United States v. Aumais

10-3160-cr
United States v. Aumais
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Argued: June 15, 2011 Decided: September 8, 2011) 8
9
Docket No. 10-3160-cr 10
11
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13
UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
-v.- 18
19
GERALD AUMAIS, 20
21
Defendant-Appellant. 22
23
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25
Before: JACOBS, Chief Judge, WINTER and 26
McLAUGHLIN, Circuit Judges. 27
28
Defendant-Appellant Gerald Aumais appeals from an 29
Amended Judgment of Conviction entered on August 3, 2010 in 30
the United States District Court for the Northern District 31
of New York (Sharpe, J.). Aumais pleaded guilty to 32
transporting and possessing child pornography in violation 33
of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district 34
court sentenced Aumais to 121 months’ imprisonment and 35

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2
ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 1
restitution to finance future counseling costs of “Amy,” one 2
of the victims depicted in the images and videos. On 3
appeal, Aumais challenges the restitution order on the 4
ground that his possession was not a proximate cause of her 5
loss. Aumais also argues that the district court committed 6
procedural and substantive error in sentencing him to 121 7
months’ imprisonment. We conclude that: based on the facts 8
in this case, Aumais’ possession of Amy’s images was not a 9
substantial factor in causing her loss; and that the 10
district court committed no procedural or substantive error 11
in imposing the sentence of imprisonment. Affirmed in part 12
and reversed in part. 13
GENE V. PRIMOMO, Assistant Federal Public 14
Defender (Molly Corbett, on the brief), for 15
Lisa Peebles, Federal Public Defender, Albany, 16
New York, for Defendant-Appellant. 17
18
PAUL D. SILVER, Assistant United States 19
Attorney (Elizabeth Horsman, Assistant United 20
States Attorney, on the brief), for Richard S. 21
Hartunian, United States Attorney for the 22
Northern District of New York, for Appellee. 23
DENNIS JACOBS, Chief Judge: 24
Gerald Aumais (“Aumais”) appeals from an Amended 25
Judgment of Conviction entered on August 3, 2010 in the 26
United States District Court for the Northern District of 27

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3
New York (Sharpe, J.). Aumais pleaded guilty to 1
transporting and possessing child pornography in violation 2
of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district 3
court sentenced Aumais to 121 months’ imprisonment and 4
ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in 5
restitution to finance future counseling costs of “Amy” (a 6
pseudonym), one of the victims depicted in the images and 7
videos. Aumais challenges the restitution order on the 8
ground that his possession was not a proximate cause of 9
Amy’s loss. Aumais also argues that the district court 10
committed procedural and substantive error in sentencing him 11
to 121 months’ imprisonment. We conclude that: based on the 12
facts in this case, Aumais’ possession of Amy’s images was 13
not a substantial factor in causing her loss; and that the 14
district court committed no procedural or substantive error 15
in imposing the sentence of imprisonment. Affirmed in part 16
and reversed in part. 17
18
Background 19
Aumais attempted to enter the United States from Canada 20
at the Fort Covington, New York Port of Entry in November 21
2008, where he was referred for secondary inspection. A 22

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1 Aumais sought a two-level reduction, pursuant to
U.S.S.G. § 2G2.2(b)(1), on the ground that his conduct was
limited to the receipt or solicitation of child pornography.
The PSR had scored an additional two levels based upon a
statement Aumais allegedly made at the time of his arrest
that he traded in child pornography. The district court
held a brief evidentiary hearing to resolve the factual
dispute. The Government called Immigration and Customs
Enforcement Officer Tim Losito, who testified that, at the
time of his arrest, Aumais stated that he traded in child
pornography. Based on this testimony and on the volume of
pornographic images in Aumais’ possession while he was
4
search of his car revealed a cache of DVDs and other 1
electronic devices that stored thousands of still images of 2
child pornography and over one hundred such videos. Aumais 3
told border agents that he owned all of the electronic media 4
located in the car and admitted to downloading the child 5
pornography from a peer-to-peer network. 6
He was charged with: (1) transporting child pornography 7
in foreign commerce, in violation of 18 U.S.C. 8
§ 2252A(a)(1); and (2) possessing child pornography that had 9
been transported in foreign commerce, in violation of 18 10
U.S.C. § 2252A(a)(5)(B). On February 4, 2009, Aumais 11
entered a plea of guilty, without a written plea agreement, 12
to both counts of the indictment. 13
A. 14
Aumais’ Presentence Investigation Report (“PSR”) 15
reflected a base offense level of 22. 1 The offense level 16

