USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 1 of 22
[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________
No. 23-10697 ____________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
KARL PATRICK KLUGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the Middle District of Florida USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 2 of 22
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D.C. Docket No. 2:22-cr-00023-SPC-NPM-1 ____________________ Before BRANCH, LUCK, and LAGOA, Circuit Judges. LAGOA, Circuit Judge: Karl Patrick Kluge appeals his sentence for possession of child pornography. Kluge challenges several aspects of the amended judgment below, including the district court’s calculation of his offense level, the restitution order, and the way Kluge’s sen- tence was pronounced. After careful review and with the benefit of oral argument, we affirm both Kluge’s sentence and the order of restitution. I. FACTUAL AND PROCEDURAL BACKGROUND In May 2021, the Federal Bureau of Investigation (“FBI”) dis- covered that a computer belonging to Karl Patrick Kluge was shar- ing files containing child pornography via a peer-to-peer network. After obtaining a search warrant, the FBI searched Kluge’s resi- dence and seized several digital devices belonging to Kluge, includ- ing a thumb drive, a laptop computer, and three cellphones. A fo- rensic examination of those devices revealed that Kluge had used file-sharing software to download and share over 300 images and 150 videos depicting minors engaged in sexually explicit conduct. On March 9, 2022, a grand jury in the Middle District of Florida indicted Kluge on one count of possessing, and accessing with intent to view, child pornography involving a minor under twelve years of age, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Kluge waived his right to a jury trial and proceeded to a USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 3 of 22
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bench trial based on stipulated facts. Following the bench trial, the district court found Kluge guilty on the charged offense. Prior to sentencing, the United States Probation Office pre- pared a Presentence Investigation Report for Kluge, which calcu- lated Kluge’s total offense level to be 30. This calculation included a five-level enhancement under U.S.S.G. § 2G2.2(b)(7)(D) for of- fenses involving 600 or more images of child pornography. Based on the Sentencing Commission’s commentary in Application Note 6(B)(ii) to this section, each video was counted as 75 images, plac- ing Kluge well into the highest enhancement category. Kluge objected to the district court’s calculation of this en- hancement at his sentencing hearing, arguing that “the text of the guideline does not suggest a distinction between a still image or a video image.” The district court overruled that objection, finding that the Guideline was ambiguous as to the number of images in a video and that reliance on the commentary was appropriate. Ac- cordingly, the court calculated Kluge’s total offense level as 30, re- sulting in an advisory guideline range of 97 to 121 months’ impris- onment. The district court sentenced Kluge to 97 months’ imprison- ment, to be followed by 15 years of supervised release. In pro- nouncing Kluge’s sentence, the court explained that, while on su- pervised release, Kluge would “need to comply with the manda- tory and standard conditions adopted here in the Middle District of Florida,” but did not orally enumerate each standard condition. The written judgment, however, listed each of these conditions. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 4 of 22
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After sentencing, thirteen individuals submitted claims seek- ing restitution under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-229, 132 Stat. 4383 (codified at 18 U.S.C. § 2259). That law requires a defendant con- victed of trafficking in child pornography to pay each victim man- datory restitution “in an amount that reflects the defendant’s rela- tive role in the causal process that underlies the victim’s losses, but which is no less than $3,000.” 18 U.S.C. § 2259(b)(2)(B). Kluge moved to empanel a jury to determine the amount of restitution, asserting that imposing restitution based on judicial fact-finding would violate his Fifth and Sixth Amendment rights. The district court denied Kluge’s motion, concluding that a criminal defend- ant’s constitutional right to a jury trial does not extend to factual findings underlying restitution awards. The district court ulti- mately ordered Kluge to pay $3,000 in restitution to each of the thirteen victims—the mandatory minimum—totaling $39,000. The district court then issued an amended judgment, reflecting both the original sentence and the restitution order, which Kluge timely appealed. II. STANDARDS OF REVIEW “We review de novo the interpretation and application of the Sentencing Guidelines.” United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc). Likewise, we review de novo the legality of a restitution order. United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004). USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 5 of 22
