

Rothenberg argued there was no sufficient basis for awarding any restitution

to Mya given the lack of information regarding her future medical costs.

Rothenberg also noted that he made an offer to Mya’s counsel to pay the $500

amount the government sought, but that offer was rejected.

F. Sarah

Sarah submitted a restitution request of $25,000. In support of her request,

Sarah submitted, among other things, a cover letter, a victim impact statement, a

2014 psychological evaluation by Dr. Randall Green, and an economic report. In

the cover letter, Sarah’s counsel represented that her requested restitution amount

of $25,000 would be “less than 1%” of her total losses and that 327 other

defendants were ordered to pay restitution to Sarah.

In her victim impact statement, Sarah explained that she worried that people

who had seen her images online would “come after” her and try to victimize her in

the same way her original abuser had. Sarah elaborated: “Every time someone else

13

Case: 17-12349 Date Filed: 05/08/2019 Page: 14 of 67

sees pictures or videos of me it feels like they are the ones who hurt me to begin

with. . . . It is like I am just here for other people’s pleasure and am not a person

myself with my own wants and needs.” Sarah stated that her fear prevented her

from leaving the house by herself and from engaging in other normal activities like

going to school, having a job, or socializing with more than a few people.

In his psychological evaluation, Dr. Green assessed “the impact and injuries

caused by the discovery and daily awareness that multiple individuals are viewing

images of sexual crimes being perpetrated against [Sarah] as a child.” As part of

his assessment, Dr. Green interviewed Sarah and also performed various

psychological tests. Based on these sources of information, Dr. Green opined that

“the discovery of multiple downloaders and distributors of her images effectively

exponentially multiplied in [Sarah’s] mind the number of sick and dangerous males

‘out there’ who might . . . do her harm.” Dr. Green explained that Sarah’s

knowledge of the dissemination of her child pornography images online caused her

daily psychological damage in the form of fear “that has reached a paranoid-like

level of intensity.” Dr. Green determined that Sarah required “extensive and

intensive therapy” for the trauma caused by both the original abuse and the

continuing traffic in her images. Dr. Green estimated the costs of Sarah’s future

psychiatric care were between $265,710 and $303,150.

14

Case: 17-12349 Date Filed: 05/08/2019 Page: 15 of 67

Sarah’s counsel reported that Sarah had incurred $31,433.77 in attorney’s

fees. The economic assessment for Sarah estimated a minimum of approximately

$1.9 million in lost wages over her lifetime.

The government did not concur in Sarah’s $25,000 restitution request and

instead requested an award of $7,895 based on its 1/n calculation method. The

government also provided a list of 155 prior restitution awards to Sarah, which

ranged from $0 at the low end to $51,500 at the high end.

Rothenberg opposed Sarah’s restitution request. Rothenberg cited three

other cases involving Sarah in which the government presented the same restitution

evidence and the courts found the government failed to establish proximate cause.

Rothenberg argued that the government provided no evidence to disaggregate the

harm proximately caused by his possession of six images of Sarah from that caused

by the other defendants in the list it had provided.

G. Vicky

Vicky submitted a restitution request of $10,000. In support of her request,

Vicky submitted several victim impact statements, several psychological reports

from Dr. Green, an economic report, and a statement of attorney’s fees. In her

victim impact statements, Vicky described the effects of the ongoing distribution

of the images of her sexual abuse as a child, including feelings of fear and

paranoia, nightmares, and panic attacks. In a 2014 psychological status report,

15

Case: 17-12349 Date Filed: 05/08/2019 Page: 16 of 67

Dr. Green opined that Vicky continued to require therapy as a result of the

continuing traffic in her images, as well as her discovery of attempts by some

viewers of her images to invade her privacy. Dr. Green explained that Vicky

continued to experience anxiety, dissociative responses, social withdrawal, anger,

feelings of powerlessness, and sleep disruption. Dr. Green estimated Vicky’s total

therapy costs to be between $108,975 to $113,600.

The economic report estimated Vicky’s net lost wages over the course of her

lifetime to be $828,150. Vicky’s counsel represented that Vicky had incurred

attorney’s fees and costs of $92,371.96.

The government did not concur in Vicky’s $10,000 request and instead

requested an award of $1,283 using its 1/n method. The government provided a

list of 659 other restitution awards to Vicky, which ranged from approximately $24

at the low end to $1 million at the high end.

Rothenberg opposed Vicky’s restitution request for the same reasons he

opposed Sarah’s request, noting that other courts had denied restitution requests

based on the same evidence and that the government failed to disaggregate.

Rothenberg also noted that he possessed only one image of Vicky and that the

average post-Paroline restitution award to Vicky was $3,632.

16

Case: 17-12349 Date Filed: 05/08/2019 Page: 17 of 67

H. Amy

Amy submitted a restitution request of $25,000. In support of her request,

Amy provided a victim impact statement, several psychological evaluations from

Dr. Joyanna Silberg, and an economic report. In her victim impact statement, Amy

stated that she “live[s] in constant fear that someone will see [her] pictures and

recognize [her].” Amy expressed feelings of powerlessness related to the traffic in

the images of her sexual abuse as a child because “the crime has never really

stopped and will never really stop.” Amy explained that she experienced fear,

shame, and humiliation at the thought of her friends and other people she

encounters discovering her images online.

In a December 2014 report, Dr. Silberg opined that although Amy had made

strides as a result of an intensive treatment plan initiated in 2012, ongoing issues

related to PTSD remained. Dr. Silberg explained that Amy continued to

experience flashbacks and nightmares, as well as “fear about the internet and

shame associated with the ongoing viewing of her picture.” Dr. Silberg concluded

that Amy “continues to suffer from the ongoing effects of her victimization from

child abuse and from the continued use of her image by child pornography traders,

viewers, and abusers,” and recommended continued psychological treatment and

monitoring. Amy’s economic report estimated her net lost wages as $2,855,173,

and her future counseling costs as $512,681.

17

Case: 17-12349 Date Filed: 05/08/2019 Page: 18 of 67

The government did not concur in Amy’s $25,000 request and instead

requested a restitution amount of $15,664 using its 1/n method. The government

provided a list of 215 other restitution awards to Amy, ranging from $50 at the low

end to $3.5 million at the high end.

Rothenberg opposed Amy’s restitution request. Rothenberg noted that he

possessed only one image of Amy and that the average post-Paroline restitution

award to her was $3,891. Rothenberg asserted that the government’s list of prior

restitution orders was inaccurate as to some of the awards and argued that the

government made no attempt to disaggregate his conduct from that of other

defendants.

I. Jenny

Jenny submitted a restitution request of $42,600. In support of her request,

Jenny submitted a victim impact statement and a cover letter from her counsel. In

her victim impact statement, Jenny stated that she worried about the images of her

sexual abuse that were “out there” and feared being recognized in public. Jenny

expressed a strong desire to forget the abuse she had suffered but explained that

“[w]ith the pictures still out there I can’t.”

In their cover letter, Jenny’s counsel represented that this was Jenny’s

seventh restitution request. Counsel stated that they were still in the process of

obtaining expert reports for Jenny, but asserted that “such formal reports” were not

18

Case: 17-12349 Date Filed: 05/08/2019 Page: 19 of 67

necessary for the district court to determine restitution. Counsel discussed a

proposed bill which would set a $25,000 minimum restitution award for child

pornography possession offenses, and represented that Jenny had costs of $5,100

for legal and attorney’s fees and $12,500 for the preparation of expert reports.

Because these three items totaled $42,600, Jenny’s counsel contended that $42,600

amount was the appropriate restitution amount for Jenny.

The government did not concur in Jenny’s $42,600 restitution request and

instead requested a restitution award of $2,000. The government emphasized that

Rothenberg possessed 34 images and one video of Jenny but noted the lack of

documentation to support Jenny’s restitution request. The government pointed out

that one other defendant was ordered to pay restitution to Jenny in the amount of

$7,500.

Rothenberg likewise noted the lack of evidence supporting Jenny’s $42,600

restitution request. Nevertheless, based on the number of images of Jenny he

possessed, Rothenberg agreed that the government’s requested amount of $2,000

was reasonable.

J. Casseaopeia

Casseaopeia submitted a restitution request of $25,000. In support of her

request, Casseaopeia provided a victim impact statement, a psychological report

from Dr. Joyce Vesper, and an economic assessment. In her victim impact

19

Case: 17-12349 Date Filed: 05/08/2019 Page: 20 of 67

statement, Casseaopeia described her ongoing victimization as a result of the

online trade in her child pornography images. Casseaopeia stated that she worried

the people viewing her images would seek her out and harm her. She explained

that she suffers from anxiety, which makes it hard for her to work or go out in

public, and experiences panic attacks when she thinks someone recognizes her

from the internet. Casseaopeia further explained that the continuing traffic in her

images made recovery from her PTSD and depression more difficult and

“prevent[ed] the wound from healing.”

In her September 2015 psychological report, Dr. Vesper described her

clinical interview with Casseaopeia and the psychological tests she administered.

