                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 19 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10250

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00477-JAM-1

  v.
                                                 MEMORANDUM*
DUKE NOTTINGHAM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted July 12, 2013**
                             San Francisco, California

Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.

       Duke Nottingham was convicted after a jury trial of possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and distribution of child

pornography, in violation of 18 U.S.C. § 2252(a)(2). Nottingham appeals his


        *
             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).
conviction, sentence, and restitution award, arguing: (1) the prosecutor improperly

posed guilt-assuming hypothetical questions to defense character witnesses; (2) the

108-month sentence imposed by the district court was substantively unreasonable;

and (3) restitution was erroneously awarded. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm Nottingham’s conviction and sentence. We vacate the

restitution order and remand to the district court to consider what restitution, if any,

should be imposed in accordance with the standards articulated in United States v.

Kennedy, 643 F.3d 1251 (9th Cir. 2011).

      Nottingham contends that the prosecutor’s use of guilt-assuming

hypothetical questions during the cross-examination of defense character witnesses

constitutes reversible error. However, the majority of the questions posed by the

prosecutor were neither hypothetical nor rested upon an impermissible assumption

of guilt. Instead, the prosecutor questioned the defense witnesses regarding

misconduct admitted by Nottingham in opening statements and in a stipulation

submitted to the jury. Questions based on admitted facts do not impinge on the

presumption of innocence, and the government may properly cross-examine

defense character witnesses regarding “acts that the defense counsel stated in his

opening statement had occurred.” United States v. Velasquez, 980 F.2d 1275, 1277

(9th Cir. 1992).


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      While the majority of the questions posed by the prosecution were

permissible, the cross-examination of Kimberly Nottingham was improperly

premised on a presumption of guilt as to the contested distribution charge. United

States v. Shwayder, 312 F.3d 1109, 1121 (9th Cir. 2002) (the use of guilt-assuming

hypotheticals “undermines the presumption of innocence and thus violates a

defendant’s right to due process.”). Although the prosecutor’s questions were

improper, defense counsel failed to object to the improper questioning. We

conclude that reversal is not warranted under the plain error standard. See United

States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). Three improper questions

were asked during a three-day trial where substantial evidence of guilt was offered,

the witness rejected the premise of these questions, and the witness provided

favorable answers in response to the improper questioning. As a result, the error

did not seriously affect the fairness, integrity, or public reputation of the judicial

proceedings. Shwayder, 312 F.3d at 1121–22.

      Nottingham’s second argument, that the sentence imposed by the district

court was substantively unreasonable, also fails. We review the substantive

reasonableness of a sentence for abuse of discretion. United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc). The district court considered each of the §

3553(a) factors before imposing sentence, as evidenced by the sentencing


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transcript which contains sixteen pages devoted to the court’s analysis. In light of

the totality of the circumstances, and according deference to the district court’s

individualized determination, we conclude that the sentence imposed by the district

court was substantively reasonable and not an abuse of discretion.

      Lastly, Nottingham argues that the district court’s restitution order was

unlawful under 18 U.S.C. § 2259 because the government failed to present

sufficient evidence that Nottingham proximately caused harm to the victims, and

failed to offer a defensible method for calculating the victims’ losses. To support a

restitution award the government bears the burden of proving, “by a preponderance

of the evidence, the measure of the losses to [the depicted children] that were

proximately caused by [the defendant’s] offense.” Kennedy, 643 F.3d at 1259. We

need not decide whether the government satisfied its burden of proving that

Nottingham’s conduct proximately caused harm to the portrayed victims because

the district court erred in calculating the restitution owed.

      Restitution is only appropriate if the victims’ losses “can be calculated with

‘some reasonable certainty.’” Id. at 1263. The prosecution did not provide

evidence of the specific losses endured by each victim resulting from Nottingham’s

offenses, but instead suggested that a restitution award of $7,500 per victim should

be imposed anytime a defendant contests a distribution charge at trial. Such pro


                                            4
forma calculations do not satisfy the requirement, set forth in Kennedy, that district

judges not “‘engage in . . . arbitrary calculations’ to determine the amount of the

victim’s losses.” Id. at 1261 (alteration in original).

      Accordingly, we affirm the conviction and sentence imposed but vacate the

restitution order. We remand for further proceedings before the district court the

determination of whether restitution is warranted and whether it can properly be

calculated in conformance with our circuit jurisprudence.

      AFFIRMED in part, VACATED in part, and REMANDED.




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