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ostensibly on a one-week business trip, the district court
found that Aumais had traded in some materials and denied
Aumais’ request for a two-point reduction.
5
was increased two levels because some of the images were of 1
pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2); four 2
levels because the material contained sadistic images, see 3
U.S.S.G. § 2G2.2(b)(4); two levels because the offense 4
involved use of a computer, see U.S.S.G. § 2G2.2(b)(6); and 5
five levels based upon the number of images in Aumais’ 6
possession, see U.S.S.G. § 2G2.2(b)(7)(D). Aumais’ offense 7
level was reduced three levels for his early acceptance of 8
responsibility, see U.S.S.G. § 3E1.1(a)-(b). With a total 9
offense level of thirty-two and a Criminal History Category 10
of I, the recommended Guidelines range was 121 to 151 11
months’ imprisonment. 12
The PSR identified a victim known as “Amy,” who sought 13
$3.3 million in restitution pursuant to 18 U.S.C. § 2259. 14
Her Victim Impact Statement explained that she was unable to 15
forget the abuse she suffered at the hands of the uncle (who 16
took the pictures) because the “disgusting images of what he 17
did to [her] are still out there on the internet.” She said 18
she lives in fear that she will be recognized in the 19
pictures that remain on the internet and will be “humiliated 20

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6
all over again.” 1
The district court found that Aumais was a pedophile, 2
that he presented a danger to children (although the court 3
credited a polygraph result indicating that he had never 4
gone beyond viewing images), and that he was responsible for 5
harm caused to the children in the images. The district 6
court found that a sentence of 121-months’ imprisonment (the 7
low-end of the Guidelines range) was appropriate in view of 8
all the 18 U.S.C. § 3553(a) factors. Accordingly, the 9
district court imposed a sentence of 121 months’ 10
imprisonment on Count 1 and 120-months’ imprisonment on 11
Count 2, to run concurrently, and a five-year term of 12
supervised release. The district court bifurcated the issue 13
of restitution and referred the matter to a magistrate judge 14
for consideration. 15
B. 16
On December 22, 2009, Magistrate Judge David Homer 17
conducted an evidentiary hearing on restitution. The only 18
witness to testify, Government witness Dr. Joyanna Silberg, 19
had evaluated Amy at the request of Amy’s attorney, James 20
Marsh, on June 11-12, 2008, July 29, 2008, and November 10, 21
2008. Dr. Silberg recounted that Amy had been sexually 22

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7
abused by her uncle between the ages of 4 and about 7 or 8, 1
that Amy underwent treatment after suffering the abuse, and 2
that the treatment allowed Amy to “function[] pretty well 3
normally” until she learned that her image was being traded 4
on the internet, after which she experienced a fear “of 5
being at parties, fear of being in public gatherings,” and 6
had difficulty coping “with her life because of her sense of 7
pervasive helplessness” about the fact that people were 8
viewing her image. Government Appendix 30-31. 9
Amy discovered that her images were on the internet 10
when she received victim notifications from The National 11
Center for Missing and Exploited Children (“NCMEC”), which 12
compares images of child pornography, identifies those 13
depicted within, and then notifies the victim every time 14
someone is arrested who is found to possess that victim’s 15
image. Knowledge that her images were still being viewed 16
caused emotional and psychological problems: she bit her 17
nails to the point of bleeding, took to alcohol, and could 18
not finish college. Dr. Silberg concluded that Amy was a 19
direct victim of Aumais’ conduct and that “Mr. Aumais 20
represent[ed] one component of the damages, because Mr. 21
Aumais is one of the individuals arrested for having looked 22

