United States v. Dillard

• Decision Date: 30 May 2018
• Docket Number: No. 17-4417, No. 17-4418,17-4417
• Citation: 891 F.3d 151
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Mario Ahlazshuna DILLARD, Defendant–Appellee. United States of America, Plaintiff–Appellee, v. Mario Ahlazshuna Dillard, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

891 F.3d 151

UNITED STATES of America, Plaintiff–Appellant,

v.Mario Ahlazshuna DILLARD, Defendant–Appellee.

United States of America, Plaintiff–Appellee,

v.Mario Ahlazshuna Dillard, Defendant–Appellant.

No. 17-4417

No. 17-4418

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2018

Decided: May 30, 2018

ARGUED: Laura Day Rottenborn, Office of the United States Attorney, Roanoke, Virginia, for Appellant/Cross-Appellee. Randy Virlin Cargill, Office of the Federal Public Defender, Roanoke, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Rick A. Mountcastle, Acting United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellant/Cross-Appellee. Larry W. Shelton, Federal Public Defender, Office of the Federal Public Defender, Roanoke, Virginia, for Appellee/Cross-Appellant.

Before KING, AGEE, and THACKER, Circuit Judges.

Dismissed in part, vacated in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Judge King and Judge Thacker joined.

AGEE, Circuit Judge:

Mario Ahlazshuna Dillard pleaded guilty to multiple counts of sexual exploitation of a child and one count of receipt and distribution of child pornography. The district court sentenced Dillard to 420 months' imprisonment, a term of supervised release, and also ordered him to pay restitution to one victim. From that sentence, Dillard appeals only the grant of $100,000 in restitution to his sole contact victim, and the Government appeals the district court's denial of restitution to Dillard's non-contact victims. Because Dillard's challenge to the amount of restitution awarded to the contact victim falls within the scope of his appeal waiver, we dismiss his appeal. And because the district court's reasons for denying restitution to the non-contact victims contradict the Supreme Court's instruction in Paroline v. United States , 572 U.S. 464, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), we vacate that restitution order and remand for further proceedings to determine an appropriate amount of restitution for each non-contact victim.

I.

Between July 2014 and October 2015, Dillard used a computer and mobile phone to access websites and instant messaging apps that allowed him to view, download, and upload child pornography. One website Dillard frequented required him to post child pornography at least once a month to maintain his membership.

On multiple occasions during this same period, Dillard sexually abused a five-year-old female ("Minor Girl A"). Dillard recorded the abuse—which included acts of vaginal and anal penetration—and uploaded those video files to the Internet.

In February 2016, Dillard was charged in a superseding indictment with multiple counts of sexual exploitation of a child, receipt and distribution of child pornography, and possession of child pornography. He pleaded guilty pursuant to a written plea agreement to three counts of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e), and to one count of receiving and distributing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(b)(1). In exchange, the Government dismissed the remaining charges. The plea agreement contained the following appeal waiver provision:

Knowing that I have a right of direct appeal of my sentence under 18 U.S.C. § 3742(a) and the grounds listed therein, I expressly waive the right to appeal my sentence on those grounds or on any ground. In addition, I hereby waive my right of appeal as to any and all other issues in this matter and agree I will not file a notice of appeal. I am knowingly and voluntarily waiving any right to appeal. By signing this agreement, I am explicitly and irrevocably directing my attorney not to file a notice of appeal. Notwithstanding any other language to the contrary, I am not waiving my right to appeal or to have my attorney file a notice of appeal, as to any issue which cannot be waived, by law. I understand the United States expressly reserves all of its rights to appeal. I agree and understand if I file any court document (except for an appeal based on an issue that cannot be waived, by law, or a collateral attack based on ineffective assistance of counsel ) seeking to disturb, in any way, any order imposed in my case such action shall constitute a failure to comply with a provision of this agreement.

J.A. 1516 (emphasis omitted ). In addition, the plea agreement's section covering restitution specifically noted Dillard's consent

to pay restitution for the entire scope of my criminal conduct, including, but not limited to, all matters included as relevant conduct, which includes, but is not limited to, conduct pertaining to Minor Girl A .... In addition, I agree to pay any restitution required by law, including, but not limited to, amounts due pursuant to 18 USC §§ 2259, 3663, and/or 3663A. I understand and agree a requirement I pay restitution for all of the above-stated matters will be imposed upon me as part of any final judgment in this matter.