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In general, we review the imposition of discretionary condi- tions of supervised release for abuse of discretion, United States v. Etienne, 102 F.4th 1139, 1144 (11th Cir. 2024), but when a defendant fails to raise his objection in the district court, we review for plain error, United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). We decide de novo whether the defendant had an “opportunity to object at sentencing because the court included the [condition] for the first time in its written final judgment.” United States v. Rodri- guez, 75 F.4th 1231, 1246 n.5 (11th Cir. 2023) (quoting United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000)). III. ANALYSIS On appeal, Kluge raises four issues. First, Kluge argues that the district court miscalculated his offense level—specifically, the sentencing enhancement under U.S.S.G. § 2G2.2(b)(7)(D)—by er- roneously deferring to the Sentencing Commission’s commentary that a video “shall be considered to have 75 images.” U.S.S.G. § 2G2.2(b)(7) cmt. n.6(B)(ii). Next, Kluge challenges the propriety of the restitution order, both because the district court refused to submit all underlying factual determinations to a jury, and because the district court did not disaggregate any losses caused by the ini- tial abuse of each victim in calculating the restitution award. Fi- nally, Kluge maintains that he was deprived of an opportunity to object to his sentence’s conditions of supervised release because the district court did not orally pronounce each “standard condi- tion” of supervised release during the sentencing hearing. We ad- dress these issues in turn. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 6 of 22
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A. Calculating the Sentencing Enhancement under U.S.S.G. § 2G2.2(b)(7) We begin with Kluge’s argument that the district court mis- calculated his offense level by erroneously applying U.S.S.G. § 2G2.2(b)(7)’s five-point sentencing enhancement for an offense involving 600 or more “images” of child pornography. Under that section, a defendant’s offense level increases with the number of “images” involved in the offense based on the following schedule: (7) If the offense involved-- (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels. U.S.S.G. § 2G2.2(b)(7). 1 Although the text of the Guidelines does not define “im- ages,” the Sentencing Commission’s commentary defines the term as “any visual depiction . . . that constitutes child pornography.” Id. § 2G2.2(b)(7) cmt. n.6(A). The commentary also explains that, for “purposes of determining the number of images” involved in the offense, each “photograph” shall be counted as one “image,” and each “video, video-clip, movie or similar visual depiction shall be considered to have 75 images.” Id. § 2G2.2(b)(7) cmt. n.6(B). The
1 We sometimes refer to this section as the “image table” in this opinion. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 7 of 22
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commentary also recommends an upward departure if “the num- ber of images substantially underrepresents the number of minors depicted” or “the length of the visual depiction is substantially more than 5 minutes.” Id. At sentencing, the district court applied the commentary’s 75:1 images-to-video calculation to conclude that Kluge, who was caught with over 300 pictures and 150 videos, possessed more than 600 “images” of child pornography, and assigned him the five-point maximum enhancement. Kluge says that this was an error. Kluge contends that the district court should not have deferred to the commentary’s interpretation that a video contains 75 images. In- stead, Kluge argues that because “images” unambiguously means “pictures of child pornography,” without any distinction between still and moving pictures, the district court should have counted each video as one image. Like an “agency’s interpretation of its own legislative rules,” in some circumstances the Sentencing Commission’s commentary may be entitled to deference. See Dupree, 57 F.4th at 1276 (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)). In considering whether that is the case, we apply the three-step framework the Supreme Court articulated in Kisor v. Wilkie, 588 U.S. 558 (2019). See Dupree, 57 F.4th at 1274–77. At Step 1, we “must exhaust all the ‘traditional tools’ of con- struction,” considering “the text, structure, history, and purpose of a regulation” to determine whether the regulation is genuinely am- biguous. Kisor, 588 U.S. at 573–75 (quotation omitted). “‘If USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 8 of 22
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uncertainty does not exist’ after applying these tools, ‘there is no plausible reason for deference,’” and we simply apply the unambig- uous meaning of the Guideline. Dupree, 57 F.4th at 1275 (quoting Kisor, 588 U.S. at 574–75). But if “genuine ambiguity remains,” we proceed to Step 2, which asks whether the commentary’s interpretation of the text is “reasonable.” Kisor, 588 U.S. at 575 (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)). To be reasonable, that interpre- tation must “come within the zone of ambiguity the court has identified after employing all its interpretive tools,” such that it falls within “the outer bounds of permissible interpretation” estab- lished by the rule’s text, structure, and history. Id. at 576. Finally, if the commentary’s interpretation is reasonable, at Step 3, we “must make an independent inquiry into whether the character and context” of the agency’s reasonable interpretation “entitles it to controlling weight.” Id. Deference would not be ap- propriate if the interpretation is not the “official position” of the agency, does not implicate the agency’s “substantive expertise,” or fails to “reflect fair and considered judgment.” Id. at 576–79 (inter- nal quotations omitted). Only if these conditions are met do we defer to the commentary’s interpretation. See Dupree, 57 F.4th at 1274–75. Here, we need not go beyond Step 1, as § 2G2.2(b)(7) leaves no ambiguity regarding the number of “images” contained in a video. We start, “[a]s always with statutory interpretation, . . . with the text.” Rodriguez v. Branch Banking & Tr. Co., 46 F.4th 1247, 1254 USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 9 of 22
