United States v. Gavin Harold

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 17, 2025
• Docket: 24-12506
• Status: Unpublished

Opinion

USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 1 of 10

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10825 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

GAVIN MICHAEL HAROLD, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:23-cr-00054-TPB-KCD-1 ____________________ ____________________ No. 24-12506 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 2 of 10

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versus

GAVIN MICHAEL HAROLD, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:23-cr-00054-TPB-KCD-1 ____________________

Before JORDAN, LUCK, and BLACK, Circuit Judges. PER CURIAM: Gavin Harold appeals the $37,000 restitution award imposed against him in connection with his sentence of 78 months’ impris- onment for his conviction of possession of prepubescent child por- nography under 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Harold argues that the district court violated his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), by imposing mandatory mini- mum restitution awards based on judicial factfinding. He also ar- gues that the district court erred by awarding $3,000 in restitution to one of the victims (“the MotherFull victim”) because the Gov- ernment failed to meet its burden under 18 U.S.C. § 2259 of USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 3 of 10

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showing that he proximately caused losses suffered by the victim. After review, 1 we affirm. I. DISCUSSION A. Judicial Factfinding Harold first argues that the district court violated his Fifth and Sixth Amendment rights under Apprendi and Alleyne by impos- ing a mandatory minimum restitution award based on judicial fact- finding. Specifically, he asserts that under Alleyne the factfinding necessary to support a mandatory minimum restitution award un- der § 2259 must be conducted by a jury rather than a judge. This argument is foreclosed by binding precedent. In United States v. Kluge, we rejected an identical argument and held that Al- leyne did not govern mandatory minimum restitution awards un- der § 2259. No. 23-10697, --- F.4th ---, manuscript op. at *16-19 (11th Cir. July 31, 2025) (citing Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006)). Accordingly, the district court did not err on this ground. B. MotherFull Victim Harold also argues that the district court erred by awarding $3,000 in restitution to the MotherFull victim because the

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

error the factual findings underlying that order.” United States v. Rothenberg, 923 F.3d 1309, 1327 (11th Cir. 2019). USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 4 of 10

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Government failed to meet its burden in showing that he proxi- mately caused losses suffered by the victim. As an initial matter, we disagree with the Government that we should review this issue for plain error. See United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007) (“When the defendant does not preserve an argument for appeal, we review for plain er- ror.”). Harold argued before the district court that the MotherFull victim was not entitled to a restitution award because her restitu- tion request did not quantify any losses that she claimed to have suffered. Even though there are differences between that argu- ment and the one he now raises, an appellant may raise alternative arguments on appeal as to a preserved issue. See United States v. Horn, 129 F.4th 1275, 1297-98 (11th Cir. 2025) (“Precedent is clear that while an issue can be waived, alternative arguments on an is- sue cannot.”); United States v. Brown, 934 F.3d 1278, 1306-07 (11th Cir. 2019) (“[O]nce a party has preserved an issue, it may ‘make any argument in support of that claim; parties are not limited to the precise arguments they made below.’” (quoting Yee v. City of Escon- dido, Cal., 503 U.S. 519, 534 (1992))). Harold’s argument on appeal is based on the same issue he raised in the district court—whether the MotherFull victim was entitled to restitution based on her non- specific restitution request—so Harold has preserved this issue for appellate review. As to the merits of the appeal, we conclude that the district court did not err by awarding $3,000 in restitution, the mandatory minimum award under § 2259, to the MotherFull victim. USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 5 of 10

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Pursuant to § 2259, district courts must award restitution to victims of a defendant convicted of “trafficking in child pornogra- phy,” which includes possession of child pornography under § 2252. 18 U.S.C. § 2259(b)(1)-(2), (c)(3). The statute defines “vic- tim” as any “individual harmed as a result of a commission of a crime under this chapter.” Id. § 2259(c)(4); United States v. McDan- iel, 631 F.3d 1204, 1208 (11th Cir. 2011) (concluding that an individ- ual was a victim for purposes of § 2259(c)(4) where the defendant possessed images of her sexual abuse as a minor). Once a court concludes that an individual is a “victim” for purposes of § 2259, it must order restitution through the following procedures: First, the court must “determine the full amount of the victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornog- raphy depicting the victim.” 18 U.S.C. § 2259(b)(2)(A). Then, the court must “order restitution in an amount that reflects the defend- ant’s relative role in the causal process that underlies the victim’s losses, but which is no less than $3,000.” 2 Id. § 2259(b)(2)(B). The statute defines “the full amount of the victim’s losses” to include “any costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim,” such as costs for psychiatric care, lost

2 A district court must also ensure that “[a] victim’s total aggregate recovery

. . . shall not exceed the full amount of the victim’s demonstrated losses.” 18 U.S.C. § 2259(b)(2)(C). Whether the district court complied with this require- ment is not at issue in this appeal. USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 6 of 10

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income, and “any other relevant losses.” Id. § 2259(c)(2). It is the Government’s burden to establish a victim’s entitlement to restitu- tion by the preponderance of the evidence. See id. § 3664(e) (“The burden of demonstrating the amount of the loss sustained by a vic- tim as a result of the offense shall be on the attorney for the Gov- ernment.”); id. § 2259(b)(3) (“An order of restitution under this sec- tion shall be issued and enforced in accordance with section 3664. . . .”); United States v. Osman, 853 F.3d 1184, 1189 (11th Cir. 2017). The Supreme Court has explained that a defendant’s offense conduct must proximately cause a victim’s losses for the victim to be entitled to restitution under § 2259, such that, “if the defendant’s offense conduct did not cause harm to an individual, that individual is by definition not a ‘victim’ entitled to restitution under § 2259.” 3 Paroline v. United States, 572 U.S. 434, 445-48 (2014). Specifically, the Court explained, [W]here it can be shown both that a defendant pos- sessed a victim’s images and that a victim has out- standing losses caused by the continuing traffic in those images but where it is impossible to trace a par- ticular amount of those losses to the individual