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8
at her picture and possessing it.” See Government Appendix 1
41-43. 2
Finally, although Dr. Silberg’s contact with Amy was 3
evaluative rather than therapeutic, she recommended that Amy 4
receive therapy once a week from a professional trained in 5
the effects of sexual abuse and trauma on people in Amy’s 6
age group. Dr. Silberg opined that Amy might need three 7
courses of inpatient treatment throughout her life to deal 8
with her alcoholism. 9
On January 13, 2010, the magistrate judge issued a 10
Report and Recommendation that Aumais should be ordered to 11
pay Amy $48,483 in restitution. United States v. Aumais, 12
No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13, 13
2010) (“Aumais I”). The court determined that in order to 14
recover restitution, Amy must show that Aumais’ possession 15
of her images proximately caused her harm. Id. at *2. If 16
so, Amy could be entitled to payments for future medical 17
costs “if those expenses can be reasonably estimated.” Id. 18
at *3 (citing United States v. Pearson, 570 F.3d 480, 486-87 19
(2d Cir. 2009) (per curiam)). The magistrate judge 20
observed, however, that the issue of “whether a defendant 21
convicted only as a consumer of child pornography may be 22

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9
liable for restitution under § 2259 to a child victim” 1
remained “unaddressed by the Second Circuit.” Id. 2
According to the Report and Recommendation, “[t]here is 3
no question that consumers, such as Aumais, contribute to 4
the exploitation of child victims, such as Amy, depicted in 5
the child pornography they possess.” Id. at *4. The court 6
recognized that “the uncle’s horrific acts of sexual abuse, 7
production of the images, and distribution of those images 8
to others unquestionably constituted the principal cause of 9
the losses identified by Amy.” Id. at *5. At the same time 10
(it was concluded), “if the harm caused by Aumais’ 11
possession of Amy’s images caused substantial harm to Amy, 12
proximate cause has been demonstrated even if the conduct of 13
others similar to that of Aumais caused equal or greater 14
harm.” Id. 15
Based on Amy’s Victim Impact Statement and Dr. 16
Silberg’s testimony, the magistrate judge found that, 17
although Amy had neither contact with Aumais nor knowledge 18
of his existence, his possession of her images exacerbated 19
the harm (originally caused by her uncle) by creating a 20
market for distribution, and by inflicting the humiliation 21
of knowing that the images are out there being exploited by 22

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10
a group of consumers, of whom Aumais was one. Id. at *6. 1
Although Aumais may be among hundreds or thousands of such 2
others, it was found that Amy’s harm was not thereby 3
obviated or diminished; rather, “it exacerbate[d] the harm 4
by confirming how expansive has become the number of 5
individuals exploiting Amy’s images.” Id. 6
The findings as to damages are thorough and 7
discriminating, as follows. Where “a party is responsible 8
for exacerbating a pre-existing condition, damages are 9
generally limited to that attributable to the exacerbation 10
and not the original injury.” Id. at *7. The Government 11
failed to prove by a preponderance of evidence that Aumais 12
proximately caused harm that resulted in Amy’s difficulties 13
maintaining employment. Id. But the Government did prove 14
by a preponderance of evidence that Aumais caused the need 15
for weekly counseling sessions in the next five years and 16
monthly counseling sessions for five years thereafter. Id. 17
at *8-9. Discounting future counseling costs to present 18
value, the magistrate judge found that the Government proved 19
by a preponderance of evidence that Amy is entitled to 20
$48,483. Id. at *9. 21
As to joint and several liability, the magistrate judge 22

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11
found that Aumais should be liable for the full amount and 1
that it was “a matter for administration by the government” 2
to prevent excess recovery. Id. 3
The district court adopted Magistrate Judge Homer’s 4
Report and Recommendation, and entered judgment on August 3, 5
2010. United States v. Aumais, No. 08-CR-711, 2010 WL 6
3034730 (N.D.N.Y. Aug. 3, 2010) (“Aumais II”). 7
8
Discussion 9
“We review an order of restitution ‘deferentially, and 10
we will reverse only for abuse of discretion. To identify 11
such abuse, we must conclude that a challenged ruling rests 12
on an error of law, a clearly erroneous finding of fact, or 13
otherwise cannot be located within the range of permissible 14
decisions.’” Pearson, 570 F.3d at 486 (quoting United 15
States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)). 16
We review a district court’s sentencing decision for 17
reasonableness. See United States v. Booker, 543 U.S. 220, 18
260-62 (2005). We review the sentence for substantive 19
reasonableness under a “deferential abuse-of-discretion 20
standard.” United States v. Cavera, 550 F.3d 180, 189 (2d 21
Cir. 2008) (en banc). The Court “will not substitute [its] 22