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(11th Cir. 2022). Because the Guidelines do not define “images,” we “look to the common usage” of the word to determine its ordi- nary meaning. United States v. Hall, 64 F.4th 1200, 1205 (11th Cir. 2023). In doing so, we “may turn to ‘dictionary definitions for guid- ance.’” Id. (quoting CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222−23 (11th Cir. 2001)). Contemporaneous with § 2G2.2(b)(7)’s promulgation in 2003, the Eleventh Edition of Merriam-Webster’s Collegiate Diction- ary defines “image” as “a visual representation of something” such as “a likeness of an object produced on a photographic material” or “a picture produced on an electronic display.” Image, Merriam- Webster’s Collegiate Dictionary (11th ed. 2003); see also A. Scalia & B.A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012) (“Words must be given the meaning they had when the text was adopted.”). Other dictionaries from around that time provide a similar understanding. See, e.g., Image, American Heritage Diction- ary (4th ed. 2000) (“A reproduction of the form of a person or ob- ject.”); Image, Shorter Oxford English Dictionary (6th ed. 2007) (“A representation of the external form of a person or thing in sculp- ture, painting, etc.”); Image, Oxford English Dictionary (3d ed. 2009) (“A physical or digital representation of something, originally captured using a camera from visible light, and typically repro- duced on paper, displayed on a screen, or stored as a computer file”; “any picture or graphic . . . in printed form[.]”). Based on these definitions, we reject Kluge’s assertion that “the plain meaning of ‘images’ does not distinguish between a still USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 10 of 22
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photo and a video.” Instead, “[o]rdinary usage makes plain that an ‘image’ is a fixed visual representation.” United States v. Haerty, 107 F.4th 175, 184 (3d Cir. 2024). As Judge Larsen explained in her thorough textual analysis of § 2G2.2(b)(7), “[o]ne can hardly repro- duce a moving thing ‘on paper’ or ‘in printed form.’” United States v. Phillips, 54 F.4th 374, 391 (6th Cir. 2022) (Larsen, J., concurring in the judgment) (quoting Image, Oxford English Dictionary (3d ed. 2009)). And as the Third Circuit also observed, “[i]f ‘image’ needs the modifier ‘moving’ to accurately describe what is depicted or displayed, then [it] can hardly be equated with the term ‘video.’” Haerty, 107 F.4th at 183. Rather, “a video inherently contains multiple ‘images,’” id. at 184, since a video is nothing more than a “sequence of images processed electronically into an analog or digital format and dis- played on a screen with sufficient rapidity as to create the illusion of motion and continuity,” Phillips, 54 F.4th at 392 (Larsen, J., con- curring in the judgment) (quoting Video, American Heritage Dic- tionary (5th ed. 2018)); see also Video, Merriam Webster’s Collegiate Dictionary (11th ed. 2003) (“a recording of a motion picture or tel- evision program for playing through a television set[;] . . . relating to, or involving images on a television screen or computer dis- play”); Videotape, Merriam Webster’s Collegiate Dictionary (11th ed 2003) (“a recording of visual images and sound”); Video, Oxford English Dictionary (3d ed. 2009) (“relating to, or concerned with the images displayed on a television or other electronic device, or the electrical signal, channel, etc., conveying such images”). And in the context of video, each individual image in that sequence is USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 11 of 22
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called a “frame.” See, e.g., Frame, Merriam Webster’s Collegiate Dictionary (11th ed. 2003) (“[O]ne picture in the series on a length of film.”); Frame, American Heritage Dictionary (5th ed. 2018) (“One of the set of still images that constitute a film or video.”). Thus, the plain meaning of § 2G2.2(b)(7) unambiguously instructs that each video frame that contains child pornography counts as one “image” for purposes of calculating any sentencing enhance- ment. In opposition to Kluge’s argument and in support of the dis- trict court’s calculation of Kluge’s sentence, the Government ar- gues that “images” as used in § 2G2.2(b)(7) is ambiguous and that the commentary’s interpretation that each video containing child pornography counts as seventy-five “images” is therefore entitled to deference. In an effort to find ambiguity in the Guideline’s text, the Government appeals to § 2G2.2(b)(7)’s purpose and history. To the extent those considerations are relevant, 2 they do not change our conclusion that “images” as used in § 2G2.2(b)(7) is plain and unambiguous.
