NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-50024
Plaintiff-Appellee, D.C. No. 5:21-cr-00188-JWH-1
v. MEMORANDUM* STEVE JACKSON RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding
Argued and Submitted May 6, 2024 Pasadena, California
Before: FORREST and BUMATAY, Circuit Judges, and DONATO, District Judge.** Partial Dissent by Judge BUMATAY.
Appellant Steve Rodriguez, who is serving a life sentence for crimes of child
sex abuse, appeals a restitution order entered under the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018, 18 U.S.C. § 2259(b). The parties’
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. familiarity with the record is assumed, and we have jurisdiction under 28 U.S.C.
§ 1291. We vacate in part and remand for further proceedings.
As a threshold matter, the government contends that Rodriguez waived the
right to pursue this appeal in his plea agreement. We review this question de novo.
United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016).
The plea agreement contained a waiver of Rodriguez’s right to appeal the
amount and terms of any restitution order. Even so, “in order for that waiver to be
valid a defendant must be ‘given a reasonably accurate estimate of the amount of the
restitution order to which he is exposed’ at the time the defendant agrees to waive
the appeal.” Id. at 785 (quoting United States v. Tsosie, 639 F.3d 1213, 1217 (9th
Cir. 2011)). No such estimate was given to Rodriguez.
The government does not dispute this record but argues that the waiver should
be enforced because Rodriguez was advised that he faced a fine greater than the
restitution amount actually awarded. The cases relied upon by the government,
namely United States v. Alvarez, 835 F.3d 1180 (9th Cir. 2016), and United States
v. Crawford, 169 F.3d 590 (9th Cir. 1999), do not support that conclusion because
they do not involve a waiver of an appeal of a restitution order. Consequently,
Rodriguez may pursue this appeal.
The district court ordered Rodriguez to pay a total of $125,764.25 in
restitution under 18 U.S.C. § 2259(b)(2)(B) to the children he sexually abused, the
2 owner of the care facility where the abuse took place, and nine victims depicted in
child pornography photos and videos Rodriguez possessed. Rodriguez challenges
only the restitution awards to the facility owner and the child pornography victims.
With respect to the facility owner, the government concedes that she was not
entitled to mandatory restitution under 18 U.S.C. § 2259(b)(2) because she was not
a “victim” as defined in § 2259(c)(4). The government argues that the award
nevertheless should be affirmed because the district court could have awarded the
same restitution under 18 U.S.C. § 3663. The government never sought restitution
under § 3663 in the district court, however, and therefore the district court was not
given an opportunity to determine whether an award of restitution is appropriate
under this provision. We vacate the restitution awarded to the facility owner and
remand for the district court to decide whether restitution is warranted under § 3663.
With respect to the victims depicted in the child pornography in Rodriguez’s
possession, Rodriguez did not object to the district court’s awards during the
restitution proceedings. Consequently, we review these awards for plain error. See
United States v. Zhou, 838 F.3d 1007, 1010–12 (9th Cir. 2016).
The district court clearly erred by awarding restitution to these victims without
conducting any loss causation analysis. Restitution is “proper under § 2259 only to
the extent the defendant’s offense proximately caused a victim’s losses.” Paroline
v. United States, 572 U.S. 434, 448 (2014). “[T]he losses, including ongoing losses,
3 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.” United States v. Galan, 804 F.3d 1287, 1291 (9th Cir. 2015).
Congress amended § 2259 in the Amy, Vicky, and Andy Child Pornography
Victim Assistance Act of 2018, Pub. L. No. 115-299, 132 Stat. 4383, to provide that
the court “shall” first “determine the full amount of the victim’s losses,” 18 U.S.C.
§ 2259(b)(2)(A), which are defined as “costs incurred, or that are reasonably
projected to be incurred in the future, by the victim … as a proximate result of all
trafficking in child pornography offenses involving the same victim,” id.
§ 2259(c)(2). After making that determination, “the court shall order restitution in
an amount that reflects the defendant’s relative role in the causal process that
underlies the victim’s losses, but which is no less than $3,000.” Id. § 2259(b)(2)(B).
The government does not contend that the amendments abrogated the central holding
of Paroline, or our cases applying it.1
The record does not demonstrate that the district court conducted the required
analysis. The district court awarded $3,000 each to victims Violet, Maria, Sarah,
and Lily without evidence indicating that they sustained compensable “losses.” See
18 U.S.C. § 2259(c)(2). And it awarded $5,000 each to victims April, Mya, Pia, and
1 We note that other circuits continue to apply Paroline. See, e.g., United States v. West, 99 F.4th 775, 779, 781 (5th Cir. 2024); United States v. Smith, No. 22-3033, 2024 WL 618849, at *3 (2d Cir. Feb. 14, 2024).