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2 In United States v. Pearson, we considered whether a
restitution order pursuant to 18 U.S.C. § 2259 may include
an amount for estimated future medical expenses; but the
defendant had produced child pornography and had had direct
contact with the two child victims. 570 F.3d at 482, 486-
87.
12
own judgment for the district court’s”; rather, a district 1
court’s sentence may be set aside “only in exceptional cases 2
where [its] decision cannot be located within the range of 3
permissible decisions.” Id. (internal quotation marks 4
omitted). 5
6
I. 7
As Magistrate Judge Homer observed, this Circuit has 8
yet to address the issue of “whether a defendant convicted 9
only as a consumer of child pornography may be liable for 10
restitution under [18 U.S.C.] § 2259 to a child victim.” 2
11
Aumais I, 2010 WL 3033821, at *3. 12
Section 2259 mandates a district court to order a 13
defendant to pay a “victim,” defined as an “individual 14
harmed as a result of a commission of a crime under this 15
chapter,” 18 U.S.C. § 2259(c), “the full amount of the 16
victim’s losses,” id. § 2259(b)(1). The victim’s losses 17
include: 18
any costs incurred by the victim for-- 19

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13
(A) medical services relating to physical, 1
psychiatric, or psychological care; 2
3
(B) physical and occupational therapy or 4
rehabilitation; 5
6
(C) necessary transportation, temporary 7
housing, and child care expenses; 8
9
(D) lost income; 10
11
(E) attorneys’ fees, as well as other costs 12
incurred; and 13
14
(F) any other losses suffered by the victim as 15
a proximate result of the offense. 16
17
Id. § 2259(b)(3)(A)-(F). “An order of restitution under 18
[§ 2259] shall be issued and enforced in accordance with 19
section 3664 in the same manner as an order under section 20
3663A.” Id. § 2259(b)(2). Under 18 U.S.C. § 3664(e), 21
“[t]he burden of demonstrating the amount of the loss 22
sustained by a victim as a result of the offense shall be on 23
. . . the Government.” So it was for the Government to 24
establish that Amy is a victim who was harmed as a result of 25
Aumais’ possession of her images. 26
A. 27
The United States Supreme Court has recognized that the 28
distribution of child pornography is “intrinsically related 29
to the sexual abuse of children” because, inter alia, “the 30
materials produced are a permanent record of the children’s 31

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14
participation and the harm to the child is exacerbated by 1
their circulation.” New York v. Ferber, 458 U.S. 747, 759 2
(1982); see also United States v. McDaniel, 631 F.3d 1204, 3
1208 (11th Cir. 2011). “Because the child’s actions are 4
reduced to a recording, the pornography may haunt [the 5
child] in future years, long after the original misdeed took 6
place.” Ferber, 458 U.S. at 759 n.10 (internal quotation 7
marks omitted). 8
We conclude that Amy is a victim as defined by 9
§ 2259(c). 10
B. 11
A circuit split has opened as to whether the Government 12
must show that a victim’s losses (identified in 18 U.S.C. 13
§ 2259(b)(3)(A)-(F)) were proximately caused by the 14
defendant’s actions, or whether it is enough to show 15
causation more generally. And within those circuits holding 16
that a showing of proximate cause is required, some rely on 17
the text of the statute and others on general rules of 18
criminal and tort law. 19
Of the circuits that have reached the causation issue, 20
most have held that the text of § 2259 requires a showing of 21
proximate cause. See McDaniel, 631 F.3d at 1209; United 22

