United States v. Robert White , 667 F. App'x 893 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30172
Plaintiff - Appellee, D.C. No. 2:14-cr-00020-DLC-1
v.
MEMORANDUM*
ROBERT LEWIS WHITE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 15-30173
Plaintiff - Appellee, D.C. No. 2:14-cr-00021-DLC-1
v.
ROBERT LEWIS WHITE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted July 7, 2016**
Seattle, Washington
Before: KLEINFELD, McKEOWN, and M. SMITH, Circuit Judges.
Robert Lewis White pleaded guilty to distributing and receiving child
pornography and was ordered to pay restitution pursuant to 18 U.S.C. § 2259.1 We
have jurisdiction under 28 U.S.C. § 1291. “We review de novo the legality of a
restitution order and, if the order is within the statutory bounds, we review the
amount of restitution for abuse of discretion. We review for clear error factual
findings supporting an order of restitution.” United States v. Galan, 804 F.3d
1287, 1289 (9th Cir. 2015) (internal citations omitted).
White is required to pay restitution for “any costs incurred by the victim,”
including medical services relating to physical, psychiatric, or psychological care
and attorneys’ fees, 18 U.S.C. § 2259(b)(3), where those losses were proximately
caused by his offense. Paroline v. United States, 134 S. Ct. 1710, 1722 (2014).
The government must provide sufficient evidence for the court to estimate the full
amount of those losses with “‘some reasonable certainty.’” United States v.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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White was also convicted of possession of a firearm not registered in the
national firearms registration and transfer record.
2
Kennedy, 643 F.3d 1251, 1261 (9th Cir. 2011) (quoting United States v. Doe, 488
F.3d 1154, 1160 (9th Cir. 2007)). We reject White’s argument that because the
victim has not begun treatment, her projected future medical costs are too
speculative to substantiate a restitution award. We do not read § 2259 so narrowly:
“The language of the relevant statutes shows that Congress intended to allow
district courts to include future counseling expenses in the amount of restitution
under section 2259. Section 2259 is phrased in generous terms, in order to
compensate the victims of sexual abuse for the care required to address the long
term effects of their abuse.” United States v. Laney, 189 F.3d 954, 966 (9th Cir.
1999). Otherwise, “if Congress intended crime victims who required long-term
psychological or physical therapy to receive restitution only after they actually paid
their therapists, it created a strangely unwieldy procedure in section 3664, which
would require a victim to petition the court for an amended restitution order every
60 days for as long as the therapy lasted.” Id. at 967. The district court did not err
in determining that future medical costs can be estimated with reasonable certainty
prior to the commencement of treatment.
We also reject White’s challenge to the restitution award. The district
court’s passing reference to White’s economic circumstances was harmless. The
district court did not improperly take into consideration White’s economic
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circumstances in violation of 18 U.S.C. § 2259(b)(4)(B)(I) and § 3664(f)(1)(A), as
the record reflects that the court awarded restitution in accordance with the total
amount of the victim’s losses.
White also objects to the attorneys’ fees portion of the restitution award.
Because White did not object to the amount or calculation of the fee award before
the district court, we review the district court’s award of attorneys’ fees for plain
error. See, e.g., United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir.
2010). In light of the time and expense incurred by the victim’s attorney for
representation in this case, the district court did not err in awarding attorneys’ fees.
Although not detailed, the district court’s explanation of the basis for the fee award
was not plainly erroneous.
AFFIRMED.
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