4 PD11 without determining whether that amount approximated the losses caused by
Rodriguez. A restitution award that may exceed a victim’s actual losses “affect[s]
substantial rights and the fundamental fairness of the proceeding,” warranting
vacatur under plain error review. See United States v. Anderson, 741 F.3d 938, 954
(9th Cir. 2013) (citing cases).2
The district court did not plainly err by awarding $3,000 in restitution to
victim Jenny.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-50024
Plaintiff-Appellee, D.C. No. 5:21-cr-00188-JWH-1
v. MEMORANDUM* STEVE JACKSON RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding
Argued and Submitted May 6, 2024 Pasadena, California
Before: FORREST and BUMATAY, Circuit Judges, and DONATO, District Judge.** Partial Dissent by Judge BUMATAY.
Appellant Steve Rodriguez, who is serving a life sentence for crimes of child
sex abuse, appeals a restitution order entered under the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018, 18 U.S.C. § 2259(b). The parties’
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. familiarity with the record is assumed, and we have jurisdiction under 28 U.S.C.
§ 1291. We vacate in part and remand for further proceedings.
As a threshold matter, the government contends that Rodriguez waived the
right to pursue this appeal in his plea agreement. We review this question de novo.
United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016).
The plea agreement contained a waiver of Rodriguez’s right to appeal the
amount and terms of any restitution order. Even so, “in order for that waiver to be
valid a defendant must be ‘given a reasonably accurate estimate of the amount of the
restitution order to which he is exposed’ at the time the defendant agrees to waive
the appeal.” Id. at 785 (quoting United States v. Tsosie, 639 F.3d 1213, 1217 (9th
Cir. 2011)). No such estimate was given to Rodriguez.
The government does not dispute this record but argues that the waiver should
be enforced because Rodriguez was advised that he faced a fine greater than the
restitution amount actually awarded. The cases relied upon by the government,
namely United States v. Alvarez, 835 F.3d 1180 (9th Cir. 2016), and United States
v. Crawford, 169 F.3d 590 (9th Cir. 1999), do not support that conclusion because
they do not involve a waiver of an appeal of a restitution order. Consequently,
Rodriguez may pursue this appeal.
The district court ordered Rodriguez to pay a total of $125,764.25 in
restitution under 18 U.S.C. § 2259(b)(2)(B) to the children he sexually abused, the
2 owner of the care facility where the abuse took place, and nine victims depicted in
child pornography photos and videos Rodriguez possessed. Rodriguez challenges
only the restitution awards to the facility owner and the child pornography victims.
With respect to the facility owner, the government concedes that she was not
entitled to mandatory restitution under 18 U.S.C. § 2259(b)(2) because she was not
a “victim” as defined in § 2259(c)(4). The government argues that the award
nevertheless should be affirmed because the district court could have awarded the
same restitution under 18 U.S.C. § 3663. The government never sought restitution
under § 3663 in the district court, however, and therefore the district court was not
given an opportunity to determine whether an award of restitution is appropriate
under this provision. We vacate the restitution awarded to the facility owner and
remand for the district court to decide whether restitution is warranted under § 3663.
With respect to the victims depicted in the child pornography in Rodriguez’s
possession, Rodriguez did not object to the district court’s awards during the
restitution proceedings. Consequently, we review these awards for plain error. See
United States v. Zhou, 838 F.3d 1007, 1010–12 (9th Cir. 2016).
The district court clearly erred by awarding restitution to these victims without
conducting any loss causation analysis. Restitution is “proper under § 2259 only to
the extent the defendant’s offense proximately caused a victim’s losses.” Paroline
v. United States, 572 U.S. 434, 448 (2014). “[T]he losses, including ongoing losses,
3 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.” United States v. Galan, 804 F.3d 1287, 1291 (9th Cir. 2015).
Congress amended § 2259 in the Amy, Vicky, and Andy Child Pornography
Victim Assistance Act of 2018, Pub. L. No. 115-299, 132 Stat. 4383, to provide that
the court “shall” first “determine the full amount of the victim’s losses,” 18 U.S.C.
§ 2259(b)(2)(A), which are defined as “costs incurred, or that are reasonably
projected to be incurred in the future, by the victim … as a proximate result of all
trafficking in child pornography offenses involving the same victim,” id.
§ 2259(c)(2). After making that determination, “the court shall order restitution in
an amount that reflects the defendant’s relative role in the causal process that
underlies the victim’s losses, but which is no less than $3,000.” Id. § 2259(b)(2)(B).