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15
States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999); United 1
States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). These 2
circuits have read the last phrase of § 2259(b)(3)(F) (see 3
supra at 13)--“suffered by the victim as a proximate result 4
of the offense”--to apply to all the types of loss in 5
§ 2259(b)(3). As the court in McDaniel observed: 6
“When several words are followed by a clause 7
which is applicable as much to the first and other 8
words as to the last, the natural construction of 9
the language demands that the clause be read as 10
applicable to all.” Porto Rico Ry., Light & Power 11
Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase 12
“as a proximate result of the offense” is equally 13
applicable to medical costs, lost income, and 14
attorneys’ fees as it is to “any other losses.” 15
Because the language of the statute is plain, our 16
inquiry ends here. 17
18
631 F.3d at 1209 (internal citation omitted). The D.C. 19
Circuit, likewise holding that § 2259 requires a finding of 20
proximate cause, based its ruling on “traditional principles 21
of tort and criminal law and on § 2259(c)’s definition of 22
‘victim’ as an individual harmed ‘as a result’ of the 23
defendant’s offense.” United States v. Monzel, 641 F.3d 24
528, 535 (D.C. Cir. 2011). After reciting the “bedrock rule 25
of both tort and criminal law that a defendant is only 26
liable for harms he proximately caused,” the court concluded 27
that “nothing in the text or structure of § 2259 leads us to 28

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16
conclude that Congress intended to negate the ordinary 1
requirement of proximate cause.” Id. at 535-36 (footnote 2
omitted). 3
The only circuit to hold that a finding of proximate 4
cause is not required, the Fifth Circuit, read the phrase 5
“as a proximate result of the offense” in § 2259(b)(3)(F) to 6
apply only to that “catchall” provision, as opposed to all 7
of the loss provisions set forth in § 2259(b)(3): 8
The structure and language of § 2259(b)(3) 9
impose a proximate causation requirement only on 10
miscellaneous “other losses” for which a victim 11
seeks restitution. As a general proposition, it 12
makes sense that Congress would impose an 13
additional restriction on the catchall category of 14
“other losses” that does not apply to the defined 15
categories. By construction, Congress knew the 16
kinds of expenses necessary for restitution under 17
subsections A through E; equally definitionally, 18
it could not anticipate what victims would propose 19
under the open-ended subsection F. 20
In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). The 21
Fifth Circuit also relied on the manifestation of a 22
“congressional purpose to award broad restitution” to 23
justify its limitation of proximate cause only to the loss 24
identified in subsection F. Id. at 199. 25
We agree with the majority of circuits and hold that 26
under § 2259, a victim’s losses must be proximately caused 27
by the defendant’s offense. We endorse the D.C. Circuit’s 28

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17
reasoning in Monzel: proximate cause is a deeply rooted 1
principle in both tort and criminal law that Congress did 2
not abrogate when it drafted § 2259. See Monzel, 641 F.3d 3
at 535-36; United States v. U.S. Gypsum Co., 438 U.S. 422, 4
437 (1978) (“Congress [is] presumed to have legislated 5
against the background of our traditional legal concepts 6
which render [proximate cause] a critical factor, and 7
absence of contrary direction” here “[is] taken as 8
satisfaction [of] widely accepted definitions, not as a 9
departure from them.” (quoting Morissette v. United States, 10
342 U.S. 246, 263 (1952)) (internal quotation marks 11
omitted)); see also Hemi Group, LLC v. City of New York, --- 12
U.S. ---, 130 S. Ct. 983, 989 (2010) (“[P]roximate cause 13
thus requires ‘some direct relation between the injury 14
asserted and the injurious conduct alleged.’” (quoting 15
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 16
(1992))). The text of § 2259 cross-references the Victim 17
and Witness Protection Act of 1982, 18 U.S.C. §§ 1512–1515, 18
3663–3664, and the Mandatory Victims Restitution Act of 1996 19
(“MVRA”), 18 U.S.C. §§ 3663A, 3613A, both of which define 20
“victim” as “a person directly and proximately harmed as a 21
result of the commission of an offense for which restitution 22

