U.S. v. Wright

• Decision Date: 20 April 2011
• Docket Number: No. 09–31215.,09–31215.
• Citation: 639 F.3d 679
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Michael WRIGHT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

639 F.3d 679

UNITED STATES of America, Plaintiff–Appellee,

v.Michael WRIGHT, Defendant–Appellant.

No. 09–31215.

United States Court of Appeals, Fifth Circuit.

April 20, 2011.

Brian Marshall Klebba, Diane Hollenshead Copes (argued), Stephen Andrew Higginson, James R. Mann, Asst. U.S. Attys., New Orleans, LA, for U.S. Robin Elise Schulberg (argued) and Roma Ajubita Kent, Asst. Fed. Pub. Defenders, New Orleans, LA, for Wright.Appeal from the United States District Court for the Eastern District of Louisiana.Before KING, DAVIS and SOUTHWICK, Circuit Judges.PER CURIAM:

Michael Wright pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to 18 U.S.C. § 2259, the district court ordered Wright to pay $529,661 in restitution to one of the children, “Amy,” portrayed in some of the images Wright possessed. Wright appeals this restitution order, arguing that § 2259 includes a proximate causation requirement and that the restitution order exceeds the amount of Amy's losses that his offense caused. Because we cannot discern from the record any supportable rationale for the district court's order of $529,661, we vacate the restitution order and remand for proceedings consistent with this opinion.

I.

Wright pleaded guilty to a one-count bill of information charging possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Wright entered into a plea agreement in which he waived his right to appeal but preserved his right to appeal “any punishment in excess of the statutory maximum.” The plea agreement stated that “the restitution provisions of Sections 3663 and 3663A of Title 18, United States Code will apply....” The plea agreement did not make reference to the distinct provisions regarding mandatory restitution for crimes of sexual exploitation against children, 18 U.S.C. § 2259.

During the guilty plea colloquy, the district court restated the terms of the plea agreement regarding Wright's waiver of appeal, noting the exception for punishment in excess of the statutory maximum, and asked if Wright understood all of the rights he was waiving. Wright answered in the affirmative. The district court also asked Wright if he understood that “You also may be required to reimburse any victim for the amount of his or her loss under the Victim Restitution Law, if that term is applicable,” and Wright again answered affirmatively.

The Factual Basis of the guilty plea indicates that law enforcement agents found 30,000 images and videos on Wright's computer showing sexually explicit images of children under 18 years of age, some less than 12 years of age. Some of the images were of identifiable children. According to the Pre–Sentence Report (“PSR”), the government was able to identify 21 children in the images, one of whom is called “Amy.” The PSR attached a victim impact statement by Amy.

Amy's victim impact statement attests that Amy's uncle began sexually abusing her when Amy was four years old. Her uncle distributed explicit images of the abuse to other people and such images have somehow been traded or have otherwise become available on the internet. Wright is one of hundreds, if not thousands, of individuals possessing Amy's images. Amy is now a teenager. Thousands of images of Amy's abuse have emerged in numerous child pornography cases since 1998.

Amy testifies in her statement that “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them.... It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle....” Amy's psychologist, Dr. Silberg, submitted a report regarding the psychological trauma Amy experiences because of the images of her abuse being traded and viewed on the internet. Dr. Silberg determined that each discovery that another defendant viewed her images “re-traumatizes her again.”

Upon request of Amy's law firm and based in part on Dr. Silberg's report, the PSR recommended restitution to Amy in the amount of $3,367,854. This figure is based on Amy's total losses. These losses include the total costs of her future psychological counseling, $512,681, based on an estimate that Amy will need counseling once weekly for the rest of her life, and Amy's estimated lost future income of $2,855,173.

Wright filed a motion opposing restitution for lack of evidence that Amy's losses were caused by his offense. Wright argued that § 2259 requires a showing of proximate causation and that no evidence indicated that Wright's individual offense caused Amy's psychological distress. Wright pointed out that he did not come into possession of the images until many years after the abuse occurred, and that no evidence suggests that Amy was ever aware that he personally possessed or viewed the images.