From these assessments, Dr. Vesper concluded that Casseaopeia was “tortured by

constant memories of childhood sexual abuse” and experienced “constant head

chatter, graphic flashbacks, [and] panic attacks that are so overwhelming they feel

like heart attacks.” Dr. Vesper described Casseaopeia as living “in constant fear

that the people viewing the pornographic films and pictures of her” online would

capture her and subject her to the same abuse all over again. Dr. Vesper opined

that “[w]ithout the appropriate psychotherapy to address [her] dissociation,

depersonalization, derealization, amnesia, anxiety and depression,” Casseaopeia

would continue to experience flashbacks, nightmares, and depression. Dr. Vesper

recommended intensive psychotherapy for Casseaopeia. In a supplemental report,

20

Case: 17-12349 Date Filed: 05/08/2019 Page: 21 of 67

Dr. Vesper specifically addressed the effects on Casseaopeia of the ongoing traffic

in her images. Dr. Vesper explained that Casseaopeia experienced persistent

anxiety that people she knows will see on the internet images of her sexual abuse

as a child and that this anxiety affects her recovery process.

The economic assessment estimated Casseaopeia had economic damages

totaling $1,078,159, including $748,438 in lost earning capacity and $329,721 in

future medical expenses.

The government requested a slightly lower restitution award of $21,563 for

Casseaopeia, which was calculated using the 1/n method. The government noted

that 49 other defendants were ordered to pay restitution to Casseaopeia and

submitted a list of those prior awards. Those prior awards ranged from $0 at the

low end to $50,000 at the high end.

Rothenberg opposed Casseaopeia’s restitution request. Rothenberg noted

that he possessed only two images of Casseaopeia and that the average restitution

award to her was $3,974. Rothenberg argued that, like many of the other requests,

the government did not differentiate between the harm he caused and that caused

by other perpetrators. Rothenberg contended that Dr. Vesper’s report primarily

dealt with effects of the original abuse rather than the traffic in Casseaopeia’s

images.

21

Case: 17-12349 Date Filed: 05/08/2019 Page: 22 of 67

K. Restitution Hearing

On November 18, 2016, the district court held a restitution hearing. At the

restitution hearing, the government submitted the evidence on which its restitution

requests were based, all of which was admitted into evidence.2 That evidence

consisted of 891 pages of exhibits submitted by the victims and charts prepared by

the government listing each victim’s prior restitution awards in other federal cases.

The exhibits included the declarations, psychological evaluations, letters, and other

evidence referenced in the government’s restitution requests. Rothenberg noted, at

the outset of the hearing, that he agreed with the government’s requested award of

$2,000 to Jenny and therefore did not offer any argument as to that award. The

remaining requests were disputed, and the parties essentially reiterated the

arguments raised in their prior memoranda as to those victims.

III. COURT’S RESTITUTION ORDER

Six months later, on May 9, 2017, the district court issued its restitution

order. After outlining in detail Paroline’s framework (and expressing some

frustration with its inexactitude), the district court analyzed each victim’s

restitution request. As a preliminary matter, the district court stated that, with

2

Though the district court admitted the restitution exhibits into evidence at the restitution

hearing, it did not scan and file those exhibits on the district court docket. On appeal,

Rothenberg filed an unopposed motion to supplement the record to include those exhibits, which

this Court granted.

22

Case: 17-12349 Date Filed: 05/08/2019 Page: 23 of 67

respect to each victim, it had assigned restitution in a manner that comported with

Rothenberg’s relative role and only for damages he proximately caused. The

district court explicitly explained that it had not “attempted to hold [Rothenberg]

responsible for all losses sustained by any victim.” Furthermore, the district court

expressly noted there was no evidence that Rothenberg was connected to the initial

abuse of any of the victims or that he had reproduced or distributed their images.

Instead, Rothenberg was a possessor only. And the district court specifically stated

that it had “taken these factors into consideration in assigning [Rothenberg] a

relative role as the proximate cause of these victims’ losses.”

Turning to the specific awards, the district court determined that Sierra’s

$10,000 request was reasonable. The district court found that: (1) Rothenberg

possessed one image of Sierra; (2) a small number of criminal defendants had paid

restitution to Sierra; (3) Sierra’s current mental health condition was severe; and

(4) Sierra’s projected costs of care exceeded $600,000. The district court found “in

consideration of her large amount of total costs, the small number of contributing

offenders, and a request for a proportion of these costs proximately caused and to

be paid by [Rothenberg], who neither created nor distributed her image, that

$10,000 is a reasonable request under the Paroline analysis and factors.”

Next, the district court determined that Jane’s $3,000 request was

reasonable. The district court found that: (1) Rothenberg possessed four images of

23

Case: 17-12349 Date Filed: 05/08/2019 Page: 24 of 67

Jane; (2) a small number of criminal defendants had paid restitution to Jane;

(3) Jane’s victim impact statement specifically addressed how the existence of her

images on the internet affected her and isolated the harm caused by possessors and

distributors from that caused by the original abuse; and (4) Jane’s estimated

medical and therapy costs were $101,027. The district court found “in

consideration of her medical costs, the small number of contributing offenders, and

a request for a proportion of these costs to be paid by [Rothenberg], who neither

created nor distributed her images, that $3,000 is a reasonable request under the

Paroline analysis and factors.”

The district court then determined that Pia’s $5,000 request was reasonable.

The district court found that: (1) Rothenberg possessed 14 images of Pia; (2) there

was no evidence regarding the number of other criminal defendants ordered to pay

restitution to Pia, though Pia’s counsel indicated that one other defendant was so

ordered; and (3) Pia’s estimated therapy costs over the next 20 years totaled

$81,900. The district court found “in consideration of her total costs, the fact that

she has only received restitution from one other defendant, the large number of

images possessed by [Rothenberg] of [Pia], and a request for a proportion of these

costs to be paid by [Rothenberg], who neither created nor distributed her images,

that $5,000 is a reasonable request under the Paroline analysis and factors.”

24

Case: 17-12349 Date Filed: 05/08/2019 Page: 25 of 67

The district court also determined that Mya’s $5,000 request was reasonable,

despite the government’s requested amount of only $500. The district court found

that: (1) Rothenberg possessed one image of Mya; (2) there was no indication as to

whether any other criminal defendants were ordered to pay restitution to Mya; and

(3) Mya’s counsel indicated a reasonable treatment estimate for Mya would be

more than $100,000. The district court found “in consideration of her total costs,

the fact that she has not received any restitution at this time, and a request for a

proportion of these costs to be paid by [Rothenberg], who neither created nor

distributed her images, that $5,000 is a reasonable request under the Paroline

analysis and factors.”

As to Sarah, the district court determined that an award of $20,000—$5,000

less than Sarah’s requested amount—was reasonable. The district court explained

that: (1) Rothenberg possessed six images of Sarah; (2) over 150 criminal

defendants were ordered to pay restitution to Sarah; (3) Sarah’s victim impact

statement explicitly addressed how the existence of her images on the internet

affected her, thereby isolating the harm caused by possession of her images from

that caused by the original abuse; and (4) Sarah’s estimated cost of psychiatric care

was nearly $300,000. The district court found, “in consideration of the amount of

costs, the fact that many other offenders have been required to pay restitution to

[Sarah]—which in the case of Sarah, the Court finds contributes to a finding that

25

Case: 17-12349 Date Filed: 05/08/2019 Page: 26 of 67

the request is reasonable and acknowledged by many other courts—the large

number of images possessed of [Sarah], and a request for a proportion of these

costs proximately caused and to be paid by [Rothenberg], who neither created nor

distributed her image[s], that $20,000 is an appropriate amount under the Paroline

analysis and factors.”

In a similar vein, the district court determined that for Vicky, $9,000—

$1,000 less than Vicky’s requested $10,000 amount—was a reasonable award.

The district court found that: (1) Rothenberg possessed one image of Vicky;

(2) more than 600, and possibly more than 800, other criminal defendants were

ordered to pay restitution to Vicky; (3) Vicky’s victim impact statement

specifically addressed how the online traffic in her images affected her and

explained the distinct harm caused by possessors and distributors of her images;

and (4) Vicky’s predicted therapy costs exceeded $100,000. The district court

found “in consideration of the amount of costs, the fact that many other offenders

have been required to pay restitution to [Vicky]—which in the case of Vicky, the

Court finds contributes to a finding that the request is reasonable and

acknowledged by many other courts—and a request for a proportion of these costs

proximately caused and to be paid by [Rothenberg], who neither created nor

distributed her image, that $9,000 is an appropriate amount under the Paroline

analysis and factors.”

26

Case: 17-12349 Date Filed: 05/08/2019 Page: 27 of 67

The district court likewise awarded a reduced amount to Amy. The district

court noted that Amy requested $25,000 and that the government requested

$15,664, but the district court ultimately determined that $23,000 was reasonable.

The district court explained that: (1) Rothenberg possessed one image of Amy;

(2) more than 200 criminal defendants had paid restitution to Amy; (3) Amy’s

victim impact statement “provide[d] strong support for the different and separate

harm that possessors proximately cause to victims such as [herself]”; and

(4) Amy’s counseling and therapy costs could exceed $500,000. The district court

found “in consideration of the large amount of costs, the fact that other offenders

have been required to pay restitution to [Amy]—which, again, in the case of Amy,

the Court finds contributes to a finding that the request is reasonable and

acknowledged by other courts—and a request for a proportion of these costs

proximately caused and to be paid by [Rothenberg], who neither created nor

distributed her image, that $23,000 is an appropriate amount under the Paroline

analysis and factors.”