2 Kisor requires a court to “exhaust all the ‘traditional tools’ of construction” “before concluding that a rule is genuinely ambiguous.” Kisor, 588 U.S. at 575 (quotation omitted). Because judicial construction of an agency rule or regu- lation does not differ methodologically from statutory construction, id., when the “text is clear, we needn’t consult extra-textual evidence concerning ‘his- tory’ and ‘purpose.’” Callahan v. U.S. Dep’t of Health & Hum. Servs. ex rel. Azar, 939 F.3d 1251, 1262 (11th Cir. 2019). Regardless, out of an abundance of cau- tion, we consider—and reject—the Government’s arguments that the history and purpose of § 2G2.2(b)(7) render the term “images” ambiguous. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 12 of 22
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Our understanding of § 2G2.2(b)(7)’s purpose “must be de- rived from the text.” Scalia & Garner, supra, at 56. According to the Government, “Congress added the image table to increase pun- ishments based on ‘the amount of child pornography involved in the offense.’” And the structure of the image table appears to re- flect that purpose, as the enhancement increases in proportion to the number of images involved in the offense. The Government maintains, however, that a one-frame-one- image rule would “obviat[e] the purpose of prescribing different levels,” because “the possession of almost any video would ‘vault the offender to the top of the range.’” But, as the Government concedes, “a video contains multiple images,” and thus a greater amount of child pornography than a still photograph, see United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019) (“[V]ideos and mov- ies cause more harm and so should be weighed much more heavily than photos or pictures.”). Counting each video frame as an image is therefore consistent with the purpose identified by the Govern- ment: linking punishment to the amount of child pornography possessed. To the extent that the Government believes that “quan- tifying pornographic matter contained in a video or motion picture on the basis of the number of frames contained within it may yield sentences that seem unusually harsh, we cannot engage in an exer- cise of semantic selection with an over-riding concern for results.” Haerty, 107 F.4th at 189. Moreover, the history surrounding § 2G2.2(b)(7) only con- firms the Guideline’s plain text. Congress enacted the image table USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 13 of 22
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to rectify the prior Guideline’s failure to account for the volume of the material at sentencing. See Haerty, 107 F.4th at 181 (“The Act amended the Sentencing Guidelines to increase penalties based on the amount of child pornography involved in the offense.” (quota- tion omitted)). Because the Guideline did not define “an ‘image’ for purposes of applying these new ‘image tables,’” the Sentencing Commission sought public comment on how videos should be counted. 68 Fed. Reg. 75,340, 75,353 (Dec. 30, 2003). In a letter to the Sentencing Commission, the Department of Justice expressly recognized that “[e]ach frame is equivalent to one still image.” See Letter from Deborah J. Rhodes, Counselor to the Assistant Att’y Gen., U.S. Dep’t of Just., to the U.S. Sentencing Comm’n, at 5 (Mar. 1, 2004), available at https://perma.cc/NCF7-ADKH. It is of no matter that neither the Sentencing Commission nor the Depart- ment of Justice ultimately endorsed this view, since the interpreta- tion the agency adopts becomes relevant “only ‘if the meaning of the words used is in doubt.’” Kisor, 588 U.S. at 574 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). And here, there is no doubt that “image” means “frame” in the context of a video. Unable to avoid § 2G2.2(b)(7)’s plain meaning, the Govern- ment argues that counting each frame containing child pornogra- phy as one image would result in absurdity. Specifically, the Gov- ernment takes issue with the fact that the one-frame-one-image rule would treat differently a “defendant [who] possessed a video taken by a super-slow-motion camera capturing 1000 frames per USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 14 of 22
