                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0636n.06

                                                No. 14-1420

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                                     )                Sep 11, 2015
                                                              )            DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                                   )
                                                              )
                                                                    ON APPEAL FROM THE
v.                                                            )
                                                                    UNITED STATES DISTRICT
                                                              )
                                                                    COURT FOR THE EASTERN
DONALD STEVEN REYNOLDS,                                       )
                                                                    DISTRICT OF MICHIGAN
                                                              )
        Defendant-Appellant.                                  )


     Before: BOGGS and BATCHELDER, Circuit Judges; and HUCK, District Judge.*

     BOGGS, Circuit Judge. Defendant-Appellant Donald Reynolds appeals his conviction, after

a jury trial, and his sentence for three counts of violating federal child-pornography law. He

argues that the district court erred in (1) admitting expert testimony based on historical cell-site

data; (2) permitting the government to call a rebuttal witness; (3) excluding two alibi witnesses;

(4) imposing a sentence enhancement; and (5) calculating the amount in restitution. For the

following reasons, we affirm.

                                           I.       Background

     On April 7, 2011, undercover Federal Bureau of Investigations (FBI) Special Agent Ryan

Blanton used a peer-to-peer file-sharing program to download images containing child

pornography from a computer. The FBI traced the computer’s internet-protocol address to

Donald Reynolds’s home in Canton, Michigan. On May 26, 2011, FBI agents executed a search

warrant on the home and seized the desktop computer from which Blanton had downloaded the

*
 The Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by
designation.
                                                    1
child-pornography images. In addition to Donald Reynolds, three other individuals regularly

used that computer: Reynolds’s two adult children who lived with him—Arica and Andrew

Reynolds1—and Arica’s boyfriend, Michael Cook.                       All four individuals denied using the

computer to view, download, or distribute child pornography. Reynolds admitted that he owned

the computer and that he had an account at Match.com, an online dating service.

   FBI computer forensic examiner Walker Sharp found on the computer’s hard drive over

8,000 child-pornography images that had been downloaded through a peer-to-peer file-sharing

program. Sharp identified the following periods in May 2011 during which a user downloaded

child pornography onto the computer.

      May 6, 2011 between 5:08 PM and 6:07 PM

      May 12, 2011 between 5:55 PM and 10:56 PM

      May 13, 2011 between 7:01 PM and 7:46 PM

      May 18, 2011 at approximately 2:24 PM

      May 23, 2011 between 9:42 PM and 10:23 PM

      May 24, 2011 between 7:01 AM and 7:40 AM and at 5:05 PM

      May 25, 2011 between 4:50 PM and 5:59 PM

   The FBI analyzed cellphone records and concluded that, during the relevant download

periods, Andrew, Arica, and Cook each had their cellphone activity that used cell towers that

were geographically inconsistent with their being located at Reynolds’s residence. In contrast,

Reynolds made cellphone calls that used cell towers that were consistent with his being at his

residence during the download periods. In addition to the cellphone evidence, Andrew was at

work during four of the child-pornography download periods, and Arica and Cook were not


       1
           This opinion will refer to Donald Reynolds’s adult children by their first names to avoid confusion.

                                                          2
present at the home during the May 25 download period. There was also activity through

Reynolds’s Match.com account on the computer during or near several child-pornography

downloads periods.

   The government charged Reynolds with one count of receipt of child pornography, in

violation of 18 U.S.C. § 2252(A)(a)(2); one count of distribution of child pornography based on

sharing files with Agent Blanton on April 7, 2011, in violation of the same statute; and one count

of possession of child pornography, in violation of 18 U.S.C. § 2252(A)(a)(5)(B).             The

government presented FBI Agent Christopher Hess to give expert testimony on historical cell-

site tracking analysis. Reynolds moved the district court to exclude Hess’s testimony or, in the

alternative, to grant a Daubert hearing “to determine the admissibility of the Government’s

proposed evidence related to cell-site tracking analysis.” The district court denied the motion.