Regarding Jenny, the district court acknowledged that both the government

and Rothenberg agreed that $2,000 was an appropriate amount, but that Jenny

requested $42,600. The district court determined that Jenny’s requested amount

was reasonable. The district court emphasized that (1) Rothenberg possessed 34

images and one video of Jenny, and (2) only one other defendant had paid

27

Case: 17-12349 Date Filed: 05/08/2019 Page: 28 of 67

restitution to Jenny. The district court conceded there was “less documentation of

Jenny’s psychological and medical expenses as compared with some other victims

in this case,” but found that the $2,000 amount requested by the parties was

insufficient. Considering “the extremely large number of images [Rothenberg]

possessed of [Jenny], her costs, the fact that only one other defendant has so far

contributed to these costs, and a request for a proportion of these costs to be paid

by [Rothenberg], who neither created nor distributed her images, the Court finds

that $42,600 is a reasonable request under the Paroline analysis and factors.”

Lastly, as to Casseaopeia, the district court determined that her requested

award of $25,000 was reasonable, even though the government requested only

$21,563. The district court found that: (1) Rothenberg possessed two images of

Casseaopeia; (2) more than 50 criminal defendants were ordered to pay her

restitution; and (3) her projected costs of care exceeded $300,000. Considering

“her costs, the number of contributing offenders, and a request for a proportion of

these costs proximately caused and to be paid by [Rothenberg], who neither

created nor distributed her image,” the district court found that “$25,000 is a

reasonable request under the Paroline analysis and factors.”

In total, the district court ordered Rothenberg to pay $142,600 in restitution,

to be apportioned to the nine victims in the amounts set out above. On appeal,

Rothenberg argues that the district court erred as to all nine restitution awards. We

28

Case: 17-12349 Date Filed: 05/08/2019 Page: 29 of 67

begin with the restitution statute and then review the Supreme Court’s Paroline

decision, which both parties agree governs this appeal.

IV. 18 U.S.C. § 2259

Congress has mandated that district courts award restitution to victims of

certain federal crimes, including child pornography possession. See 18 U.S.C.

§ 2259(a) (2012).3 The possessor of child pornography must pay restitution to the

victim whose childhood abuse appears in the pornographic materials he possessed.

See id. § 2259(b)(1), (c)(4). The statute requires that “[t]he order of restitution . . .

shall direct the defendant to pay the victim . . . the full amount of the victim’s

losses as determined by the court.” Id. § 2259(b)(1). The statute defines the term

“full amount of the victim’s losses” to include any costs incurred by the victim for:

(A) medical services relating to physical, psychiatric, or psychological

care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care

expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the

offense.

3

Since Rothenberg’s guilty plea and restitution hearing, Congress amended 18 U.S.C.

§ 2259, effective December 7, 2018. See Amy, Vicky, and Andy Child Pornography Victim

Assistance Act of 2018, Pub. L. No. 115-299, 132 Stat. 4383 (2018). All citations in this opinion

are to the previous version of 18 U.S.C. § 2259, which was in effect both when Paroline was

decided and at the time of the district court’s restitution order in this case.

29

Case: 17-12349 Date Filed: 05/08/2019 Page: 30 of 67

Id. § 2259(b)(3) (emphasis added). The statute defines a victim as “the individual

harmed as a result of the commission of a crime under this chapter.” Id.

§ 2255(c)(4) (emphasis added). A court may not decline to issue restitution

because of the economic circumstances of the defendant or because the victim has

received compensation from another source. See id. § 2259(b)(4)(B).

“The burden of demonstrating the amount of the loss sustained by a victim

as a result of the offense shall be on the attorney for the Government.” Id.

§§ 3664(e), 2259(b)(2) (emphasis added). In Paroline, the Supreme Court

addressed the meaning of “as a result of” and “proximate result” in § 2259 and

precisely what type of causal connection or proximate cause must exist between

the victim’s losses and the defendant’s offense. We review Paroline next.

V. SUPREME COURT’S PAROLINE DECISION

Like this case, Paroline involved a possessor of child pornography images in

wide circulation on the internet. In Paroline, the defendant was a possessor and not

a distributor or the initial abuser. See 572 U.S. at 439, 134 S. Ct. at 1716. The

Supreme Court grappled with the question of what causal relationship must be

established between a defendant possessor’s conduct and a victim’s losses for

purposes of determining the right to, and the amount of, restitution under § 2259.

Id. As a preliminary matter, the Supreme Court interpreted § 2259’s statutory

language to impose a general proximate-cause limitation. Id. at 448, 134 S. Ct. at

30

Case: 17-12349 Date Filed: 05/08/2019 Page: 31 of 67

1721. The Supreme Court determined that “[r]estitution is therefore proper under

§ 2259 only to the extent the defendant’s offense proximately caused a victim’s

losses.” Id. at 448, 134 S. Ct. at 1722.

The difficulty, the Supreme Court explained, comes in applying that

causation requirement in a particular child pornography case. Id. at 449, 134 S. Ct.

at 1722. This is so because of the “somewhat atypical causal process underlying

the losses [a child pornography] victim claims.” Id. The Supreme Court reasoned

that it may be “simple enough” for a victim to prove the aggregate losses that stem

from the ongoing traffic in her images as a whole. Id. Importantly, the Supreme

Court observed that it is more difficult to determine “the ‘full amount’ of those

general losses, if any, that are the proximate result of the offense conduct of a

particular defendant who is one of thousands who have possessed and will in the

future possess the victim’s images but who has no other connection to the victim.”

Id.

Therefore, in child pornography possession offenses, the Paroline Court

recognized that it would be virtually impossible to show that the defendant

possessor was a but-for cause of any particular portion of the victim’s losses

“where the defendant is an anonymous possessor of images in wide circulation on

the Internet.” Id. at 450-51, 134 S. Ct. at 1722-23. Nevertheless, the Supreme

Court observed that “[w]hile it is not possible to identify a discrete, readily

31

Case: 17-12349 Date Filed: 05/08/2019 Page: 32 of 67

definable incremental loss [a defendant possessor] caused, it is indisputable that

[the defendant possessor] was a part of the overall phenomenon that caused [the

victim’s] general losses.” Id. at 456-57, 134 S. Ct. at 1726. And it would

undermine the purposes of § 2259 to deny restitution in cases involving possessors

of child pornography. Id. at 456-58, 134 S. Ct. at 1726-27.

The Supreme Court also recognized that the original abuse crime is

compounded by the distribution and possession of images of the victim’s original

abuser’s “horrific acts, which meant the wrongs inflicted on her were in effect

repeated; for she knew her humiliation and hurt were and would be renewed into

the future as an ever-increasing number of wrongdoers witnessed the crimes

committed against her.” Id. at 441, 134 S. Ct. at 1717. It does not matter that the

victim does not know the name of the possessor because the losses do not flow

from any specific knowledge of him; rather, the cause of the victim’s losses “is the

trade in her images.” Id. at 456, 134 S. Ct at 1726. The Supreme Court also

observed that “the victim suffers continuing and grievous harm as a result of her

knowledge that a large, indeterminate number of individuals have viewed and will

in the future view images of the sexual abuse she endured.” Id. at 457, 134 S. Ct.

at 1726. “In a sense, every viewing of child pornography is a repetition of the

victim’s abuse.” Id. at 457, 134 S. Ct. at 1727. “The cause of the victim’s general

losses is the trade in her images.” Id. at 456, 134 S. Ct. at 1726.

32

Case: 17-12349 Date Filed: 05/08/2019 Page: 33 of 67

After rejecting a but-for test for proximate cause, the Paroline Court adopted

a causation-in-fact standard for cases where: (1) “a defendant possessed a victim’s

images”; (2) “a victim has outstanding losses caused by the continuing traffic in

those images”; and yet (3) “it is impossible to trace a particular amount of those

losses to the individual defendant by recourse to a more traditional causal inquiry.”

Id. at 458, 134 S. Ct. at 1727. In that situation, the Supreme Court concluded that a

defendant possessor of child pornography should be ordered to pay restitution “in

an amount that comports with the defendant’s relative role in the causal process

that underlies the victim’s general losses.” Id. The Supreme Court explained that

the award “would not be severe” in a case where the possessor is only one of many

thousands of offenders, but also would not be “a token or nominal amount.” Id. at

458-59, 134 S. Ct. at 1727. Rather, the required restitution would be “reasonable

and circumscribed” and “suited to the relative size of [the defendant’s] causal

role.” Id. at 459, 134 S. Ct. at 1727.

Further, the Supreme Court instructed, there is no “practical way to isolate

some subset of the victim’s general losses that [the possessor] Paroline’s conduct

alone would have been sufficient to cause.” Id. at 451, 134 S. Ct. at 1723. In

Paroline, the defendant possessor was one of thousands who possessed the victim’s

images. Id. at 450, 134 S. Ct. at 1723. The Supreme Court stressed that even though

the victim does not know the possessor, the victim’s “knowledge that her images

33

Case: 17-12349 Date Filed: 05/08/2019 Page: 34 of 67

were circulated far and wide renewed the victim’s trauma and made it difficult for

her to recover from her abuse.” Id. at 440, 134 S. Ct. at 1717. “While it is not

possible to identify a discrete, readily definable incremental loss he [the possessor]

caused, it is indisputable that he was a part of the overall phenomenon that caused

her general losses.” Id. at 456-57, 134 S. Ct. at 1726. In other words, the defendant

possessor of the images caused in fact part of the general losses, even if “it is

impossible to trace a particular amount of those losses to the individual defendant.”

Id. at 458, 134 S. Ct. at 1727.