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second” and another who “possessed the same video shot by a reg- ular camera.” To begin, the fact that a result seems harsh does not render it absurd. See, e.g., St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281, 295 (1908). Moreover, in the scenario posited by the Gov- ernment, any disparity in sentencing would simply be a function of the relative amount of child pornography each defendant pos- sessed. If either defendant “paused one of his videos and printed a frame,” each printout would count as one image. Phillips, 54 F.4th at 391 (Larsen, J., concurring in the judgment). So, the defendant who possessed more frames “necessarily . . . possess[ed] more por- nographic material.” Haerty, 107 F.4th at 189. It is hardly absurd that we would decline to “rewrite the statute that Congress has en- acted” simply because one child pornographer is caught with many more similar—though not identical—images. See Dodd v. United States, 545 U.S. 353, 359 (2005). * * * We conclude that § 2G2.2(b)(7) unambiguously dictates that each video frame containing child pornography counts as one im- age. To calculate this sentencing enhancement, the government must present evidence for the district court to determine the num- ber of frames containing child pornography. As the Third Circuit has recognized, this task could likely be accomplished by first iden- tifying “how many seconds within [the] video contain child por- nography” and then multiplying that number by the video’s frame rate. Haerty, 107 F.4th at 188. However, such review is not USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 15 of 22
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necessary here. At oral argument, Kluge conceded that, under the one-frame-one-image rule, his 300 pictures and 150 videos would contain more than 600 images of child pornography. Because Kluge remains in the highest category of the image table, his sen- tencing enhancement under § 2G2.2(b)(7) does not change based on the rule we announce today and we thus affirm the district court’s calculation of Kluge’s total offense level. B. The Restitution Order Next, we consider the propriety of the district court’s resti- tution order. For defendants convicted of trafficking child pornog- raphy, a district court must “order restitution in an amount that re- flects the defendant’s relative role in the causal process that under- lies the victim’s losses, but which is no less than $3,000.” 18 U.S.C. § 2259(b)(2)(B). After Kluge’s conviction, “13 of Kluge’s vic- tims . . . had requested restitution and had submitted documenta- tion supporting their requests.” The district court concluded at Kluge’s restitution hearing that it was “appropriate to grant restitu- tion in this case” and awarded each victim the mandatory mini- mum of $3,000, totaling $39,000. Kluge challenges that order on two grounds. First, Kluge argues that the district court’s refusal to submit the underlying fac- tual determinations as to the amount of restitution to a jury vio- lated his Fifth and Sixth Amendment rights. Second, Kluge main- tains that the district court was required to disaggregate the value of the victim’s losses caused by the initial abuse from the amount USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 16 of 22
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of restitution Kluge was ordered to pay. As explained below, both arguments fail under our binding precedent. 1. The Constitutionality of Judicial Factfinding for Restitution We begin with Kluge’s constitutional challenge to the resti- tution order. Kluge contends that a jury—rather than the judge— was required to “determine beyond a reasonable doubt . . . the es- sential findings required to trigger the $3,000 mandatory minimum restitution award[s],” including the identity of the victims, their to- tal losses, and the portion of those losses attributable to Kluge’s actions. Kluge bases this argument on the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Alleyne extended that rule by requiring that all “facts that increase mandatory minimum sentences . . . be sub- mitted to the jury” as well. Alleyne, 570 U.S. at 117. In Kluge’s view, “because a court can’t award any restitution without finding addi- tional facts about the victim’s losses,” Apprendi and Alleyne dictate that those findings should have been made by a jury. This argu- ment, however, relies on the assumption that Apprendi and its prog- eny apply to restitution at all. Our precedents vitiate that assump- tion. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 17 of 22
