          United States Court of Appeals
                      For the First Circuit


No. 12-2421

                          UNITED STATES,

                            Appellee,

                                v.

                      LUIS A. MONTALVO-CRUZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]



                              Before

                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges.



     Vivianne M. Marrero-Torres, Assistant Federal Public Defender,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender,
Supervisor, Appeals Section, were on brief, for appellant.
     Marshal D. Morgan, Assistant United States Attorney, with whom
Juan Carlos Reyes-Ramos, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
were on brief, for appellee.


                          March 17, 2014
              LYNCH, Chief Judge. This appeal from a restitution order

adheres to the adage that no good deed goes unpunished.                         Luis

Antonio Montalvo-Cruz was convicted of producing child pornography.

See 18 U.S.C. § 2251.           His victim, Jane Doe, was a 15-year-old

daughter of a woman who lived in the same housing project.                        He

befriended both, but, in early 2012, he betrayed both.                  Instead of

driving Jane to school, he took her to a motel where he recorded

his   sexual    activity      with   her.     All   told,   he     produced     five

pornographic videos of himself and Jane.

              He pled guilty in July 2012, and the Probation Department

prepared a presentence investigation report ("PSR").                         See id.

§ 3664(a), as incorporated by id. § 2259(b)(2).                  In preparing the

PSR, the Probation Officer interviewed Jane's mother to gauge the

impact of defendant's crimes. In that interview, the mother stated

that the "family has been emotionally affected" as a result of

defendant's actions, that both of her daughters "lowered" their

school grades, and that Jane "no longer wants to play volleyball."

In addition, the mother explained that Jane "cries a lot at night

and   does     not    allow    anyone   to     touch     her,    as    she    reacts

aggressively," but that she "has not received any mental health

treatment, for they cannot afford to pay $60 per session."

(emphasis added).       The mother's statements were contained in the

PSR   under     the   heading    "Victim      Impact."      As    to    "Fine    and

Restitution," the PSR mentioned that a special monetary assessment


                                        -2-
in the sum of $100 is mandatory pursuant to 18 U.S.C. § 3013, and

that "the Victim and Witness Protection Act could apply in this

case."   Defendant did not object to the PSR.    Nor did he seriously

argue there was any problem with the $60 an hour estimate.

           The district court held a sentencing hearing in October

2012, sentencing defendant to 210 months' imprisonment.1            The

district court advised that it would order that defendant pay

restitution to Jane:

           THE COURT:   . . . I would like an allocation of
           $60.00 per month to be transferred to the victim of
           this case, so that she can pay for her treatment
           and in this way the defendant will contribute to
           the rehabilitation or progress and mental health
           treatment of the victim.     That situation shall
           continue during the term of supervision as long as
           the victim is determined to be in need of
           treatment.

           Defense   counsel   objected   to   the   district   court's

approach, expressing concern that Jane would not use the money for

counseling.   As an alternative, defense counsel proposed a plan

under which Jane would pay for her future counseling services,

periodically presenting evidence of payment that defendant would

then reimburse.



     1
        Although defendant's plea agreement contained a waiver of
appeal, that waiver was conditional on the district court
sentencing   defendant   in  accordance    with   the   agreement's
recommendation, including that he be sentenced to 180 months on his
count of conviction. Because the district court did not follow
that recommendation, the waiver of appeal does not apply.       See
United States v. Ríos-Hernández, 645 F.3d 456, 461-62 (1st Cir.
2011).

                                 -3-
          The   district   court     responded   by   suggesting   that

restitution be ordered for a specific time frame and that the same

amount be ordered payable to Jane, but "[i]f the minor refuses

treatment or is not attending treatment, then the monies will be

deposited in the general victim fund," i.e. the Crime Victims Fund

established by the Victims of Crime Act of 1984 ("the Fund"), 42

U.S.C. § 10601(a).   The Fund provides, inter alia, grants to state

programs for direct reimbursement to or on behalf of a crime victim

for mental health counseling.      Office for Victims of Crime, Crime

Victims Fund, http://ojp.gov/ovc/pubs/crimevictimsfundfs/intro.html

(last visited Mar. 12, 2014).