The Paroline Court then turned to the question of how district courts are to

determine the proper amount of restitution in these “possessor” cases. Id. As a

general matter, the Supreme Court stated that a district court “must assess as best it

can from available evidence the significance of the individual defendant’s conduct

in light of the broader causal process that produced the victim’s losses.” Id. at 459,

134 S. Ct. at 1727-28. The Supreme Court emphasized that this “cannot be a precise

mathematical inquiry,” but rather involves the exercise of “wide discretion” and

“sound judgment” of the sort district courts typically exercise in the context of

criminal sentencing and restitution more broadly. Id. at 459-62, 134 S. Ct. at 1728-

29. The Supreme Court then expressly identified “a variety of factors district courts

might consider” in determining a proper restitution amount for possession. Id. at

459-60, 134 S. Ct. at 1728 (emphasis added).

34

Case: 17-12349 Date Filed: 05/08/2019 Page: 35 of 67

As a starting point, the Supreme Court suggested that district courts

“determine the amount of the victim’s losses caused by the continuing traffic in the

victim’s images.” Id. at 460, 134 S. Ct. at 1728 (emphasis added). Then, to

determine the defendant possessor’s relative role in causing those general losses, the

district court could consider factors such as: (1) “the number of past criminal

defendants found to have contributed to the victim’s general losses”; (2) “reasonable

predictions of the number of future offenders likely to be caught and convicted for

crimes contributing to the victim’s general losses”; (3) “any available and

reasonably reliable estimate of the broader number of offenders involved (most of

whom will, of course, never be caught or convicted)”; (4) “whether the defendant

reproduced or distributed images of the victim”; (5) “whether the defendant had any

connection to the initial production of the images”; (6) “how many images of the

victim the defendant possessed”; and (7) “other facts relevant to the defendant’s

relative causal role.” Id.

The Supreme Court reiterated that these factors should not be used as a “rigid

formula,” but should instead serve as “rough guideposts” in determining a restitution

amount for the possessor criminal defendant. Id. The Supreme Court noted that

“[t]his approach is not without its difficulties,” as it “involves discretion and

estimation,” but “courts can only do their best to apply the statute as written in a

workable manner.” Id. at 462, 134 S. Ct. at 1729. The Supreme Court emphasized

35

Case: 17-12349 Date Filed: 05/08/2019 Page: 36 of 67

that district courts regularly exercise wide discretion, and there was “no reason to

believe they cannot apply th[is] causal standard . . . in a reasonable manner.” Id.4

VI. STANDARD OF REVIEW

We review de novo the legality of a restitution order, but review for clear

error the factual findings underlying that order. United States v. McDaniel, 631

F.3d 1204, 1207 (11th Cir. 2011); see also United States v. Osman, 853 F.3d 1184,

1188 (11th Cir. 2017). We review the amount of the district court’s restitution

award only for an abuse of discretion. See United States v. Robertson, 493 F.3d

1322, 1330 (11th Cir. 2007); see also Paroline, 572 U.S. at 459, 134 S. Ct at 1727-

28 (emphasizing that “determining the proper amount of restitution” involves “the

use of discretion and sound judgment” on the part of the district court).

A district court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures, or makes clearly erroneous findings of fact. United

States v. Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009). The abuse of discretion

standard recognizes that the district court has a range of choices, and this Court

4

Three of the four dissenting justices were not so sure and complained that “[w]hen it

comes to [the defendant’s] crime—possession of two of [the victim’s] images—it is not possible

to do anything more than pick an arbitrary number” as “the amount of the loss sustained by a

victim as a result of” the defendant’s crime. Paroline, 572 U.S. at 463, 134 S. Ct. at 1730

(Roberts, C.J., dissenting). The fourth dissenter, Justice Sotomayor, would have embraced the

victim’s joint and several liability theory, holding each possessor liable for restitution in the full

amount of the victim’s losses. Id. at 473, 134 S. Ct. at 1735 (Sotomayor, J., dissenting).

36

Case: 17-12349 Date Filed: 05/08/2019 Page: 37 of 67

will not reverse the district court’s choice as long as its decision does not amount

to a clear error of judgment. Id.

Osman, our only published post-Paroline restitution decision to date, did not

address how the abuse of discretion standard applies in assessing whether the

district court adequately considered the Paroline factors and imposed a reasonable

restitution award. See generally Osman, 853 F.3d at 1189-92. But Paroline itself

provides some important clues. In Paroline, the Supreme Court emphasized that

determining the proper restitution amount “involves the use of discretion and

sound judgment” in a manner akin to that exercised “in the wider context of

criminal sentencing,” and that the ultimate award must be “reasonable and

circumscribed.” Paroline, 572 U.S. at 459, 134 S. Ct. at 1727-28; see also id. at

462, 134 S. Ct. at 1729 (explaining that “[d]istrict courts routinely exercise wide

discretion . . . in sentencing as a general matter” and should likewise apply

Paroline’s causal standard “in a reasonable manner”). And to guide the district

court’s exercise of its discretion, the Paroline Court identified a number of factors

district courts may consider in fashioning an appropriate restitution award. Id. at

459-60, 134 S. Ct. at 1728.

Paroline thus established a framework not unlike the one we apply in

assessing the reasonableness of a defendant’s sentence, in which we look to see

whether the district court appropriately exercised its sentencing discretion in light

37

Case: 17-12349 Date Filed: 05/08/2019 Page: 38 of 67

of the 18 U.S.C. § 3553(a) factors. See, e.g., Gall v. United States, 552 U.S. 38,

51, 128 S. Ct. 586, 597 (2007); United States v. Irey, 612 F.3d 1160, 1188-91 (11th

Cir. 2010) (en banc). In that § 3553(a) context, we evaluate whether the district

court failed to consider relevant factors, improperly weighed the relevant factors,

or considered improper factors, and ultimately assess whether, under the totality of

the circumstances, the sentence is reasonable. See Irey, 612 F.3d at 1189. And we

will vacate a sentence imposed by the district court only if we are “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” Id. at

1190 (internal quotation marks omitted).

Additionally, in sentencing cases, we do not require district courts to make

detailed findings or give a thorough explanation for the sentence it chose. See id.

at 1194-95. Specifically, “[t]he district court need not state on the record that it has

explicitly considered each factor and need not discuss each factor,” United States

v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007), “so long as the record reflects the

court’s consideration of many of those factors,” United States v. Carpenter, 803

F.3d 1224, 1232 (11th Cir. 2015). “Rather, an acknowledgment by the district

court that it has considered the defendant’s arguments and the § 3553(a) factors

will suffice.” Dorman, 488 F.3d at 938.

38

Case: 17-12349 Date Filed: 05/08/2019 Page: 39 of 67

A similar approach makes sense here. As in the sentencing context, in

evaluating child pornography restitution awards under Paroline, appellate courts

must determine whether the district court appropriately exercised its broad

discretion in light of the facts of the particular case and awarded restitution in an

amount that comports with the particular defendant’s conduct. See Paroline, 572

U.S. at 458-59, 462, 134 S. Ct. at 1727-29; Irey, 612 F.3d at 1190. And as in the

sentencing context, a number of relevant factors guide the district court’s exercise

of its discretion. See Paroline, 572 U.S. at 459-60, 134 S. Ct. at 1728; Gall, 552

U.S. at 51, 128 S. Ct. at 597. Furthermore, the Supreme Court in Paroline

indicated that the exercise of discretion at issue in child pornography restitution

cases is similar to that exercised in criminal sentencing more generally. See

Paroline, 572 U.S. at 459, 134 S. Ct. at 1727-28.

Accordingly, in reviewing child pornography restitution awards under

Paroline, this Court should consider whether, in light of the Paroline factors, the

district court arrived at a restitution amount that lies within the general range of

reasonable restitution awards dictated by the facts of the case. See Irey, 612 F.3d

at 1190. In doing so, this Court should give due deference to the district court’s

determination that the Paroline factors, on the whole, justify the restitution amount

awarded and should not vacate an award unless left with the definite and firm

conviction that the district court committed a clear error of judgment in setting the

39

Case: 17-12349 Date Filed: 05/08/2019 Page: 40 of 67

award amount. See id.; Gall, 552 U.S. at 51, 128 S. Ct. at 597. Moreover, so long

as the district court acknowledges that it has considered the Paroline factors and

the defendant’s arguments regarding restitution, we will not vacate a restitution

award solely on the basis that the district court did not address each factor

explicitly. See Carpenter, 803 F.3d at 1232; Dorman, 488 F.3d at 938.

With these principles in mind, we turn now to Rothenberg’s disaggregation

argument, which is a legal challenge to the district court’s restitution order that we

review de novo. Osman, 853 F.3d at 1188.

VII. DISAGGREGATION

On appeal, Rothenberg first argues that, as to all nine victims, the district

court failed to “disaggregate” their losses. Rothenberg contends that Paroline

requires district courts to engage in disaggregation at two levels: first, by

disaggregating the portion of the victim’s losses caused by the original abuse; and

second, by disaggregating the losses caused by the defendant from those caused by

other possessors or distributors.

Rothenberg asserts that the district court here failed at the first level by

relying on total loss estimates for each victim that did not separate out and deduct

the losses caused by the original abuser. Because the expert reports did not

disaggregate the losses caused by the original abuser from those caused by the

distributors or possessors, Rothenberg contends that the district court was required

40

Case: 17-12349 Date Filed: 05/08/2019 Page: 41 of 67

to conduct that separating out itself. Rothenberg maintains that the district court

also failed to disaggregate at the second level by failing to use the amounts of the

prior restitution orders against other defendant possessors or distributors for the

same victims as a guidepost for determining his relative level of culpability.