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18
may be ordered,” §§ 3663(a)(2), 3663A(a)(2). 1
“Proximate cause” labels “generically the judicial 2
tools used to limit a person’s responsibility for the 3
consequences of that person’s own acts. At bottom, the 4
notion of proximate cause reflects ‘ideas of what justice 5
demands, or of what is administratively possible and 6
convenient.’” Holmes, 503 U.S. at 268 (quoting W. Keeton, 7
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of 8
Torts § 41, at 264 (5th ed. 1984)). Proximate cause demands 9
“some direct relation between the injury asserted and the 10
injurious conduct alleged.” Id. 11
The magistrate judge based his finding of proximate 12
cause on the following facts, taken from Amy’s Victim Impact 13
Statement and Dr. Silberg’s testimony: Amy “suffered 14
understandable trauma from the abuse of her uncle . . . [and 15
t]he fact that the images of that abuse exist and remain in 16
circulation exacerbates the harm”; the viewers of Amy’s 17
images contribute to the “humiliation and degradation” that 18
Amy suffers and “constitute an independent component of harm 19
which exacerbates the trauma initiated by the uncle and 20
generates a need for continuing therapy”; Amy’s abuse was 21
memorialized in pictures that continue to be circulated, so 22

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19
that she “can never regard [her] victimization as terminated 1
or as a past event to which [she] must adjust”; and Aumais’ 2
viewing of Amy’s images “leaves Amy and similar victims with 3
feelings that they will never be safe, of helplessness, and 4
of constant fear that they will be recognized from those 5
images by friends and strangers.” Aumais I, 2010 WL 6
3033821, at *6. Moreover, the magistrate judge found that 7
“even though there may be hundreds or thousands of others 8
who, like Aumais, have possessed and used Amy’s images and 9
thereby contributed to her harm, Aumais’ conduct remains a 10
substantial cause of that harm” because it “exacerbates the 11
harm by confirming how expansive has become the number of 12
individuals exploiting Amy’s images.” Id. 13
We review a district court’s findings of fact for clear 14
error, but we review de novo a “district court’s application 15
of th[e] facts to draw conclusions of law, including a 16
finding of liability.” Travellers Int’l, A.G. v. Trans 17
World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994). So 18
called mixed questions of law and fact are also reviewed de 19
novo. Id. While the magistrate judge’s findings of fact 20
are supported by evidence, we disagree that those facts 21
establish a causal connection between Aumais’ possession of 22

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20
Amy’s images and Amy’s losses. 1
The magistrate judge found that “Amy had no direct 2
contact with Aumais nor even knew of his existence.” Aumais 3
I, 2010 WL 3033821, at *6. Amy’s Victim Impact Statement 4
makes no mention of Aumais (or any other possessor of her 5
images for that matter). Moreover, Dr. Silberg’s evaluation 6
of Amy, upon which the doctor’s testimony was based, took 7
place on June 11-12, 2008, July 29, 2008, and November 10, 8
2008, whereas Aumais was not arrested at the border until 9
November 16, 2008. While Dr. Silberg may describe generally 10
what Amy suffers from knowing that people possess her 11
images, Dr. Silberg cannot speak to the impact on Amy caused 12
by this defendant. As the Ninth Circuit held in rejecting 13
another of Amy’s claims: 14
[T]he government’s evidence showed only that [the 15
defendant] participated in the audience of persons 16
who viewed the images of Amy . . . . While this 17
may be sufficient to establish that [the 18
defendant’s] actions were one cause of the 19
generalized harm Amy . . . suffered due to the 20
circulation of [her] images on the internet, it is 21
not sufficient to show that they were a proximate 22
cause of any particular losses. 23
United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 24
2011). Here, in the absence of evidence linking Aumais’ 25
possession to any loss suffered by Amy, we cannot agree with 26