The government does not contend that the amendments abrogated the central holding
of Paroline, or our cases applying it.1
The record does not demonstrate that the district court conducted the required
analysis. The district court awarded $3,000 each to victims Violet, Maria, Sarah,
and Lily without evidence indicating that they sustained compensable “losses.” See
18 U.S.C. § 2259(c)(2). And it awarded $5,000 each to victims April, Mya, Pia, and
1 We note that other circuits continue to apply Paroline. See, e.g., United States v. West, 99 F.4th 775, 779, 781 (5th Cir. 2024); United States v. Smith, No. 22-3033, 2024 WL 618849, at *3 (2d Cir. Feb. 14, 2024).
4 PD11 without determining whether that amount approximated the losses caused by
Rodriguez. A restitution award that may exceed a victim’s actual losses “affect[s]
substantial rights and the fundamental fairness of the proceeding,” warranting
vacatur under plain error review. See United States v. Anderson, 741 F.3d 938, 954
(9th Cir. 2013) (citing cases).2
The district court did not plainly err by awarding $3,000 in restitution to
victim Jenny. The record supports a finding that she suffered compensable losses
caused, in part, by child pornography trafficking, in which Rodriguez played a causal
role. See United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019) (on plain
error review, appellant must show some “probability that, but for the error, the
outcome of the proceeding would have been different”).
We vacate the restitution awards as to victims April, Mya, Pia, PD11, Violet,
Maria, Sarah, and Lily, and remand for further proceedings in the district court.
VACATED IN PART AND REMANDED.
2 The dissent argues that we should presume the district court properly determined loss and proximate causation based on the government’s submissions and the Presentence Report. We disagree. The government did not submit proof of loss for Violet, Maria, Sarah, or Lily, and the plain language of the statute does not permit them to recover $3,000 without it. Nor did the government attempt to disaggregate the losses claimed by April, Mya, Pia, and PD11, or estimate those attributable to Rodriguez. We cannot put any weight on the Presentence Report, which simply noted that compensable losses for restitution had not yet been identified.
5 FILED JUL 9 2024 United States v. Steve Rodriguez, No. 23-50024 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I agree with the bulk of the majority decision. But I disagree with vacating
the restitution award to the eight victims depicted in the pornography possessed by
Steve Rodriguez when they were children.
At the restitution hearing, Rodriguez did not contest that these victims were
victims of child pornography or contest the restitution amounts they were entitled
to. So the plain-error standard applies. See United States v. Yijun Zhou, 838 F.3d
1007, 1012 (9th Cir. 2016) (applying plain error to order of restitution). Any error
here is neither plain nor affects substantial rights.
First, the $3,000 awards to victims Violet, Maria, Sarah, Lily, and Jenny were
mandated by Congress. By law, the district court was required to order restitution
to each victim for an amount “which is not less than $3,000.” 18 U.S.C.
§ 2259(b)(2)(B). Rodriguez does not challenge that these five individuals were
victims or that they sustained a “loss” caused by him before the district court. Given
these concessions, the district court couldn’t have ordered an award below this
statutory floor. So there can be no effect on substantial rights.
And the majority is wrong to cite United States v. Galan, 804 F.3d 1287, 1291
(9th Cir. 2015), to say that any error was plain. In that case, the district court
expressly refused to limit restitution to the amount caused by the defendant. Id. at
1291. It says nothing about whether a “loss causation analysis” must be expressly conducted on the record when the loss amounts are conceded. What’s more, that
case didn’t deal with the mandatory-minimum restitution provision under
§ 2259(b)(2)(B).
Neither were the $5,000 awards to victims April, Mya, Pia, and PD11 plain
error. In its filings before the district court, the government told the court that each
of these victims “adequately demonstrated with their filings that defendant’s
possession and viewing material depicting them being brutally raped has caused
them approximately $5,000 in financial harm.” The government then cited the
Paroline v. United States, 572 U.S. 434, 457 (2014), standard to the court. The same
goes for the Presentence Report, which also noted the governing standard even
though restitution amounts had not yet been calculated. And the victims submitted
dozens of pages of documentation. Rodriguez did not dispute any of this. And at
the start of the restitution hearing, it was clear that the district court was familiar
with these filings. It thus was a mistake to conclude that this was error, let alone
plain error. District courts are presumed to know the law and to understand their
sentencing obligations. Cf. United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008)
(en banc) (a “district court need not tick off each of the § 3553(a) factors to show
that it has considered them”). I see no reason to depart from this presumption here.
For these reasons, I respectfully dissent.