The government responds that nothing in Paroline requires district courts to

engage in the sort of formal disaggregation Rothenberg envisions. Rather, the

government contends that Paroline simply requires that the district court consider

the Paroline factors and exercise its discretion in determining the amount of a

victim’s losses caused by the instant defendant. The government submits that the

district court here complied with those requirements, explicitly stating it was not

holding Rothenberg accountable for the original abuse or distribution of the

victims’ images and setting restitution amounts that “best approximat[ed]

Rothenberg’s relative role.”

This Court has not yet addressed whether, in awarding restitution post-

Paroline, district courts first must formally disaggregate a victim’s losses between

the original abuser, distributors, and subsequent possessors. Several of our sister

circuits, however, have grappled with that question, and the results are mixed.

A. Eighth and Fifth Circuits’ Decisions

We start with the Eighth Circuit’s decision in United States v. Bordman, 895

F.3d 1048, 1058-59 (8th Cir. 2018), cert. denied, 2019 WL 1886056 (U.S. Apr. 29,

41

Case: 17-12349 Date Filed: 05/08/2019 Page: 42 of 67

2019), a restitution case involving a defendant convicted of only possessing child

pornography. In Bordman, the Eighth Circuit expressly held that a district court is

not required to formally disaggregate categories of loss before ordering restitution,

such as the loss caused by the initial abuser. Id. at 1058-59.

In doing so, the Eighth Circuit affirmed the district court’s $3,000 award of

restitution to a victim where the district court considered multiple factors,

including: (1) the 1/n method, which took into account the number of defendants

(32) who had already paid the victim restitution plus 1 (the defendant Bordman),

for a total of 33; (2) the child pornography being videos with two copies of the

same video in different folders; and (3) the “very aggravating factor” of the nature

of the video. Id. at 1052-53, 1059. The victim’s losses included $91,900 in

therapy, related expenses, and for a vocational assessment and counseling, legal

costs of $10,187.13, and attorney’s fees. Id. at 1052. At the sentencing hearing,

the government took the sum of $95,295.71 ($91,900 plus one third of the

attorney’s fees) and divided it by 33 defendants, resulting in the sum of $2,887.75.

Id. at 1052-53. One-third of the attorney’s fees was used because this same

attorney had represented three victims. Id. at 1052. The district court imposed a

$3,000 restitution amount for the victim. Id. at 1054.

On appeal, the defendant-possessor Bordman specifically claimed that “the

district court abused its discretion by failing to disaggregate the harm caused by the

42

Case: 17-12349 Date Filed: 05/08/2019 Page: 43 of 67

initial abuse from the harm that his later possession caused.” Id. at 1058. In

rejecting that claim, the Eighth Circuit reasoned that “one of the Paroline factors

already accounts for disaggregation”—namely, “whether the defendant had any

connection to the initial production of the images.” Id. at 1059 (quoting Paroline,

572 U.S. at 460, 134 S. Ct. at 1728). The Eighth Circuit “decline[d] to transform”

this disaggregation factor “from a ‘rough guidepost’ into a ‘rigid formula.’” Id.

(quoting Paroline, 572 U.S. at 460, 134 S. Ct. at 1728).

The Fifth Circuit also has rejected, under plain error review, a defendant’s

challenge to restitution awards that relied on psychological reports that “did not

separate the losses caused by [the defendant possessor] from the losses caused by

other abusers.” United States v. Halverson, 897 F.3d 645, 654-55 n.4 (5th Cir.

2018). The Fifth Circuit reasoned that nothing in Paroline clearly required victims

to present a new psychological report in each case that “disaggregates a

defendant’s conduct from all other possible sources of the victim’s losses.” Id.

The Fifth Circuit approved the district court’s use of a restitution method which

awarded each victim (1) a base $5,000 amount of restitution, plus (2) an additional

sum of $1,409 for each image of the victim that the defendant possessed because

the district court discussed factors that bore on the relative significance of the

defendant’s conduct and the district court was not required to make findings as to

all of the Paroline factors. Id. at 653-54.

43

Case: 17-12349 Date Filed: 05/08/2019 Page: 44 of 67

B. Fourth and Seventh Circuits’ Decisions

While not directly ruling on the initial-abuser-disaggregation issue, two

other decisions of our sister circuits bear mentioning. That is because both

decisions, post-Paroline, (1) emphasized the district court’s wide discretion

inherent in determining the amount of restitution, (2) affirmed restitution awards

under various methodologies against possessors of child pornography, and

(3) refused to impose more structure beyond the Supreme Court’s multi-factored

test. See United States v. Dillard, 891 F.3d 151, 160-62 (4th Cir. 2018) (noting

that Paroline did not set any “evidentiary minimums” for establishing restitution,

that “[p]ost-Paroline, our sister courts of appeals have approved of various

methods of determining a restitution award,” and that “[d]istrict courts have great

discretion in selecting an appropriate methodology”); United States v. Sainz, 827

F.3d 602, 605-07 (7th Cir. 2016) (discussing the district court’s ability to employ

varying methodologies, including the 1/n method, to calculate a restitution amount

under Paroline and stating that “the bottom line here is that the amount of the

award is substantively reasonable”). We discuss Dillard and Sainz in detail, as

they demonstrate not only how to apply the Paroline factors, but also a common-

sense, practical approach to restitution for victims whose losses are caused by the

continuing traffic in their child pornography images.

44

Case: 17-12349 Date Filed: 05/08/2019 Page: 45 of 67

In the Fourth Circuit’s Dillard decision, while the defendant was the initial

abuser of one child victim, he also possessed images of other child victims with

whom he had no contact. Dillard, 891 F.3d at 154. The district court denied all

restitution to the non-contact victims because the record contained no evidence that

the victims were aware Dillard had their images and no evidence connecting the

non-contact victims’ harm to Dillard. Id. at 156. In reversing, the Fourth Circuit

explained Paroline disavowed any such requirements. Id. at 159-60. The Fourth

Circuit held the “[g]overnment satisfied its burden of causation by the uncontested

evidence that Dillard’s offense conduct included the seven non-contact victims’

images” and “that these victims have outstanding losses caused by the continuing

traffic in those images.” Id. at 160 (internal quotation marks omitted).

As to how to calculate those non-contact victims’ losses caused by Dillard,

the Fourth Circuit said the district court “‘might, as a starting point, determine the

amount of the victim’s losses caused by the continuing traffic in the victim’s

images’” and “‘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.’” Id. at 160 (quoting Paroline, 572 U.S. at 460, 134 S. Ct. at 1728). The

Fourth Circuit remanded for the district court to consider the Paroline factors and

award at least some “non-nominal amount of restitution” for the losses of the non-

contact victims whose images Dillard possessed. Id. at 161-62. Where it was

45

Case: 17-12349 Date Filed: 05/08/2019 Page: 46 of 67

“uncontested that the individuals seeking restitution were Dillard’s victims and had

outstanding losses associated with the continued trade in their images, they were

entitled by statute to some non-nominal amount of restitution.” Id. at 161 (citing

Paroline, 572 U.S. at 458-60, 134 S. Ct. at 1727-28).

Similarly, the Seventh Circuit’s decision in Sainz stresses the district court’s

“considerable discretion in deciding the extent of a defendant’s restitution” who

possessed child pornography. Sainz, 827 F.3d at 605. The defendant Sainz

possessed six images of the victim that had circulated widely on the internet, but

had no role in creating or distributing them. Id. at 604. The victim had “incurred

financial losses such as future lost earnings, attorney fees, and medical and

psychiatric expenses” that totaled $1.1 million. Id. at 604, 605 n.1. On appeal, the

defendant Sainz did not challenge that he must pay some amount of restitution but

argued that the $8,387.43 amount he was ordered to pay was “disproportionate to

his relative role in causing” the victim’s losses. Id. at 604-05. Sainz also claimed

“he was not a legal cause of [the victim’s] harm because hundreds or thousands of

others also possessed the images, so she would have been harmed by others even if

he had never possessed the images of her.” Id. at 604.

Using the 1/n method advocated for by the government, the district court

divided the total loss of $1.1 million by 136 because defendant Sainz was the 136th

offender who was prosecuted and ordered to pay restitution. See id. at 605. By

46

Case: 17-12349 Date Filed: 05/08/2019 Page: 47 of 67

possessing and viewing the victim’s images, Sainz had re-victimized her and made

her feel that the abuse was continuing. Id. at 604.

In finding no legal error or abuse of discretion in the $8,387.43 restitution

award, the Seventh Circuit affirmed and reasoned: (1) that the Supreme Court in

Paroline “avoided rigid or mechanical rules” and left the district courts with

“considerable discretion”; (2) the amount of restitution for a possessor like Sainz

“should be neither ‘severe’ nor a ‘token or nominal amount’”; (3) Paroline does not

require “district courts to consider in every case every factor mentioned” and the

district court does “not err by not addressing every Paroline factor” 5; and (4) the

Paroline factors are permissive, not mandatory and provide “rough guideposts” that

“district courts might consider in determining a proper amount of restitution.” Id.

at 605-07 (internal quotation marks omitted). The Seventh Circuit recognized that

the 1/n method is not appropriate for all cases because, when n is “very small or

very large, a more nuanced method may be required.” Id. at 607. The Seventh

Circuit concluded, however, that the application of the 1/n method to Sainz’s case

“resulted in a reasonable restitution order of $8,400 for an offender who possessed

six images of the victim and indisputably contributed to her harm.” Id.