Reynolds called Manfred Schenk as an expert witness to rebut Hess’s testimony, and the

government called Joseph Smyk, a Sprint-Nextel engineer, to rebut Schenk. Defense counsel

objected to Smyk’s rebuttal testimony on the ground that it was unexpected expert testimony, in

violation of Federal Rule of Criminal Procedure 16, but the district court concluded that Smyk

offered “classic rebuttal” testimony. Defense counsel sought to introduce two alibi witnesses in

the middle of trial, well after the alibi-witness-disclosure deadline. The government objected,

and the district court excluded the two witnesses from testifying.

   A jury convicted Reynolds on all three counts.         The district court applied a sentence

enhancement under the advisory guidelines for possession of over 600 child-pornography images

and sentenced Reynolds to 144 months of imprisonment.            The district court also ordered

Reynolds to pay a total of $26,500 in restitution to two identified child-pornography victims.

This appeal followed.



                                                 3
                                   II.     Standard of Review

    We review for abuse of discretion a district court’s evidentiary rulings concerning the

admission of expert testimony, rebuttal testimony, and undisclosed alibi-witnesses testimony.

Kumho Tire. Co. v. Carmichael, 526 U.S. 137, 142 (1999) (excluding expert testimony); United

States v. Rayborn, 495 F.3d 328, 343 (6th Cir. 2007) (admitting rebuttal testimony); United

States v. White, 583 F.2d 899, 902 (6th Cir. 1978) (excluding alibi witnesses). We will only

“find an abuse of discretion where [we] ha[ve] a definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant

factors.” United States v. Jones, 403 F.3d 817, 820 (6th Cir. 2005) (internal quotation marks and

citation omitted). We review the district court’s application of the sentencing guidelines de

novo, United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009), and its restitution awards for

abuse of discretion, United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 1999).

                                         III.   Discussion

                   A. Reliability of Historical Cell-Site Tracking Analysis

    Without holding a Daubert hearing, the district court admitted Agent Hess’s testimony that,

out of the four individuals who had access to the computer, Reynolds was the only one whose

cellphone connected with cell towers that were consistent with the caller being at the residence

during the relevant child-pornography download periods. Reynolds argues that the district court

abused its discretion because Hess’s historical cell-site tracking analysis was neither relevant nor

reliable.

    Testimony “concerning how cell phone towers operate constitute[s] expert testimony because

it involve[s] specialized knowledge not readily accessible to any ordinary person.” United States

v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011). The district court admitted Agent Hess’s



                                                 4
analysis as expert testimony. Federal Rule of Evidence 702 requires the district court to act as a

“gatekeeper” by “ensuring that an expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

A district court is not required to hold a Daubert hearing before admitting expert testimony.

Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000). In the absence of a Daubert hearing,

we review the record “to determine whether the district court erred in its assessment of the

relevance and reliability of the expert testimony.” Greenwell v. Boatwright, 184 F.3d 492, 498

(6th Cir. 1999).

   Evidence is relevant if it has a tendency to make a fact of consequence more or less probable

than it would be without the evidence.       Fed. R. Evid. 401.     Agent Hess’s testimony was

unquestionably relevant because it was probative as to whether each of four persons who

generally had access to a desktop computer was absent from the computer’s location while child

pornography was downloaded onto that computer.

   When evaluating the reliability of expert testimony, we focus “solely on principles and

methodology, not on the conclusions that they generate.” Daubert v. 509 U.S. at 595. The

Supreme Court listed factors that courts could use to assess the reliability of scientific or

technical expert testimony, including (1) whether the expert’s technique or theory can be, or has

been, tested in some objective sense; (2) whether the technique or theory has been subject to peer

review or publication; (3) the known or potential rate of error of the technique or theory when

applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which

the technique or theory has been generally accepted by the scientific community. Id. at 593–95.

   The Daubert factors do not “necessarily apply . . . in every instance in which the reliability of

scientific testimony is challenged,” and the district courts retains considerable discretion in



                                                5
assessing reliability. Kumho Tire, 526 U.S. at 141, 151; Fed. R. Evid. 702 advisory committee

notes (2000 Amendment). But this discretion does not permit the district court “to perform the

[gatekeeping] function inadequately.” Kumho Tire, 526 U.S. at 158–59 (Scalia, J., concurring).

