United States v. Hagerman

13-4854-cr
United States v. Hagerman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand fourteen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 13-4854-cr
PAUL HAGERMAN,
Defendant-Appellant.
________________________________________________
For Appellee: Richard A. Friedman, Appellate Section, Criminal
Division, United States Department of Justice (Tamara
Thomson, Assistant United States Attorney, Northern
District of New York, on the brief), for Richard
Hartunian, United States Attorney for the Northern
District of New York, David O’Neil, Acting Deputy
Assistant Attorney General, and Leslie R. Caldwell,
Assistant Attorney General, Criminal Division, United
States Department of Justice, Washington, DC.
For Defendant-Appellant: Molly Corbett, Research and Writing Specialist, Gene
V. Primono, Assistant Federal Public Defender, for
Lisa Peebles, Acting Federal Public Defender for the
Northern District of New York, Albany, NY.
Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Paul Hagerman appeals from an amended judgment of conviction
dated December 13, 2013 in the United States District Court for the Northern District of New
York (Suddaby, J.), following his guilty plea to one count of receiving child pornography and
one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (B).
We assume the parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
Hagerman had previously appealed both his sentence, which we affirmed, and the initial
restitution awarded to a victim of his crimes under 18 U.S.C. § 2259, which we reversed and
remanded. See United States v. Hagerman, 506 F. App’x 14 (2d Cir. 2012) (summary order). In
this appeal, Hagerman challenges the new restitution award of $3,281. “We review restitution
orders deferentially and will reverse only for abuse of discretion.” United States v. Paul, 634
F.3d 668, 676 (2d Cir. 2011) (internal quotation marks omitted). We reversed the initial
restitution award because of an error in its calculation, but we upheld both the district court’s per
capita method of calculating restitution by dividing the victim’s total losses by the number of
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defendants successfully prosecuted as well as the district court’s finding that Hagerman
proximately caused a portion of the losses. See Hagerman, 506 F. App’x at 18–19.
Hagerman argues that these conclusions were upended by two recent Supreme Court
decisions: Burrage v. United States, 134 S. Ct. 881 (2014), and Paroline v. United States, 134 S.
Ct. 1710 (2014).* Burrage held that but-for causation was required by a provision of the
Controlled Substances Act analogous to section 2259, which might arguably have supported
Hagerman’s appeal. But Paroline interpreted the very provision at issue here—the definition of a
victim as “ ‘the individual harmed as a result of a commission of a crime under this chapter.’ ”
Paroline, 134 S. Ct. at 1720 (quoting section 2259). In so doing, the Supreme Court
unmistakably endorsed the proximate causation analysis that we affirmed in Hagerman’s first
appeal, stating that “the victim’s costs of treatment and lost income resulting from the trauma of
knowing that images of her abuse are being viewed over and over are direct and foreseeable
results of child-pornography crimes, including possession, assuming the prerequisite of factual
causation is satisfied.” Id. at 1722. We have no doubt that both proximate and factual causation
were established here.
Paroline continued: “[W]here it can be shown both that a defendant possessed a victim’s
images and that a victim has outstanding losses caused by the continuing traffic in those images
but where it is impossible to trace a particular amount of those losses to the individual defendant
by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution
in an amount that comports with the defendant’s relative role in the causal process that underlies
*
Because the Supreme Court had not issued its opinion in Paroline when Hagerman filed
this appeal, his arguments about Paroline are based only on the briefs filed in that case.
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the victim’s general losses.” Id. at 1727. In this case, the district court found that the entirety of
the victim’s losses were a direct result of her knowledge that unidentified individuals had
downloaded and trafficked in pornographic images of her abuse, and that factual finding was not
clearly erroneous. To arrive at Hagerman’s individual contribution, the district court then
divided the victim’s total losses by the number of criminal defendants who contributed to those
losses by possessing the victim’s images. Hagerman did not object to this calculation method
below, and in light of the Supreme Court’s guidance in Paroline, we perceive no “clear or
obvious” legal error that would render the district court’s approach an abuse of discretion.
United States v. Marcus, 560 U.S. 258, 262 (2010). The resulting award was neither “severe . . .
[nor] a token or nominal amount,” Paroline, 134 S. Ct. at 1727, but was well “within the range
of permissible decisions,” Paul, 634 F.3d at 676 (internal quotation marks omitted).
We have considered Hagerman’s remaining arguments and find them to be without merit.
For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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