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3 We note one additional issue (on top of the issues
discussed in this section). In Aumais II, 2010 WL 3034730,
21
the magistrate judge’s conclusion that “Aumais’ conduct 1
remains a substantial cause of [Amy’s] harm.” Aumais I, 2
2010 WL 3033821, at *6. 3
This opinion does not categorically foreclose payment 4
of restitution to victims of child pornography from a 5
defendant who possesses their pornographic images. We have 6
no basis for rejecting Dr. Silberg’s findings that Amy has 7
suffered greatly and will require counseling well into the 8
future. But where the Victim Impact Statement and the 9
psychological evaluation were drafted before the defendant 10
was even arrested--or might as well have been--we hold as a 11
matter of law that the victim’s loss was not proximately 12
caused by a defendant’s possession of the victim’s image. 13
C. 14
A proximate cause of injury can be expected to lend 15
itself more easily to assessment and allocation than a cause 16
that is generalized or inchoate. Our conclusion--that 17
Aumais’ conduct was not a proximate cause of Amy’s injury-- 18
is thus confirmed by the baffling and intractable issue that 19
this case would otherwise present in terms of damages and 20
joint and several liability. 3
21

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at *1, the district court adopted the magistrate judge’s
Report and Recommendation and ordered that an Amended
Judgment be issued. However, in the Amended Judgment, the
district court did not check the box indicating that Aumais’
liability was joint and several with other defendants. See
Government Appendix 64-65. While it is settled that “where
there is a direct conflict between an unambiguous oral
pronouncement of sentence and the written judgment . . . the
oral pronouncement, as correctly reported, must control,”
United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974)
(internal quotation marks omitted), it is unclear whether
this is true with respect to restitution orders.
22
With respect to the amount of restitution, the district 1
court ordered Aumais to pay $48,483 to cover Amy’s future 2
counseling costs. Aumais I, 2010 WL 3033821, at *8-9. But, 3
as the magistrate judge determined, “[t]he harm from the 4
uncle’s abuse and that from possession of the images of the 5
abuse by others are closely related for purposes of 6
counseling and cannot be separate[d] to allocate costs 7
between them as it appears that Amy will require counseling 8
for both.” Id. at *8. If Amy’s future counseling costs are 9
thus partly caused by her uncle’s abuse, then Aumais cannot 10
be responsible for all of those losses--a problem under the 11
wording of § 2259, which mandates that Aumais make 12
restitution for the full amount of Amy’s losses caused as a 13
result of Aumais’ possession. This difficulty is 14
illustrated by the disparate amounts of restitution ordered 15
throughout the country, ranging from $3,000, see United 16

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4 In Nucci, we observed
Section 3664(f)(1)(A) requires the district court
to order restitution in the full amount of the
victim’s losses and does not mention what the
order should provide when multiple defendants are
responsible for the same loss. Section 3664(h)
provides that, where there are multiple
defendants, the district court may order each
defendant to pay the full amount or order that
23
States v. Mather, 1:09-CR-412, 2010 WL 5173029, at *5-6 1
(E.D. Cal. Dec. 13, 2010), to $3,680,153, see United States 2
v. Staples, 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla. 3
Sept. 2, 2009). 4
A restitution award to Amy in this case would raise 5
issues as to joint and several liability. As of the date of 6
the restitution hearing, Amy had sought restitution in over 7
250 cases around the country. Aumais I, 2010 WL 3033821, at 8
*5. In one such case, United States v. Faxon, 689 F. Supp. 9
2d 1344, 1346, 1353 (S.D. Fla. 2010), Amy’s lawyer estimated 10
that as of January 2010, Amy had received approximately 11
$170,000 from restitution orders and settlements. 12
In United States v. Nucci, 364 F.3d 419 (2d Cir. 2004), 13
we held that a victim may not recover more than his or her 14
actual loss. There, we observed that “the relevant sections 15
of the MVRA,” id. at 423, do not in themselves prevent 16
double-recovery in the criminal context. 4 However, 17

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liability be apportioned to reflect each
defendant’s contribution to the loss. Section
3664(j)(2) does limit restitution that would
result in an overpayment to the victim, but only
where compensatory damages are later recovered by
the victim in a “civil” proceeding.
Id. (footnote omitted).
24
recognizing that “[a]t common law, joint and several 1
liability does not permit double recovery,” we declined to 2
“read[] the statute to provide recovery in excess of the 3
amount of the loss,” and accordingly applied the common law 4
rule. Id. 5
Section 2259(b)(4)(B) provides that “[a] court may not 6
decline to issue an order under this section because of--(i) 7
the economic circumstances of the defendant; or (ii) the 8
fact that a victim has, or is entitled to, receive 9
compensation for his or her injuries from the proceeds of 10
insurance or any other source.” Our holding in Nucci 11
indicates that because Amy may already have been fully 12
compensated by others for the loss found in this case, there 13
would be “no legal basis to permit an award that allows a 14
victim to recover more than his due.” Nucci, 364 F.3d at 15
424. It is in any event likely that the collection of a 16
restitution award would need to be carefully monitored to 17
ensure that total payments by all defendants did not exceed 18