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In United States v. Gatlin, we considered whether Apprendi ap- plied in the context of mandatory restitution under 18 U.S.C. § 3663A. See 90 F.4th 1050, 1074 (11th Cir. 2024). Concluding that it did not, we explained that “we explicitly rejected this argument in Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006), where we held that Apprendi does not apply to restitution orders because the restitution statute, 18 U.S.C. § 3663, does not have a prescribed statutory maximum.” Gatlin, 90 F.4th at 1074. Just like § 3663 and § 3663A, § 2259 prescribes no statutory maximum for restitution. And without a statutory maximum, there can be no Apprendi issue. See Dohrmann, 442 F.3d at 1281. Kluge’s Alleyne argument fares no better. In his view, Alleyne applies because a finding of fact—specially, the identification of a victim—is “required to trigger the $3,000 mandatory minimum restitution award” under § 2259. But Alleyne’s protections “only come into consideration if we first conclude restitution is a crimi- nal penalty.” Gatlin, 90 F.4th at 1074 (quoting United States v. Wolfe, 701 F.3d 1206, 1217 (7th Cir. 2012)). In Gatlin, we explicitly “de- cline[d] to reach such a conclusion.” Id. (quoting Wolfe, 701 F.3d at 1217). Moreover, in broadly holding “that Apprendi does not apply to a restitution order,” Dohrmann adopted the view of our sister circuits that “restitution is a civil penalty, not a criminal one.” Dohrmann, 442 F.3d at 1281 (quoting United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000)); see United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005) (“[R]estitution orders . . . are not in the na- ture of a criminal penalty.”). That is also the case in the context of Alleyne. See United States v. Payne, 763 F.3d 1301, 1304 (11th Cir. USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 18 of 22
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2014) (“The same reasoning applies to Alleyne . . . because Alleyne is an extension of Apprendi.”). Resisting this conclusion, Kluge relies on our statement in United States v. Johnson, 983 F.2d 216, 220 (11th Cir. 1993) that resti- tution “is penal, rather than compensatory.” But neither Johnson— nor any of the other cases Kluge cites, see United States v. Twitty, 107 F.3d 1482, 1493 n.12 (11th Cir. 1997); United States v. Hairston, 888 F.2d 1349, 1355 (11th Cir. 1989); United States v. Satterfield, 743 F.2d 827, 836 (11th Cir. 1984)—consider whether restitution is the type of punishment that falls within “the historical role of the jury at common law,” S. Union Co. v. United States, 567 U.S. 347, 353 (2012) (quotation omitted), and thus, whether it is the type of penalty that triggers the Sixth Amendment right to a jury trial under Apprendi. Thus, these cases do not conflict with our later holdings that place restitution outside of Apprendi’s scope. In a supplemental filing, Kluge cites to this Court’s decision in United States v. Sotelo, 130 F.4th 1229 (11th Cir. 2025), and con- tends that the Court’s language that “[n]either the text of § 2259 nor any Supreme Court or Eleventh Circuit cases specifically ad- dress whether [§ 2259(b)(2)(B)’s] mandatory $3,000 is subject to Ap- prendi[,]” id. at 1250, means that Dohrmann and its progeny do not control here. Kluge misapprehends the language in Sotelo. First, as we explained in Sotelo, we did not reach the merits of the Apprendi restitution question because we were reviewing for plain error. Id. Because we were reviewing for plain error, we considered whether there was explicit statutory language or “precedent from the USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 19 of 22
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Supreme Court or this Court directly resolving” the issue. Id. As “[n]either the text of § 2259 nor any Supreme Court or Eleventh Circuit cases specifically address whether [§ 2259(b)(2)(B)’s] man- datory $3,000 is subject to Apprendi[,]” id. at 1250, we held that the district court did not plainly err in not applying Apprendi’s beyond- a-reasonable-doubt standard in determining restitution. Sotelo’s plain error analysis is thus not applicable here as we are addressing the merits. And as discussed above, our prior precedents have broadly “decline[d]” to extend Apprendi’s logic to the context of res- titution—mandatory or otherwise. Gatlin, 90 F.4th at 1074 (citing Dohrmann, 442 F.3d at 1281). Under our prior precedent rule, we remain bound by our holding that “Apprendi does not apply to res- titution orders,” id. (citing Dohrmann, 442 F.3d at 1281), and extend that holding to restitution orders pursuant to § 2259(b)(2)(B). We thus conclude that Kluge’s constitutional challenge to the restitu- tion order lacks merit. 3