Expert testimony is properly excluded if it “is connected to existing data only by the ipse dixit of

the expert. A court may conclude that there is simply too great an analytical gap between the

data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

    Cellular technology relies on radio waves to carry transmissions between a cellphone and a

cell site, also known as a cell tower. Each tower typically has three antennae, each responsible

for covering a 120-degree wedge. In the area surrounding Canton, Michigan, cell towers are

spaced approximately one to two miles apart. A cell site “sector” refers to the area contained

within a (usually) hexagonal array of cell towers. A cellphone generates “historical” cell-site

data when it places a call and connects to a specific cell tower.2 Such data includes the particular

cell-tower antenna to which the cellphone connected and the duration of the call.3 The “one-

location” tracking approach assumes that the cellphone connected to the closest tower because

that tower is most likely to produce the strongest signal. As most cell towers have three antennae

facing different directions, the data generally indicate the direction of the caller relative to that

tower—i.e., the 120-degree wedge serviced by the antenna—and thereby estimate the cell-site

sector from which the call originated. See Cisco, Wi-Fi Location-Based Services 4.1: Location

Tracking Approaches 2-1 (2008). While cellphones are designed to connect to the tower with

         2
           A cellphone also produces “real time” data by passively transmitting signals to every tower within range
when it is powered on, regardless of whether a call is made. Law-enforcement officers can triangulate a caller’s
location with real-time data with reasonable precision. See In re Application of U.S. for an Order for Prospective
Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448, 451 n.3 (S.D.N.Y. 2006). But cellphone
companies do not typically record real-time data. See Declan McCullagh, Feds Push for Tracking Cell Phones,
CNET News (Feb. 11, 2010), http://www.cnet.com/news/feds-push-for-tracking-cell-phones/.
         3
             A cell tower sometimes “hands off” a cellphone to another tower that produces a stronger signal during a
call. There may be multiple “hand offs” during a single call. When this occurs, the cellphone company records the
initial and the final cell towers that were connected to the cellphone, but it does not record intermediate connections.

                                                           6
the strongest signal, that tower might not actually be the closest because factors such as weather,

obstructions, and network traffic can cause a call to connect to a tower farther away.

FBI historical cell-site tracking does not account for these factors.

        Reynolds relies on United States v. Evans to argue that Agent Hess’s historical cell-site

analysis was not a reliable indicator of his past location. 892 F. Supp. 2d 949 (N.D. Ill. 2012).

In Evans, an FBI agent applied a technique to estimate the general location of the defendant’s

cellphone during a twenty-minute period in which the phone connected to two towers to place

nine calls. Id. at 952.

        To determine the location of a cell phone using the theory of granulization,
        Special Agent Raschke first identifie[d] (1) the physical location of the cell sites
        used by the phone during the relevant time period; (2) the specific antenna used at
        each cell site; and (3) the direction of the antenna’s coverage. He then estimate[d]
        the range of each antenna’s coverage based on the proximity of the tower to other
        towers in the area. This is the area in which the cell phone could connect with the
        tower given the angle of the antenna and the strength of its signal. Finally, using
        his training and experience, Special Agent Raschke predict[ed] where the
        coverage area of one tower will overlap with the coverage area of another.

Ibid. The Evans court excluded the cell-site tracking testimony as being unreliable under

Daubert because the testimony rested upon the questionable assumption that the defendant’s

phone connected to the closest tower in each call. 4 Id. at 955–57; cf. United States v. Sepulveda,

115 F.3d 882, 891 (11th Cir. 1997) (rejecting “cell site analysis offered by the government and

relied on by the district court” at a sentencing hearing because the analysis “contained inherent

uncertainties” as to which sector was the origin of calls that connected to a particular cell site).