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5 In fact, two other circuits have observed, in
unpublished opinions, that joint and several liability is
not permissible under § 3664(h) regarding defendants in
separate cases. See Monzel, 641 F.3d at 539 (citing United
States v. McGlown, 380 F. App’x 487, 490-91 (6th Cir. 2010);
United States v. Channita, 9 F. App’x 274, 274-75 (4th Cir.
25
what Amy has been awarded for future counseling costs. The 1
need for such monitoring would pose significant practical 2
difficulties. As an initial matter, it is not entirely 3
clear what government body, if any, is responsible for 4
tracking payments that may involve defendants in numerous 5
jurisdictions across the country. In addition, determining 6
what amount Amy has received would entail collecting data 7
about hundreds of cases, ascertaining what money has 8
actually been paid, and determining what losses that money 9
was intended to cover. 10
Finally, as discussed above, § 2259(b)(2)--dealing with 11
the enforcement of the restitution order--cross references 12
§ 3664. Section 3664(h) implies that joint and several 13
liability may be imposed only when a single district judge 14
is dealing with multiple defendants in a single case (or 15
indictment); so it would seem that the law does not 16
contemplate apportionment of liability among defendants in 17
different cases, before different judges, in different 18
jurisdictions around the country. 5
19

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2001)).
26
1
II. 2
Aumais argues that the district court committed 3
procedural and substantive errors in sentencing Aumais to 4
121 months’ imprisonment--the bottom of the Guidelines 5
range. As to procedural reasonableness, Aumais contends 6
that the district court treated the Sentencing Guidelines as 7
mandatory and presumptively reasonable. This argument is 8
refuted by the record. The district court conducted an 9
“individualized assessment” of the sentence warranted by 10
§ 3553(a) “based on the facts presented,” Gall v. United 11
States, 552 U.S. 38, 50 (2007), and concluded that “nothing 12
below the minimum of the advisory guideline [and] nothing 13
above the minimum of the advisory guideline range is 14
necessary in light of the various factors that are at play 15
here.” Government Appendix at 22-23. 16
As to substantive reasonableness, Aumais principally 17
relies on our recent decision in United States v. Dorvee, 18
616 F.3d 174 (2d Cir. 2010), to support his argument that 19
the sentence was greater than necessary to serve the 20
purposes of sentencing. This argument, too, is without 21

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27
merit. 1
Dorvee observed that U.S.S.G. § 2G2.2, the Guideline at 2
issue here, can, “unless applied with great care, . . . lead 3
to unreasonable sentences that are inconsistent with what 4
§ 3553 requires” because the enhancements in that Guideline 5
“routinely result in Guidelines projections near or 6
exceeding the statutory maximum, even in run-of-the-mill 7
cases.” 616 F.3d at 184, 186. The various child 8
pornography enhancements applied in Dorvee resulted in a 9
Guidelines range that, at the low end, was twenty-two months 10
longer than the statutory maximum. Id. at 180. The 11
Guidelines range calculated in this case (121-151 months) 12
was well short of the statutory maximum, which was thirty 13
years (had the district court chosen to impose consecutive 14
sentences). Moreover, the district court found that 121 15
months imprisonment was “sufficient, but not greater than 16
necessary” to comply with the purposes of § 3553(a), id. at 17
182 (quoting United States v. Samas, 561 F.3d 108, 110 (2d 18
Cir. 2009), given the violent nature of the images, the 19
number of them, and other considerations. The sentence is 20
substantively reasonable. 21
22

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28
CONCLUSION 1
For the foregoing reasons, the amended judgment of 2
conviction is affirmed in part and reversed in part. 3

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