3 While this appeal was pending, the Supreme Court granted certiorari in
United States v. Ellingburg, 113 F.4th 839 (8th Cir. 2024), cert. granted sub nom. Ellingburg v. United States, 145 S. Ct. 1899 (2025) (mem.), to address a circuit split on whether restitution under the Mandatory Victim Restitution Act is a criminal punishment for purposes of the Ex Post Facto Clause. In Ellingburg, the Eighth Circuit noted that the Eleventh Circuit recognizes restitution under the MVRA as “a criminal penalty.” 113 F.4th at 842 (citing United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998)). To be sure, we held in Siegel that MVRA restitution “cannot be applied to a person” retroactively without vio- lating the Ex Post Facto Clause because “restitution is a criminal penalty car- rying with it characteristics of criminal punishment.” Siegel, 153 F.3d at 1260. But Siegel “cannot make law beyond the facts of the cases in which those deci- sions are announced.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 20 of 22
20 Opinion of the Court 23-10697
2. Disaregation We next address Kluge’s argument that the district court erred in setting restitution by failing to “disaggregate” the value of the victim’s loss caused by the initial abuse from the award. But, as Kluge acknowledges, our opinion in United States v. Rothenberg, 923 F.3d 1309 (11th Cir. 2019), forecloses this argument. In Rothenberg, we made clear that “a district court is not re- quired 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.” Id. at 1333. Instead, a 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.” Id. at 1334 (citing Paroline v. United States, 572 U.S. 434, 458–62 (2014)). Here, the district court did just that by acknowledging that while “Kluge was not the indi- vidual who abused these children[,] . . . he was in possession of child pornographic material,” and thus contributed to “the issues
Cir. 2010). And while Siegel makes no holding as to the constitutionality of judicial fact finding for restitution, Gatlin and Dohrmann surely do. Under the prior panel precedent rule, “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 this court sitting en banc.” United States v Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 21 of 22
23-10697 Opinion of the Court 21
that these children now have to deal with.” We thus conclude that Kluge’s disaggregation argument fails. C. Notice of the Conditions of Supervised Release Lastly, Kluge argues that the district court erred by including thirteen discretionary conditions of supervised release in the writ- ten judgment, despite neither identifying those conditions on the record at sentencing nor enumerated in the presentence investiga- tion report. Kluge contends that we must review this issue de novo because he did not have the opportunity to object to the discretion- ary conditions before they were included in the written judgment. However, as Kluge conceded at oral argument, this argument is plainly foreclosed by our precedent in United States v. Hayden, 119 F.4th 832 (11th Cir. 2024). In Hayden, we explained that a defendant is given notice of, and opportunity to be heard on, the conditions of his supervised released as long as “the district court informed him that there were standard conditions attached to his supervised release” and “asked for objections before ending the hearing.” Id. at 838. Here, the district court afforded Kluge due process to object to the conditions of his supervised release, as it informed Kluge on the record that he would “need to comply with the mandatory and standard con- ditions [of supervised release] adopted here in the Middle District of Florida,” and gave him an opportunity to object to the sentence and how it was pronounced. Since Kluge raised no objections to the conditions of supervised release at his hearing, Hayden instructs that “we review his challenge for plain error.” Id. And, just as in USCA11 Case: 23-10697 Document: 66-1 Date Filed: 07/31/2025 Page: 22 of 22
22 Opinion of the Court 23-10697
Hayden, “[b]ecause the district court orally referenced the [thirteen] discretionary standard conditions of supervised release for the Mid- dle District of Florida and because the oral pronouncement and written judgment do not conflict, we conclude that the district court did not err—much less plainly err—when it failed to describe the conditions of supervised release in its oral pronouncement.” Id. at 838–89. IV. CONCLUSION For all these reasons, we affirm Kluge’s sentence and the or- der of restitution. AFFIRMED.