          To this, defense counsel objected that the restitution

money should not be deposited into the Fund.     In addition, counsel

suggested there was a causation issue. The district court rejected

defense counsel's argument as to causation. As to restitution, the

court explained:

          THE COURT: Okay, let's avoid the confusion probably
          generated.    But the intent and general purpose
          [are] the same.     First of all and to simplify
          things instead of opening the loophole of how we
          verify that the minor is receiving the treatment,
          how the money will be disbursed, I think there
          [are] no qualms that this minor is entitled to
          receive treatment under the [Fund].         As such
          whatever treat[ment] might be received and whatever
          the allocations of money that she receives from
          [the Fund] depending on the treatment she receives,
          I think that $60.00 per session is generally
          speaking, a low amount, but also one session a
          month I think it is also a very minimal estimate of
          what might be needed in this type of circumstances.
          What I will be doing is modifying my instruction

                                   -4-
             and order to impose upon the defendant the
             restitution of the total sum of $6,000.00 to the
             [Fund].    This money is to be paid while the
             defendant is serving his sentence and if not during
             his incarceration, will [be] completely paid during
             the first five years of his supervised release.
             The Probation Officer will certainly make sure that
             the victim is placed on notice that she is entitled
             to treatment and to economic assistance from the
             [Fund] in order to provide for her therapy.

             In short, the district court originally wanted to simply

order payment of $6,000 to Jane; that is, $60 a month for eight-

plus years based on the need for treatment.       Defendant objected to

that, saying the victim might not use the money for treatment. The

court then attempted to accommodate that objection by ordering

payment to the Fund, from which payment would be made to provide

Jane with therapy. Although careful consideration of a defendant's

objections is laudable, the district court's compromise had the

unfortunate effect of unnecessarily complicating Jane's receipt of

restitution.

             On appeal, defendant has changed his position.        Having

objected   during   sentencing   to   the   district   court's   award   of

restitution to the victim, he has now appealed saying the district

court erred in ordering the payment be made to the Fund rather than

to Jane, and in determining the amount of restitution to be paid.

We bypass the questions of waiver and cut through to the ultimate

questions.




                                  -5-
                                          I.

             "We review orders of restitution for abuse of discretion,

reviewing legal questions de novo and subsidiary findings of fact

for clear error."         United States v. Kearney, 672 F.3d 81, 91 (1st

Cir. 2012). "Federal courts possess no inherent authority to order

restitution,       and    may   do   so   only     as    explicitly      empowered   by

statute."      United States v. Hensley, 91 F.3d 274, 276 (1st Cir.

1996).       In    this    case,     because     the     district     court     ordered

restitution as to defendant's violation of 18 U.S.C. § 2251(a), 18

U.S.C. § 2259 governs.

             The details of defendant's particular arguments need not

detain us.     The small restitution amount of $6,000 was based on a

calculation of treatment at $60 per session, for a modest one

session per month, to last for a period of a little over eight

years.   The PSR provided ample and timely evidence to support this

restitution award, in full compliance with statutory requirements.

See 18 U.S.C. § 3664(d)(2) & (d)(5), as incorporated by id.

§ 2259(b)(2).        Given that defendant never objected to the PSR,

defendant's first argument on appeal -- that the PSR provided

insufficient evidence of the victim's injuries -- is unconvincing.

See United States v. Torres Gonzalez, 240 F.3d 14, 18 (1st Cir.

2001) (holding that challenge to district court's reliance on PSR

was   waived      where    defendant      failed    to    object    to    PSR   during

sentencing).


                                          -6-
             That leaves the defendant's second argument on appeal --

that the victim should be paid directly. This is, of course, quite

different than what he told the district court.

             The government has defended the order actually entered

but   says,    given   that   all   parties   now   agree   as   to   the

appropriateness of the district court's preferred restitution order

to the victim, we should just remand and direct the court to enter

a restitution order of $6,000 against defendant but payable to the

victim.   The effect of this would be in keeping with the purpose of

restitution: once the victim's loss is appropriately identified, a

court "shall order restitution," 18 U.S.C. § 2259(a), and there is

no basis here for accommodating a defendant's desire to monitor how

his victim uses the restitution payment.      See, e.g., United States

v. Laney, 189 F.3d 954, 967 (9th Cir. 1999) ("[I]f Congress

intended crime victims who required long-term psychological . . .

therapy to receive restitution only after they actually paid their

therapists, it created a strangely unwieldy procedure in section

3664, which would require a victim to petition the court for an

amended restitution order every 60 days for as long as the therapy

lasted.").     We agree with the government that nothing in the law

precludes us from doing so, and we so order.        Cf. United States v.

Ahrendt, 560 F.3d 69, 80 (1st Cir. 2009) ("Although the district

court is under no obligation to modify [the defendant]'s sentence,

we nevertheless think it prudent to allow the court the opportunity


                                    -7-
to consider [recent, non-binding developments]."); United States v.

Godin, 522 F.3d 133, 136 (1st Cir. 2008) (similar).

          We regret that defendant's misguided objection to the

district court's original order of payment to the victim has

resulted in this appeal.      We have expedited this opinion in order

to see that the victim promptly receives restitution.

                                   II.

          We   vacate   and    remand    for   further   proceedings   in

accordance with this decision.




                                   -8-