5

The Seventh Circuit explained some of the Paroline factors refer to information that may

not be “reliably known,” such as “the number of offenders likely to be convicted in the future or

the broader numbers of offenders who were involved but are unlikely to be caught.” Sainz, 827

F.3d at 607. The Seventh Circuit stated that “the Supreme Court made clear in Paroline that the

difficulty of coming up with reasonable estimates for an indeterminate number of other offenders

should not be a barrier to all compensation for victims of child pornography.” Id.

47

Case: 17-12349 Date Filed: 05/08/2019 Page: 48 of 67

We acknowledge that the defendant Sainz did not ask the court to

disaggregate the losses from the initial abuser. Nonetheless, the Seventh Circuit’s

decision is instructive because it emphasizes that (1) the district court has

“considerable discretion,” (2) the court’s method of restitution calculation can vary

from case to case depending on the facts, and (3) “the bottom line” is that the

district court’s award of $8,387.43 was “substantively reasonable” for the

defendant possessor Sainz, even though there were hundreds of other possessors of

the same victim’s images. See id. at 604-607.

C. Ninth and Tenth Circuits’ Decisions

In contrast to these decisions, the Ninth and Tenth Circuits have determined

that district courts must engage in some level of disaggregation as to the harms

caused by the original abuse versus the harms caused by later distributors and

possessors before awarding restitution against a particular possessor of child

pornography. See United States v. Galan, 804 F.3d 1287 (9th Cir. 2015); United

States v. Dunn, 777 F.3d 1171 (10th Cir. 2015). But even those post-Paroline

decisions are nuanced and do not adopt a rigid, mathematical rule in that regard.

Furthermore, the facts of the Tenth Circuit’s Dunn case are important to

understand what the Tenth Circuit did or did not conclude in that case.

In Dunn, one victim sought restitution of $583,955, which represented her

total losses minus the amount of restitution already received from other defendants.

48

Case: 17-12349 Date Filed: 05/08/2019 Page: 49 of 67

See Dunn, 777 F.3d at 1174, 1179. Because Dunn was a distributor of the images,

the district court determined that “he should be held jointly and severally liable for

the entirety of [the victim’s] injuries.” Id. at 1179. The victim’s total losses were

$1,330,015, and the district court held Dunn responsible for $583,955 of those total

losses as the amount not yet paid. See id. at 1181.

In reversing, the Tenth Circuit emphasized that the district court held the

defendant Dunn liable for all of the victim’s unpaid losses, including those caused

by the initial abuser, and erred by not assessing Dunn’s individual relative role in

the causal process underlying the victim’s losses. See id. at 1181. The Tenth

Circuit concluded: “[T]o the extent that the district court relied on an expert report

that did not disaggregate [the harms caused by the original abuser], the district

court’s adoption of $1.3 million as the total measure of damages cannot stand.” Id.

at 1182.6 The disaggregation conclusion in Dunn must be read in the factual

context of a reversal of a district court’s ruling that a defendant was jointly and

6

Though it has not addressed whether district courts must disaggregate, the First Circuit

has held that a district court order comported with Paroline’s framework where it “excluded past

costs and based its award on an estimate of [the victim’s] future therapy costs, occasioned by

defendant’s conduct.” United States v. Rogers, 758 F.3d 37, 39 (1st Cir. 2014). The district

court also “limited the losses to general losses from ‘continuing’ traffic” in the victim’s images

and “distinguished the future therapy losses attributable to defendant from the harm resulting

from other viewers and from [the victim’s] therapy needs relating to [the original abuser].” Id.

The First Circuit commented that the district court’s $3,150 restitution award “represent[ed] the

cost of 18 therapy visits,” but the district court “noted that 50 visits would also have been a

reasonable conclusion.” Id. The mere fact that this type of formal disaggregation is permissible

under Paroline, however, does not mean that it is required.

49

Case: 17-12349 Date Filed: 05/08/2019 Page: 50 of 67

severally liable with all other defendants, including the abuser, for the entirety of

the victim’s $1,330,015 total losses, minus only what other defendants had already

paid. We read Dunn as requiring disaggregation in that case because the defendant

was held jointly and severally liable with the abuser for the entirety of the losses;

we do not read Dunn as requiring disaggregation in each and every restitution case.

Unlike Dunn’s recounting of the restitution facts, the Ninth Circuit’s

decision in Galan does not indicate the amounts of the victim’s losses or even the

restitution award at issue. Galan, 804 F.3d at 1288. Rather, Galan recounts only

these two facts: (1) the defendant Galan was not the victim’s original abuser, who

“made images of his disgusting crimes against [the victim] over an extended

period” of time; and (2) that abuse ended about 11 years before Galan possessed

the images. See id.

In reversing, the Ninth Circuit went much further than the Tenth. The Ninth

Circuit held “that in calculating the amount of restitution to be imposed upon a

defendant who was convicted of distribution or possession of child pornography,

the losses, including ongoing losses, caused by the original abuse of the victim

should be disaggregated from the losses caused by the ongoing distribution and

possession of images of that original abuse, to the extent possible.” Id. at 1291.

The Ninth Circuit concluded “that Galan should not be required to pay for losses

caused by the original abuser’s actions.” Id. at 1290. The Ninth Circuit

50

Case: 17-12349 Date Filed: 05/08/2019 Page: 51 of 67

determined, in effect, that some type of calculation should be made between

original abusers on the one hand and the distributors and possessors on the other.

See id. at 1288, 1290.

Importantly, however, the Ninth Circuit cautioned that it “express[ed] no

opinion about what portion of the victim’s ongoing loss should be attributable to an

original abuser.” Id. at 1291. It also did not instruct how the disaggregation

calculation should be done, and it even added that “[i]f the ultimate apportionment

is not scientifically precise, we can only say that precision is neither expected nor

required.” Id.

D. Our Analysis

After careful review of Paroline, we conclude that a district court is not

required to determine, calculate, or disaggregate the specific amount of loss caused

by the original abuser-creator or distributor of child pornography before it can

decide the amount of the victim’s losses caused by the later defendant who

possesses and views the images. Paroline requires no such disaggregation.

Certainly, Paroline directed district courts to hold a defendant accountable only for

his own individual conduct and set a restitution “amount that comports with the

defendant’s relative role” in causing the victim’s general losses. See Paroline, 572

U.S. at 454-55, 458-59, 134 S. Ct. at 1725, 1727. How a district court arrives at

that figure is largely up to the district court, so long as the number is a “reasonable

51

Case: 17-12349 Date Filed: 05/08/2019 Page: 52 of 67

and circumscribed award” that is “suited to the relative size” of the defendant’s

causal role in the entire chain of events that caused the victim’s loss. Id. at 459,

134 S. Ct. at 1727.

In arriving at that figure, Paroline does require some consideration by the

district court of whether the defendant possessor was also an abuser-creator or a

distributor. See id. Indeed, that is why Paroline includes among its list of relevant

factors “whether the defendant had any connection to the initial production of the

images,” and “whether the defendant reproduced or distributed images of the

victim.” Id. at 460, 134 S. Ct. at 1728. But those factors do not require that the

district court make fact findings about the amount of losses caused by different

groups of offenders.

To be clear, the district court should ensure that its restitution order relates

only to the amount of harm and loss caused by the defendant possessor. But

Paroline also repeatedly stresses the flexibility and broad discretion district courts

have in arriving at such a reasonable restitution amount. See, e.g., id. at 459, 134

S. Ct. at 1727-28 (“[A] court must assess as best it can from available evidence the

significance of the individual defendant’s conduct in light of the broader causal

process that produced the victim’s losses. This cannot be a precise mathematical

inquiry and involves the use of discretion and sound judgment.”); id. at 459-60,

134 S. Ct. at 1728 (“[I]t is neither necessary nor appropriate to prescribe a precise

52

Case: 17-12349 Date Filed: 05/08/2019 Page: 53 of 67

algorithm for determining the proper restitution amount at this point in the law’s

development. Doing so would unduly constrain the decisionmakers closest to the

facts of any given case.”); id. at 460, 134 S. Ct. at 1728 (“These factors need not be

converted into a rigid formula . . . . They should rather serve as rough guideposts

for determining an amount that fits the offense.”); id. at 462, 134 S. Ct. at 1729

(stating, “the approach articulated above involves discretion and estimation,” and

“courts can only do their best to apply the statute as written in a workable

manner”).

Like the Eighth Circuit, we think it would be inconsistent with Paroline’s

flexible, discretionary framework to require district courts to perform an initial,

formal step of calculating and then separately assigning a total loss amount to the

initial abuser, then one to the distributors and possessors generally, and only then

one to the particular defendant possessor. Rather, even if a victim’s total loss

estimate includes losses caused both by the original abuser-creator, the distributors,

and other possessors, the district court need only indicate in some manner that it

has considered that the instant defendant is a possessor, and not the initial abuser or

a distributor, and has assigned restitution based solely on the defendant possessor’s

particular conduct and relative role in causing those losses. See id. at 458-62, 134

S. Ct. at 1727-29.

53

Case: 17-12349 Date Filed: 05/08/2019 Page: 54 of 67

Here, the district court did exactly that. In its restitution order, the district

court explicitly found up front that “there is no evidence with respect to any victim

that [Rothenberg] reproduced or distributed images of the victim or that he had [a]

connection to the initial production of the images.” The district court expressly

stated that it had “taken these factors into consideration in assigning [Rothenberg]

a relative role as the proximate cause of these victims’ losses.” And in setting each

individual award, the district court reiterated that Rothenberg “neither created nor

distributed” the victim’s image. Under Paroline, that is enough. We therefore

reject Rothenberg’s disaggregation argument.