The government responded, attaching Amy's firm's supplemental memoranda and expert reports. The government asserted various legal theories regarding a broad view of causation under § 2259. The government argued that it was within the court's discretion to award restitution for Amy's entire set of damages.

The district court overruled Wright's objection to restitution based on lack of causation, but did not elaborate on its reasoning, simply stating that upon consideration of the issue “the court concludes that some award of restitution is appropriate....” The court ordered Wright to pay Amy $529,661 in restitution, basing this amount on the total value of Amy's anticipated future counseling expenses and expert services in tabulating the expenses as indicated in the PSR and attached reports. The district court stipulated that Wright's duty to pay restitution would be “concurrent” with any other restitution orders of other defendants payable to this victim. The district court ordered that Wright's obligation to pay begin immediately, but assuming that the obligation has not been satisfied upon his release from prison (after his 96–month sentence), ordered that Wright should pay $200 per month thereafter.

II.

The legality of a restitution order is reviewed de novo. United States v. Arledge, 553 F.3d 881, 897 (5th Cir.2008). If a restitution order is legally permitted, the amount of the order is reviewed for abuse of discretion. Id.; United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009). The validity of an appeal waiver is reviewed de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir.2005).

III.

This appeal presents issues related to the amount of restitution that a district court may order a defendant convicted of possessing child pornography to pay to one of the children depicted in the images. Similar issues have been raised in a large number of federal district and circuit courts in recent years. Many of these cases involve Amy, the same victim in this case. A panel decision of this court was very recently issued in a case raising similar, overlapping questions with regard to a different defendant convicted of possessing images of Amy. In re Amy, 636 F.3d 190 (5th Cir.2011).

Like the defendant in In re Amy and those in other similar cases, Wright argues that § 2259 requires a causal connection between his offense and the victim's damages or recoverable losses. He asserts that his offense conduct did not cause Amy's losses at all, much less in the amount of $529,661. In response, the government concedes on appeal that § 2259 does contain some kind of causation requirement. The government contends generally, however, that this requirement of § 2259 is to be liberally construed in favor of victim restitution and that the district court has wide discretion to order restitution.

As explained further below, the recent In re Amy panel opinion rejected the causation arguments made by Wright, holding that § 2259 does not limit Amy's recoverable losses to those proximately caused by a defendant's offense. See In re Amy, 636 F.3d at 198. We evaluate Wright's appeal under this precedent.

A.

We first consider the government's argument that Wright's appeal is barred by his appeal waiver. “A defendant may waive his statutory right to appeal his sentence if the waiver is knowing and voluntary.” United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005). Wright's waiver does not meet this standard because the record suggests that at the time he entered into the plea agreement, Wright was not aware that he might be ordered to pay a large restitution payment that possibly exceeds the losses to Amy proximately caused by his conduct. Wright's plea agreement referred to the general restitution provisions of 18 U.S.C. §§ 3663 and 3663A, which both indisputably include proximate causation as a condition of restitution.¹ Additionally, Wright's plea agreement reserved the right to appeal “any punishment in excess of the statutory maximum.” Generally, a restitution order under § 3663 that exceeds the losses caused by the defendant's offense exceeds the statutory maximum. See United States v. Norris, 217 F.3d 262, 271–72 (5th Cir.2000) (vacating a § 3663 restitution award for lack of evidence of causation); see also United States v. Broughton–Jones, 71 F.3d 1143, 1146 (4th Cir.1995) (vacating a § 3663 restitution order, despite an appeal waiver, because the order was not limited to losses caused by the defendant and thus exceeded the statutory maximum). In contrast, the In re Amy panel only recently interpreted § 2259 as not including the same proximate causation requirement of §§ 3663 and 3663A, long after Wright entered into the plea agreement. Thus, Wright did not knowingly waive his right to appeal a restitution order that is unlimited by the principle of proximate causation.

This conclusion is further supported by the fact that neither Wright's plea agreement nor any plea-related documents refer to § 2259. The district judge's...