3 Congress amended § 2259 after the Supreme Court decided Paroline, and, alt-

hough the amendment moved certain language around, it did not abrogate that case. See United States v. Sotelo, 130 F.4th 1229, 1250-51 (11th Cir. 2025) (“Far from displacing Paroline, the [law amending § 2259] recognized the ap- proach outlined in Paroline as the proper one in § 2259 cases, and Congress explicitly mentioned Paroline in its findings.”). USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 7 of 10

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defendant by recourse to a more traditional causal in- quiry, a court applying § 2259 should order restitution in an amount that comports with the defendant’s rel- ative role in the causal process that underlies the vic- tim’s general losses. Id. at 458. The Court outlined certain factors that courts should consider in conducting this analysis but rejected a “precise mathe- matical inquiry” and instead recognized district courts’ “discretion and sound judgment” in making this determination. Id. at 459. Harold argues that the Government failed to meet its bur- den under § 2259 as to the MotherFull victim because the sole evi- dence of that victim’s loss, a letter written by the victim’s parents, did not quantify the amount of loss suffered by the victim and did not contain sufficient information for the district court to deter- mine whether he proximately caused any losses suffered by the vic- tim for purposes of § 2259. Therefore, he reasons that the district court erred by concluding that the MotherFull victim was entitled to the mandatory minimum restitution award. Harold is correct that the relevant letter, which is the only evidence that the Government submitted as to the MotherFull vic- tim’s losses, does not contain any specific quantification of those losses. The letter states that the MotherFull victim “has suffered greatly as a result of” her sexual exploitation. It adds that she “suf- fers severe anxiety attacks and has been diagnosed with anxiety, depression, [and] visual and auditory hallucinations as a result of the crimes committed against her,” and that she “is in therapy weekly and is on several prescription medications to help her deal USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 8 of 10

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with the ongoing effects of this abuse.” The letter notes that “most” of the victim’s expenses are covered through Medicaid, but she and her family nevertheless suffer “financial impacts,” includ- ing that her father is unable to work a full-time job because he needs to constantly take her to doctors’ appointments and counsel- ing sessions, which undermines their ability to save for the victim’s future. The letter does not contain a request for a specific amount of restitution, but the Government requested the mandatory min- imum on the victim’s behalf. This letter, while scant of important details, is sufficient to satisfy the Government’s burden as to the $3,000 mandatory mini- mum restitution award under § 2259, in conjunction with the un- objected-to facts in the presentence investigation report (“PSI”) de- tailing that Harold possessed depictions of the MotherFull victim’s sexual abuse. See United States v. Thomas, 32 F.4th 1073, 1077 (11th Cir. 2022) (“[U]nobjected-to factual allegations in the [PSI] are ad- mitted for sentencing purposes.”). The letter is sufficient to show that the MotherFull victim suffered at least some financial losses as a result of her sexual exploitation, and that Harold’s possession of the image and video depicting her proximately caused at least some of those losses. See McDaniel, 631 F.3d at 1209 (holding that the defendant’s possession of images depicting the victim proximately caused her losses relating to her trauma and emotional issues). Although the letter does not contain any specific quantifica- tion of the losses suffered by the MotherFull victim, the district court was permitted to “accept a reasonable estimate of the loss USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 9 of 10

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based on the evidence presented.” Osman, 853 F.3d at 1189 (quota- tion marks omitted). Therefore, the district court could use the letter to accept the Government’s position that the MotherFull vic- tim suffered at least some loss such that she was entitled to some amount of restitution under § 2259. See United States v. Rothenberg, 923 F.3d 1309, 1337 (11th Cir. 2019) (rejecting an argument that the Government failed to satisfy its burden under § 2259 where the vic- tims did not submit “psychological or economic reports detailing their losses” but relied solely on a declaration written by their coun- sel describing their losses); United States v. Sotelo, 130 F.4th 1229, 1252 (11th Cir. 2025) (same). Once the district court determined that the MotherFull vic- tim was entitled to some amount of restitution under § 2259, it was required at the very least to award her $3,000. See 18 U.S.C. § 2259(b)(2)(B), (4)(A). For that reason, the district court did not err by awarding the mandatory minimum restitution amount to the MotherFull victim. 4 II. CONCLUSION The district court did not violate Harold’s Fifth and Sixth Amendment rights by imposing a mandatory minimum restitution award through judicial factfinding. The district court also did not

4 It appears that the district court did not technically comply with all of § 2259’s

procedures because it did not determine the full amount of the MotherFull victim’s losses or conduct the Paroline causation analysis. See 18 U.S.C. § 2259(b)(2)(A); Paroline, 572 U.S. at 458-59. However, Harold did not raise this issue in his appellate brief, so it is not properly before us. USCA11 Case: 24-10825 Document: 49-1 Date Filed: 09/17/2025 Page: 10 of 10

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err by awarding the MotherFull victim the mandatory minimum restitution amount under § 2259. Accordingly, we affirm the resti- tution award. AFFIRMED.