United States v. Richard Baxter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 01 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30364
Plaintiff - Appellee, D.C. No. 1:07-cr-00165-JDS-1
v.
MEMORANDUM*
RICHARD JOHN BAXTER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Submitted August 30, 2010**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Richard John Baxter appeals his 210-month sentence for the federal offense
of receipt of child pornography, 18 U.S.C. § 2252A(a)(2), arguing that the district
court imposed an unreasonably long sentence without providing sufficient
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
explanation. Baxter also appeals an order to pay $3,000 in restitution to “Vicky,”
one of the known children in his child pornography collection.
I.
The sentencing judge is required to state “in open court the reasons for [the]
imposition of the particular sentence.” 18 U.S.C. § 3553(c). To meet this
requirement, the judge need only “set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decision making authority. Nonetheless, when a judge
decides simply to apply the Guidelines in a particular case, doing so will not
necessarily require a lengthy explanation.” Rita v. United States, 551 U.S. 338,
356 (2007) (internal citation omitted).
Here, the district court reviewed the presentence report and the parties’
submissions, listened to the parties’ arguments at the sentencing hearing, and
considered their positions. At sentencing, the district court articulated reasons for
Baxter’s sentence and directly referenced at least one of the § 3553(a) factors. It
also concluded that the 210-month sentence was generally consistent with
sentences handed down by other courts in the district of Montana. The district
court did not abuse its discretion by not expressly addressing every point raised by
the parties. See United States v. Carter, 560 F.3d 1107, 1119 (9th Cir. 2009).
2
Contrary to Baxter’s contention, the record contains sufficient evidence for
us to review “whether the [district] court mistakenly believed that . . . the terms of
incarceration were mandated to be consecutive.” The sentencing memoranda and
transcript make clear that the district court was presented Baxter’s argument in
favor of concurrent sentencing, and the government’s argument in favor of
consecutive sentencing. Taken in conjunction with the district court’s statements at
sentencing, we conclude that the district court knew it could award a concurrent
sentence but chose to do otherwise. The district court did not abuse its discretion
in sentencing Baxter to the maximum within-Guidelines sentence of 210 months.
II.
When a defendant is convicted of receipt of child pornography, 18 U.S.C.
§ 2252A(a)(2), the district court is required to order restitution payable to the
victim(s) by the Mandatory Restitution for Sexual Exploitation of Children Act, 18
U.S.C. § 2259. The government has the burden of demonstrating by a
preponderance of the evidence the amount of the victim’s loss, 18 U.S.C.
§ 3664(e), and the court may, in its discretion, apportion liability among
defendants where more than one defendant contributed to the loss of the victim.
Id. § 3664(h).
3
Vicky is a victim of Baxter’s crime. See New York v. Ferber, 458 U.S. 747,
759 (1982) (explaining that “the materials produced [in child pornography] are a
permanent record of the children's participation and the harm to the child is
exacerbated by their circulation”). Baxter’s argument that the record contains no
causal link between Vicky’s losses and his actions is not supported by the record.
The United States met its burden of establishing proximate cause by showing how
Vicky’s harm was generally foreseeable to casual users of child pornography like
Baxter.
In a civil suit against Baxter, Vicky’s actual damages would be presumed to
be at least $150,000, and the government has articulated approximately $128,000
in counseling costs that Vicky faces as she works to repair the damage done by the
continued possession of images depicting her abuse. The parties fully briefed the
reasons for granting and denying the order of restitution. In particular, the
government requested a restitution order in the amount of $3,000, articulating its
recommendation by comparing it to the number of therapy sessions Vicky is
estimated to need in the coming years and their cost, and recommending that
$3,000 would cover 18 sessions, or one and one-half years of therapy, at one
session per month—an amount that the government suggested “seems to be more
4
than fair and reasonable” for Baxter to pay. We agree. There is sufficient context
to support the district court’s order granting restitution in the amount of $3,000.
AFFIRMED.
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