Before concluding, we recognize that the Supreme Court in Paroline did

note in dicta that “[c]omplications may arise in disaggregating losses sustained as a

result of the initial physical abuse, but those questions may be set aside for present

purposes.” Id. at 449, 134 S. Ct. at 1722. We do not read this dicta, which is

contained in a parenthetical, as requiring in any way that the district courts in

possessor cases take on the job of determining the harm and loss caused by the

initial abuser or the distributors. 7 Rather, the district court’s job is to determine the

7

We acknowledge that the Ninth Circuit concluded that the set-aside statement in this

parenthetical meant the Supreme Court “plainly perceived a need for separation” of losses from

the initial abuser and the later possessor defendants. Galan, 804 F.3d at 1290. However, we read

the dicta in this parenthetical sentence not in isolation, but in the context surrounding it, which to

us signals that in possessor cases a court is not required to delve into the special losses caused by

the original abuser. Rather, in possessor cases, the court is examining only the general losses

caused by the continuing traffic in the pornographic images and awarding restitution that

54

Case: 17-12349 Date Filed: 05/08/2019 Page: 55 of 67

defendant possessor’s causal role in the general losses caused by his participation

in the ongoing traffic in the victim’s images.

We likewise reject Rothenberg’s argument that the district court erred in

creating restitution disparities between himself and other possessors by

“impos[ing] restitution in amounts substantially above the average [for other

possessors] without providing any explanation at all.” We recognize that the

Supreme Court in Paroline listed as a factor “the number of past criminal

defendants found to have contributed to the victim’s general losses” and noted that

the government “could also inform district courts of restitution sought and ordered

in other cases.” See id. at 460, 462, 134 S. Ct. at 1728-29. However, the Supreme

Court did not require district courts to dive into the facts of every past order and

position their restitution findings in relation to those of other courts. See id. The

district court is not required to say why it did not follow or disagreed with

restitution orders as to the same victim imposed by other courts. Paroline requires

no such fact findings or analysis. Rather, the number of past criminal defendants

and their restitution amounts, even as to the same victim, are just one of many

comports with the defendant possessor’s relative role as a possessor. In our view, nothing in

Paroline requires disaggregation, and everything in Paroline suggests otherwise.

55

Case: 17-12349 Date Filed: 05/08/2019 Page: 56 of 67

factors the district court considers generally without having to make mathematical

calculations. 8 See id.

VIII. SUFFICIENCY OF THE EVIDENCE

A. McGarity

Rothenberg’s next argument concerns victims Sierra, Jane, Sarah, Vicky,

Amy, and Casseaopeia. 9 As to these six victims, Rothenberg argues that the

district court erred in relying on loss estimates that were based on psychological

evaluations conducted before his arrest and thus before these victims learned of his

criminal possession offense, citing this Court’s prior precedent in United States v.

McGarity, 669 F.3d 1218 (11th Cir. 2012). The government responds that the

portion of McGarity on which Rothenberg relies was overruled by Paroline.

In McGarity, which was decided prior to Paroline, this Court concluded that

a psychological evaluation performed before the defendant’s arrest and prosecution

could not show the harm to the victim. 669 F.3d at 1269. More specifically, for

proximate cause to exist in a child pornography case, “there must be a causal

connection between the actions of the end-user and the harm suffered by the

8

In this case, the government’s submission and calculations used the 1/n method, but only

as a starting point for the district court’s exercise of discretion and then application of the

Paroline factors. While we affirm the thorough and multifactored process used in this case, we

caution that the application of a strict 1/n approach, in which the only thing the district court does

is divide the total loss amount by the total number of defendants who have been ordered to pay

restitution, ordinarily will not meet the individualized assessment requirement of Paroline.

9

On appeal, Rothenberg does not challenge the evidentiary basis for victim Pia’s $5,000

restitution award.

56

Case: 17-12349 Date Filed: 05/08/2019 Page: 57 of 67

victim.” Id. The McGarity Court determined that, in that case, the government

failed to provide any basis for determining “whether [the defendant’s] possession

of child pornography proximately caused any of [the victim’s] harm,” given the

victim’s psychological evaluation occurred before the defendant’s arrest and

prosecution. Id.

As such, the McGarity Court determined that the psychological evaluation

could not show the harm caused to the victim by the particular defendant’s conduct

in that case. Id. at 1269-70 (citing with approval the Second Circuit’s decision in

United States v. Aumais, 656 F.3d 147, 154 (2d Cir. 2011), that remarked that the

victim’s psychological evaluation preceded the defendant’s arrest, and thus it could

not demonstrate the impact on the victim caused by that defendant). In other

words, the McGarity Court concluded that to establish proximate cause, the

government must show that the victim actually learned of the particular

defendant’s possession of her images. See id. at 1269-70.

We agree with the government that this aspect of McGarity was abrogated

by Paroline. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(“[A] prior panel’s holding is binding on all subsequent panels unless and until it is

overruled or undermined to the point of abrogation by the Supreme Court or by

this court sitting en banc.”). In requiring to show harm that the victim was aware

of a particular defendant’s conduct, the McGarity Court essentially required that

57

Case: 17-12349 Date Filed: 05/08/2019 Page: 58 of 67

the government establish a direct, but-for causal link between some portion of the

victim’s losses and the specific defendant’s offense. See McGarity, 669 F.3d at

1269-70. As discussed above, however, Paroline rejected exactly that sort of direct

or but-for causation requirement in setting out its new standard. See Paroline, 572

U.S. at 450-59, 134 S. Ct. at 1722-28. In Paroline, the Supreme Court recognized

that “it is not possible to prove that [a victim’s] losses would be less (and by how

much) but for one possessor’s individual role in the large, loosely connected

network through which her images circulate,” nor is there “a practical way to

isolate some subset of the victim’s general losses that [the defendant’s] conduct

alone would have been sufficient to cause.” Id. at 450-51, 134 S. Ct. at 1723.

Nevertheless, the Supreme Court explained that “it is indisputable that [the

defendant] was a part of the overall phenomenon that caused [the victim’s] general

losses.” Id. at 457, 134 S. Ct. at 1726.

In Paroline, the Supreme Court thus held that, “[i]n this special context”

where it is clear both that the defendant possessed images of the victim and that the

victim has outstanding losses as a result of the traffic in her images, “but where it

is impossible to trace a particular amount of those losses to the individual

defendant,” courts should order restitution “in an amount that comports with the

defendant’s relative role in the causal process that underlies the victim’s general

losses.” Id. at 458, 134 S. Ct. at 1727. The Supreme Court held that the

58

Case: 17-12349 Date Filed: 05/08/2019 Page: 59 of 67

government need not establish that some specific portion of the victim’s losses

were directly caused by the defendant possessor’s conduct, as McGarity had

required. See id.; McGarity, 669 F.3d at 1269. Rather, the government need

establish only that the victim suffered losses from the traffic in her images and that

the defendant contributed to those losses by possessing her images, regardless of

whether the victim was specifically aware of the defendant’s conduct. Paroline,

572 U.S. at 458, 134 S. Ct. at 1727; see also id. at 442, 450, 134 S. Ct at 1718,

1723 (noting that the parties “stipulated that the victim did not know who Paroline

was and that none of her claimed losses flowed from any specific knowledge about

him or his offense conduct,” and the victim therefore could not show her losses

“would have been any different but for Paroline’s offense”).

We therefore conclude that the portion of McGarity’s holding requiring the

government to show that a child pornography victim was aware of, and specifically

harmed by, a particular defendant possessor’s conduct was abrogated by Paroline.

See Archer, 531 F.3d at 1352. Consequently, Rothenberg’s challenge to the

restitution awards for six victims—Sierra, Jane, Sarah, Vicky, Amy, and

Casseaopeia—based on that portion of McGarity fails. 10

10

The government asserts that Rothenberg did not specifically raise this before-my-arrest

argument in the district court, and it should be reviewed only for plain error. We need not decide

that issue; regardless of the standard of review, this claim fails because Paroline overruled this

part of McGarity and Paroline was decided before Rothenberg’s offense.

59

Case: 17-12349 Date Filed: 05/08/2019 Page: 60 of 67

B. Mya and Jenny

Next, as to victims Mya and Jenny, Rothenberg argues the government

failed to submit reliable or sufficient evidence of their losses because neither of

those victims had psychological or economic reports detailing their losses. In

opposition, the government asserts that it need not submit expert reports to

establish a victim’s losses and that the evidence presented in support of Mya’s and

Jenny’s restitution requests provided a sufficient basis for the district court’s

awards. 11

The government bears the burden of proving the restitution amount by a

preponderance of the evidence. Osman, 853 F.3d at 1189. The government must

do so “with evidence bearing sufficient indicia of reliability to support its probable

accuracy.” Id. (internal quotation marks omitted). Nevertheless, because “the

determination of the restitution amount is by nature an inexact science,” a district

court “may accept a reasonable estimate of the loss based on the evidence

presented.” Id. (internal quotation marks omitted).