J.A. 1511.

Prior to accepting Dillard's plea, the district court conducted the required colloquy under Federal Rule of Criminal Procedure 11 to inform Dillard of the charges, penalties, and other rights affected by his plea, and to determine that Dillard understood and voluntarily consented to each provision of the plea agreement. In particular, the court reiterated the nature and effect of the appeal waiver, and Dillard indicated he understood. Thereafter, the district court accepted Dillard's plea and sentenced him to 420 months' imprisonment.

At sentencing, the district court also considered the parties' arguments as to an appropriate amount of restitution under 18 U.S.C. § 2259, which makes it mandatory for district courts to "direct the defendant to pay the victim ... the full amount of the victim's losses." § 2259(b)(1), (4)(A). The Government sought restitution on behalf of Minor Girl A and seven non-contact victims whose images were part of Dillard's offense conduct.¹

A letter from Minor Girl A's clinical counselor was submitted on behalf of the family and requested $3,590 to pay counseling and related expenses. The Government believed this sum "underestimat[ed ] the extent of her damages," and it asked the court to order twice that amount, $7,180. J.A. 75.

Instead, the district court awarded Minor Girl A $100,000 in restitution, concluding that both requested amounts were "far too conservative to compensate [Minor Girl A] adequately for her present and future harms." J.A. 121. The court noted Dillard's sole responsibility for all losses Minor Girl A will suffer as a result of the sexual abuse and decision to disseminate it. After acknowledging that some part of her loss was as-yet "unknowable," the court observed it was also not "seriously dispute[d ]" that Dillard's sexual abuse of Minor Girl A would have "long-term psychological effects [that] will require services." J.A. 122. To determine an appropriate amount of restitution, the court compared Minor Girl A's case to the records submitted on behalf of the non-contact victims. Because more time has elapsed between the non-contact victims' original sexual abuse and present day, they have had more time to document the losses arising from their abusers' decision to upload images to the Internet for continued circulation. The court observed that victims of this sort of offense, on average, suffered harm totaling well over one million dollars. In light of these considerations, the court found that "$100,000.00 [was] a very conservative figure representing [Minor Girl A's] likely future needs stemming from her abuse and exploitation." J.A. 122.

In addition to seeking restitution for Minor Girl A, the Government advocated restitution for seven non-contact victims.²

As noted, these victims submitted extensive documentation concerning their aggregate losses from their original sexual abuse and the ongoing trade in images created during that abuse. Recognizing the difficulty in quantifying harm resulting from this sort of offense, the Government requested restitution for six victims based on the following formula: the total damages each victim documented divided by the number of defendants who had already been ordered to pay restitution plus one (to account for Dillard ). The seventh non-contact victim asked for twice as much as this formulation yielded, but the Government supported that request, noting that her requested amount of restitution equaled less than 1% of her documented losses.

The district court concluded that the Government failed to meet its burden of proving that any amount of restitution was appropriate for the non-contact victims for two reasons. First, it held the Government failed to prove causation because it had not introduced any "evidence connecting [the non-contact victims'] significant harm to this Defendant." J.A. 122. In particular, the court noted there was no evidence any of the non-contact victims were ever aware of Dillard's conduct. Second, the court concluded that the Government's proposed formula for restitution was just a "stab in the dark" at setting an amount, and it expressed concern that the formula would overcompensate the victims. J.A. 123. The court explained that before it could set an amount of restitution, "under Paroline ," the Government had to introduce evidence showing, "[a]t a minimum," "(a) how much restitution has been awarded by other courts to each victim, and (b) how much restitution has been collected by each victim." J.A. 123.

The Government and Dillard noted timely appeals. The Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

A.

Dillard challenges the district court's decision to award $100,000 in restitution to Minor Girl A, asserting that the record does not support an award of that amount given that the only evidence in the record as to Minor Girl A's anticipated loss is the counselor's letter seeking $3,590. The Government counters that this issue falls within the scope of...