United States v. Shawn Crawford

709 F.3d 541, 2013 WL 692512, 2013 U.S. App. LEXIS 4008
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 27, 2013
Docket11-5394, 11-5544
StatusPublished
Cited by29 cases

This text of 709 F.3d 541 (United States v. Shawn Crawford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shawn Crawford, 709 F.3d 541, 2013 WL 692512, 2013 U.S. App. LEXIS 4008 (6th Cir. 2013).

Opinions

ROGERS, J., delivered the opinion of the court in which MARBLEY, D.J., joined, and KETHLEDGE, J., joined in part. KETHLEDGE, J. (pp. 556-57), delivered a separate opinion concurring in all but part II.B of the majority’s opinion and concurring in the judgment.

OPINION

ROGERS, Circuit Judge.

In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received. Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases. Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers. Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.

I. Background

A. Gamble

James Gamble pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). At his sentencing hearing, in addition to terms of imprisonment and supervised release, the district court ordered Gamble to pay $1,002,766.85 in restitution. The amount was owed to one of the individuals depicted in some of the images in Gamble’s possession, known today by her pseudonym, “Vicky.” Gamble took no part in the production of the images of Vicky, and there is no record of his ever meeting her or trying to contact her. However, the Government submitted several exhibits [544]*544outlining Vicky’s losses as a result of being the subject of a series of pornographic images as a child and of her knowledge that the images were still in circulation, including past and future psychological treatment, past and future educational and vocational counseling, future lost earnings, and attorneys’ fees. The Government argued that, under 18 U.S.C. § 2259, Gamble was responsible for these losses, as was every other defendant convicted of distribution, receipt, and possession of the images.

18 U.S.C. § 2259, which is entitled “Mandatory restitution,” reads in full:

(a) In general. — Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.
(b) Scope and nature of order.—
(1) Directions. — -The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).
(2) Enforcement. — An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition. — For purposes of this subsection, the term “full amount of the victim’s losses” includes 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.
(4)Order mandatory. — (A) The issuance of a restitution order under this section is mandatory.
(B) A court may not decline to issue an order under this section because of—
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.
(c)Definition. — For purposes of this section, the term “victim” means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.

At the hearing, counsel for Gamble objected to restitution, arguing that “in the proof before the Court there is no identifiable proof as to what damages, if any, Mr. Gamble caused to this victim.” Sentencing Hr’g Tr. 7, Mar. 17, 2011. Counsel pointed out that many of the damages asserted were incurred before the photos of Vicky were found in Gamble’s possession, making it difficult to show how he could have [545]*545caused them, and that most of the rest were for future costs, which were speculative. Counsel for Gamble also read the phrase “any other losses suffered by the victim as a proximate result of the offense” in § 2259(b)(3)(F) as applying to all the previous subsections of the statute, meaning that all losses must be shown to be proximately caused by Gamble in order for restitution to be assessed against him.

The Government responded that while it is “very hard to allocate the harm” caused by those possessing images of Vicky, “[t]here is a total harm done, and every one of these people who view those images ought to bear part of that burden.” Hr’g Tr. 11-12. The Government admitted that the materials submitted could not present precisely how much damage Gamble caused, but posited that “[t]he question really is, what is the total damage, and what is a fair share for this gentleman to participate in.” Id. at 12-13. When questioned by the district court about how to read § 2259, the Government responded, “Literally construed and narrowly read, I think this Court is being told by Congress to order the entire amount [of restitution],” but that as a practical matter, courts around the country were choosing to arrive at that amount by apportioning it among multiple defendants. Id. at 14-15. The Government argued, however, that to read the statute as narrowly as counsel for Gamble wanted, “as a matter of fairness, ... doesn’t seem to comport with the broad purposes of this statute.” Id. at 22.

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Cite This Page — Counsel Stack

Bluebook (online)
709 F.3d 541, 2013 WL 692512, 2013 U.S. App. LEXIS 4008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shawn-crawford-ca6-2013.