11

We disagree with the government’s contention that Rothenberg did not preserve his

challenge to Mya’s and Jenny’s restitution awards on the ground that they were not supported by

competent evidence. Accordingly, we review the factual findings underlying the district court’s

restitution orders as to Mya and Jenny for clear error, Osman, 853 F.3d at 1188, and the amount

of their restitution awards for an abuse of discretion, see Robertson, 493 F.3d at 1330; see also

Paroline, 572 U.S. at 462, 134 S. Ct at 1729 (recognizing that “[d]istrict courts routinely exercise

wide discretion . . . in fashioning restitution orders”).

60

Case: 17-12349 Date Filed: 05/08/2019 Page: 61 of 67

1. Mya

Regarding Mya, the district court did not clearly err in determining that

sufficient evidence supported Mya’s restitution request. One of Mya’s counsel,

Carol Hepburn, submitted a signed declaration stating Mya needed therapy and/or

medical care. Rothenberg faults the district court for accepting the “self-serving”

estimate provided by Mya’s counsel that Mya’s future medical costs would likely

exceed $100,000. In her declaration, Hepburn explained that the $100,000

estimate was not just pulled out of thin air. Rather, it was based on Hepburn’s

experience representing eight other, similarly situated child pornography victims.

Indeed, the restitution exhibits presented to the district court show that Hepburn

represented or co-represented several of the other victims in this case—Sierra, Pia,

Sarah, and Vicky. Considering Hepburn’s demonstrated experience in this area, it

was not unreasonable for the district court to consider her estimate as reliable

evidence of Mya’s likely future costs. See id.

Furthermore, counsel Hepburn explained that Mya was part of the same

child pornography series as Pia. Though a psychological evaluation was

unavailable for Mya at the time of the restitution hearing, 12 her co-victim Pia was

12

In challenging Mya’s and Jenny’s awards, Rothenberg also argues that a victim must

always supply an expert medical or psychological report to support her restitution request.

Rothenberg cites no caselaw for this proposition, and nothing in either Paroline or our own

precedent establishes such a rigid requirement. See Osman, 853 F.3d at 1189 (requiring only

that the government present evidence “bearing sufficient indicia of reliability”). Though such

61

Case: 17-12349 Date Filed: 05/08/2019 Page: 62 of 67

able to submit a preliminary evaluation. That evaluation indicated that, at a bare

minimum, Pia had estimated therapy costs of $81,900 and emphasized that this

estimate reflected “only the current, most critical needs” for Pia, who like Mya was

still a minor, and did not account for the full extent of her losses or the services she

would require over the course of her lifetime. And notably, Rothenberg does not

challenge the evidentiary basis for Pia’s restitution award in this case. That Mya’s

co-victim Pia had preliminary estimated costs of at least $81,900 is a further

indicator that counsel Hepburn’s $100,000 total cost estimate for Mya was

reasonable and appropriately relied upon by the district court. See id. On this

record, we are not left with a definite and firm conviction that the district court was

mistaken in concluding that sufficient evidence supported Mya’s restitution

request. See Robertson, 493 F.3d at 1330.

Nor did the district court abuse its broad discretion in awarding Mya her

requested restitution amount of $5,000. See id. Here, the district court properly

identified Paroline as the correct legal standard for awarding restitution in child

pornography cases. In setting the amount of Mya’s restitution award, the district

court addressed several relevant Paroline factors, noting that: (1) Rothenberg

possessed one image of Mya; (2) no other defendant was yet ordered to pay

expert reports are undoubtedly helpful to district court’s in fashioning a restitution award, they

are by no means the only way to establish a reasonable estimate of a victim’s losses.

62

Case: 17-12349 Date Filed: 05/08/2019 Page: 63 of 67

restitution to Mya; (3) Mya had estimated losses exceeding $100,000; and

(4) Rothenberg neither created nor distributed Mya’s images. Paroline, 572 U.S. at

460, 134 S. Ct. at 1728. In light of these factors, the district court determined that

Mya’s $5,000 restitution request was reasonable. Given the wide discretion

afforded by Paroline to district courts in this context, we cannot say this

determination was unreasonable. See id. at 462, 134 S. Ct. at 1729; Jordan, 582

F.3d at 1249.

2. Jenny

Based on the more limited record as to Jenny, we agree with Rothenberg that

the district court clearly erred in determining there was sufficient evidence to

support Jenny’s $42,600 request. In support of her restitution request, Jenny’s

counsel submitted a restitution cover letter and a victim impact statement from

Jenny. In the letter, Jenny’s counsel requested restitution in the following

amounts: (1) $12,500 to pay for psychological and economic reports; (2) $5,000 in

attorney’s fees related to her request in this case; (3) $100 in legal fees related to

her request in this case; and (4) $25,000 for “the defendant’s appropriate share of

the general losses caused to Jenny.”

Like Mya, at the time of the restitution hearing, Jenny was still in the

process of obtaining expert reports documenting her total losses. Unlike Mya,

however, Jenny’s separate counsel did not provide any reasonable estimate of what

63

Case: 17-12349 Date Filed: 05/08/2019 Page: 64 of 67

those total losses might be. Indeed, counsel did not provide any estimate of what

Jenny’s total losses might be. Rather, in asserting that $25,000 was Rothenberg’s

“appropriate share” of Jenny’s losses, counsel relied on (1) a proposed statute that

would set a minimum restitution award of $25,000 for possession of child

pornography, and (2) Masha’s law, 18 U.S.C. § 2255(a), which creates a civil

cause of action for victims who suffered personal injury as a result of a child

pornography offense and sets a liquidated damages amount of $150,000.

This evidence is sufficient to show that Jenny has incurred costs of

$17,600—to pay for expert reports and legal fees—in connection with her

restitution request in this case, 13 yet it is not sufficient to establish what proportion

of Jenny’s as-yet-undetermined total losses Rothenberg proximately caused.

Jenny’s counsel suggested that the $150,000 liquidated damages amount in

Masha’s Law represents a reasonable estimate by Congress of the minimum

amount of total damages suffered by a child pornography victim. But the damages

available to a plaintiff in a civil lawsuit may be quite different from the concrete

“costs incurred” for which § 2259 provides recompense. See 18 U.S.C.

§ 2259(c)(2). For example, a plaintiff in a civil damages suit under § 2255(a) may

be able to recover for noneconomic losses, such as pain and suffering or mental

13

We note that the $12,500 portion of those costs for psychological and economic reports

would not necessarily be fully attributable to Rothenberg, as Jenny will, unfortunately but

undoubtedly, need to use those reports in support of future requests against other defendants.

64

Case: 17-12349 Date Filed: 05/08/2019 Page: 65 of 67

and emotional distress, that are not available in a restitution proceeding under

§ 2259. See Doe v. Hesketh, 828 F.3d 159, 170 (3d Cir. 2016). As such, we do

not see that Masha’s Law provides much guidance in the present context.

Similarly, Jenny’s counsel’s reliance on proposed legislation setting a

minimum $25,000 restitution award for child pornography possession offenses also

provides little to no guidance here. While Congress certainly would be well within

its rights to establish such a mandatory minimum restitution amount in these cases,

it had not done so at the time of Rothenberg’s restitution hearing. 14 Thus, the

district court was required to instead follow Paroline’s framework, which requires

an individualized assessment of each particular defendant’s restitutionary liability

based on his conduct and relative role in the causal process. Paroline, 572 U.S. at

445, 458-59, 462, 134 S. Ct. at 1720, 1727-29. Imposing a pre-set minimum

amount of restitution based solely on the type of offense Rothenberg committed

does not comply with Paroline’s framework, and the government did not submit

evidence from which the district court reasonably could have determined that

$25,000 was Rothenberg’s relative share of Jenny’s losses.

14

Congress recently passed, and the president signed, a different version of the bill

Jenny’s counsel referred to, but that version sets the minimum restitution amount much lower, at

$3,000. See Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L.

No. 115-299, 132 Stat. 4383 (2018).

65

Case: 17-12349 Date Filed: 05/08/2019 Page: 66 of 67

It is indisputable that Jenny has suffered some, likely large amount of losses

from the online traffic in her images. See id. at 457, 134 S. Ct. at 1726. It is also

indisputable that Rothenberg, who possessed 34 images and 1 video of Jenny, is

responsible for some, possibly significant amount of those losses. Id. But the

government bears the burden of proving at least a reasonable estimate of that

amount based on reliable evidence, and it has not satisfied that burden here.

Osman, 853 F.3d at 1189. In the absence of competent evidence to support the

award, the district court clearly erred in ordering Rothenberg to pay $42,600 in

restitution to Jenny. See id.

We therefore vacate the district court’s restitution award as to Jenny and

remand for further proceedings consistent with this opinion. On remand, the

district court should allow Jenny to supplement her restitution request with

evidence of her losses. See 18 U.S.C. § 3664(d)(5) (allowing a victim to seek an

amended restitution order if the victim discovers additional losses after

sentencing). The district court should then determine, in light of all the available

evidence and the Paroline factors, the portion of Jenny’s losses for which

Rothenberg is responsible. Paroline, 572 U.S. at 458-60, 134 S. Ct. at 1727-28.

66

Case: 17-12349 Date Filed: 05/08/2019 Page: 67 of 67

IX. CONCLUSION

For the foregoing reasons, we affirm the district court’s restitution order as

to victims Sierra, Jane, Pia, Mya, Sarah, Vicky, Amy, and Casseaopeia, and vacate

and remand the district court’s restitution order as to victim Jenny.

AFFIRMED in part; VACATED and REMANDED in part.

67