United States v. Keith Baroun , 457 F. App'x 628 ( 2011 )

**
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30090
Plaintiff - Appellee, D.C. No. CR-09-64-BLG-RFC
v.
MEMORANDUM*
KEITH BAROUN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted October 14, 2011
Portland, Oregon
Before: EBEL, BERZON, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
Defendant-Appellant Keith Baroun (Baroun) pled guilty to receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced
Baroun to 165 months’ imprisonment and ordered him to pay $3,000 in restitution
to “Vicky,” one of the victims depicted in the pornography he received. Baroun
appeals, arguing that the district court abused its discretion by imposing a
substantively unreasonable sentence, in light of his alleged vulnerability to abuse
in prison; and that the district court erred in ordering restitution, given a lack of
evidence showing that his offense proximately caused “Vicky’s” injuries. The
Government concedes the latter point in light of our recent holding in United States
v. Kennedy, 643 F.3d 1251 (9th Cir. 2011), and agrees that the restitution order
should be vacated and the issue remanded. We affirm with respect to Baroun’s
prison sentence, and reverse and remand with respect to the restitution order.
1. Baroun challenges his prison sentence as substantively unreasonable
under the Federal Sentencing Guidelines. He claims that the district court failed
properly to take into account his vulnerability to abuse in prison, which he alleges
arises from his offense, his demeanor, and his physical characteristics, and is
evidenced by his history of altercations while incarcerated.
We review for abuse of discretion a district court’s sentencing decision,
including denials of motions for downward departure, asking whether or not the
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decision was reasonable. Gall v. United States, 552 U.S. 38, 46 (2007); United
States v. Dallman, 533 F.3d 755, 760-61 (9th Cir. 2008). Where the district court
has committed no procedural error, we review the substantive reasonableness of a
sentence’s length, taking into account “the totality of the circumstances” and
giving deference to the district court’s judgment of factual significance in imposing
a sentence pursuant to the factors of 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51.
While a sentence falling within the advisory Guidelines range is not presumptively
reasonable, it “will normally not be found unreasonable on appeal.” United States
v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc).
In this case, the district court considered the sentencing factors of § 3553(a)
and then imposed a sentence in the middle of the advisory Guidelines range.
Baroun essentially contends that the district court failed to give sufficient weight to
his vulnerability to abuse in prison. The district court considered this argument,
however, and simply concluded that any such vulnerability did not warrant a
downward departure. Nothing in the record or in our case law suggests that the
district court’s decision was unreasonable. Thus we cannot say that the district
court abused its discretion in sentencing Baroun.
2. Baroun also challenges the district court’s restitution order, arguing that
the Government failed to establish a proximate-causal link between the conduct of
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his offense and the harm incurred by “Vicky.” We review a restitution order for
abuse of discretion, provided that it is within the bounds of the statutory
framework, and review for clear error factual findings supporting the order. United
States v. Lazarenko, 624 F.3d 1247, 1249 (9th Cir. 2010). However, we review de
novo the legality of the order, which includes “[w]hether an order of restitution
falls ‘within the bounds of the [relevant] statutory framework.’” Kennedy, 643
F.3d at 1260 (quoting Lazarenko, 624 F.3d at 1249).
Section 2259, “Mandatory restitution” under Chapter 110, “Sexual
Exploitation and Other Abuse of Children,” of Title 18 of the U.S. Code requires,
in general language, that district courts order restitution for offenses under that
chapter. Although we have “recognized that [§ 2259] is ‘phrased in generous
terms, in order to compensate the victims . . . ,’” United States v. Doe, 488 F.3d
1154, 1159 (9th Cir. 2007) (quoting United States v. Laney, 189 F.3d 954, 966 (9th
Cir. 1999)), we have also “interpreted [§ 2259] as allowing restitution only for
losses that were ‘proximately’ caused by the defendant’s conduct,” Kennedy, 643
F.3d at 1261 (quoting Laney, 189 F.3d at 965). Accordingly, the court must find
that a defendant’s conduct caused “specific losses” of the victim that “can be
calculated with ‘some reasonable certainty.’” Kennedy, 643 F.3d at 1263 (quoting
Doe, 488 F.3d at 1160).
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Baroun contends that nothing in the record specifically ties any of “Vicky’s”
injuries to his conduct; rather, her harms are the cumulative, indivisible result of
her previous abuse along with the ongoing viewing of her pornographic images by
many individuals. Indeed, we recently held in a “Vicky” case with a nearly
identical (in relevant part) record that the district court had erred in awarding
restitution in the amount of $1,000 per image ($48,000 in total), reasoning that the
evidence was insufficient to establish a causal connection between the defendant’s
particular conduct and any discrete harms suffered by “Vicky.” Kennedy, 643 F.3d
at 1260-65. The only things distinguishing the present case from Kennedy are the
total awarded amount and the method of calculation, and neither difference is
ultimately material. First, the coincidental size of the award is irrelevant to
whether a proximate-causal connection existed. Second, in arriving at its award,
the district court in this case simply selected an arbitrary fraction of the statutorily
presumptive damages in the civil context, see 18 U.S.C. § 2255, thus failing
effectively to address proximate cause.
While it is mandatory for the court to consider restitution under the statute,
the court can order restitution only when there is evidence of proximate cause. As
we have previously acknowledged, “it is likely to be a rare case” where the
Government can carry its burden under this standard. Kennedy, 643 F.3d at 1266.
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However, unless and until Congress makes a change, “we remain bound by the
language of the statute and our precedent.” Id. Accordingly, Baroun’s restitution
order is hereby vacated.
We reverse and remand to the district court, on this issue, for proceedings
consistent with this order. On remand, the Government may consider whether it
can put forth further evidence that would suffice to show proximate cause by
means suggested by Kennedy. See id. (noting that the Government might be able
to establish proximate cause in this kind of case by submitting reasonable estimates
of the victim’s lifetime harms and the total number of offenders).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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