United States v. David Rothenberg

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 18, 2020
• Docket: 20-10990
• Status: Unpublished

Opinion

Case: 20-10990 Date Filed: 06/18/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10990 Non-Argument Calendar ________________________

D.C. Docket No. 0:16-cr-60054-BB-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 ________________________

(June 18, 2020)

Before MARTIN, BRANCH and HULL, Circuit Judges.

PER CURIAM:

David Rothenberg appeals the district court’s second and third amended

final judgments imposing a final restitution award. The government has moved for

summary affirmance and to stay the briefing schedule. Case: 20-10990 Date Filed: 06/18/2020 Page: 2 of 4

Summary disposition is appropriate, inter alia, where “the position of one of

the parties is clearly right as a matter of law so that there can be no substantial

question as to the outcome of the case, or where, as is more frequently the case, the

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th

Cir. 1969).1 An appeal is frivolous if it is “without arguable merit either in law or

fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quotation marks

omitted).

“We review the legality of a restitution order in a child pornography case de

novo and the underlying factual findings for clear error.” United States v. Osman,

853 F.3d 1184, 1188

(11th Cir. 2017). We are bound by a prior panel opinion, even if it was wrongly

decided, unless and until the opinion’s holding is overruled or undermined to the

point of abrogation by the Supreme Court or our Court sitting en banc. See United

States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019).

In Rothenberg, this Court expressly rejected Rothenberg’s argument that the

district court was required to formally disaggregate the harms the victims suffered

as a result of the proliferation of images of their sexual abuse from the harms the

victims suffered as a result of the abuse itself. United States v. Rothenberg, 923

1 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 2 Case: 20-10990 Date Filed: 06/18/2020 Page: 3 of 4

F.3d 1309, 1328-29, 1333-35 (11th Cir. 2019), cert. denied, 140 S. Ct. 812 (2020).

We recognized that a district court must “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.” Id. at 1333

(quotation marks omitted). However, we held that “[h]ow [the] district court

arrives at that figure is largely up to the district court, so long as the number is a

reasonable 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. (quotation marks omitted). While rejecting Rothenberg’s disaggregation

argument and affirming the restitution awards to eight of Rothenberg’s nine

victims, this Court agreed that the restitution award to the ninth victim was not

supported by sufficient evidence, vacated that award, and remanded. Id. at 1338-

40.

On remand, the district court stayed further proceedings pending resolution

of Rothenberg’s certiorari petition to the Supreme Court. In January 2020, the

Supreme Court denied Rothenberg’s petition. Subsequently, proceedings in the

district court resumed and both parties stipulated that a restitution hearing was

unnecessary. Rothenberg had no objection to the government’s $3,000 restitution

request for the remaining victim, “subject to his preservation with respect to the

disaggregation issue.” The district court then entered the final restitution order,

3 Case: 20-10990 Date Filed: 06/18/2020 Page: 4 of 4

ordering him to pay a total of $103,000 in restitution to the nine victims.

Here, there is no substantial question as to the outcome of the case because

Rothenberg’s argument is foreclosed by precedent. See Groendyke Transp., Inc.,

406 F.2d at 1162. Rothenberg’s argument that the district court was required to

disaggregate the victims’ harms caused by the initial abuse from their harms

caused by the later traffic in images when determining the restitution amount is

foreclosed by our precedent in Rothenberg, which Rothenberg expressly concedes.

See Rothenberg, 923 F.3d at 1333-35. That precedent is binding. See Gillis, 938

F.3d at 1198. As the government points out, Rothenberg does not argue that the

district court on remand misapplied our Court’s precedent in Rothenberg, he just

preserves his argument on appeal disagreeing with our initial Rothenberg decision.

Therefore, because there is no substantial question that Rothenberg’s

argument is foreclosed by precedent, we GRANT the government’s motion for

summary affirmance. See Groendyke Transp., Inc., 406 F.2d at 1162.

Accordingly, we DENY the accompanying motion to stay the briefing schedule as

moot.