        4
             The FBI’s cell-site analysis of Andrew’s cellphone records highlights the Evans court’s concern.
According to Agent Hess’s analysis, Andrew made “multiple calls” on May 12, 2011, using cell towers that were
“consistent with [his] employment address located at 6581 North Wayne Road, Westland, Michigan.” One call
connected to cell site 212-4, which is the second closest tower to that address and is approximately 1 mile away. A
second call connected to cell site 212-88, which is the fifth closest tower and is approximately 3 miles away.
Historical cell-site tracking analysis would have placed Andrew’s location at the time he made the second call in the
cell-site sector adjacent to the sector in which his place of employment was located.

                                                         7
        Several “courts have reached the opposite conclusion of the Evans Court regarding the

reliability of an agent’s methodology in estimating cell sectors where the agent used cell-phone

records.” United States v. Machado-Erazo, 950 F. Supp. 2d 49, 57 (2013) (quoting United States

v. Davis, No. 11-60285-cr, 2013 WL 2156659, at *6 (S.D. Fla. May 17, 2013)). These courts

relied primarily on other federal courts’ acceptance of historical cell-site tracking to conclude

that the technique is reliable. Id. at 56; see also United States v. Schaffer, 439 F. App’x 344, 346

(5th Cir. 2011); Davis, 2013 WL 2156659, at *6; United States v. Fama, No. 12-cr-186, 2012

WL 6102700, at *3 (E.D.N.Y. Dec. 10, 2012).

       However, “judges are not scientists and do not have the scientific training that can

facilitate the making of [scientific] decisions.”       Joiner, 522 U.S. 136, 148 (Breyer, J.,

concurring); see e.g., National Academies of Science, Strengthening Forensic Science in the

United States 161 (2009) (concluding that, although many courts accept microscopic hair

analysis, “testimony linking microscopic hair analysis to a particular defendant is highly

unreliable” and that there is “no scientific support for the use of hair comparisons for

individualization in the absence of DNA”). For this reason, Daubert identified the “scientific

community,” rather than federal courts, as the relevant group in which acceptance is an indicator

of a technique’s reliability. 509 U.S. at 593–94. But there is controversy as to whether cell-site

tracking can pinpoint a call’s origin to a specific cell-sector. See e.g., Cisco, Wi-Fi Location-

Based Services 4.1: Location Tracking Approaches 2-1 (2008) (“[T]he overwhelming drawback

of pure cell of origin positioning approaches continues to be coarse granularity. For various

reasons, mobile devices can be associated to cells that are not in close physical proximity,

despite the fact that other nearby cells would be better candidates.”).




                                                 8
        United States v. Schaffer, which lies at the heart of the anti-Evans citation chain,

concluded that using historical cell-site tracking analysis to determine a person’s past

whereabouts was reliable because the technique was “neither untested nor unestablished.” 439

F. App’x at 347. But it reached this conclusion on the basis of testimony that the technique had

been tested and accepted by the law-enforcement community, and not the scientific community.

An FBI expert testified that the “FBI had been successful at least 1000 times” in locating

suspects with historical cell-site tracking. Ibid. This claim appears to be precisely the sort of

“ipse dixit of the expert” testimony that should raise a gatekeeper’s suspicion. See Joiner, 522

U.S. at 146. While being successfully employed “1000 times” may sound impressive, the claim

is not subject to independent peer review and fails to establish an error rate with which to assess

reliability because there was no information on how many times the technique was employed

unsuccessfully.

        The Schaffer court also concluded that “the technique has been accepted by

approximately [sic] federal courts.” 439 F. App’x at 347. But the two federal cases it cited—

Sepulveda, 115 F.3d at 891, and United States v. Weathers, 169 F.3d 336 (6th Cir. 1999)—do not

support the proposition that historical cell-site tracking can reliably determine a caller’s location.

At a sentencing hearing where the court’s gatekeeper function under Rule 702 was not triggered,

Sepulveda rejected historical cell-site data as an unreliable indicator of the cell sector from which

a call originated. 115 F.3d at 891; Fed. R. Evid. 1101(d)(3). And Weathers simply did not

involve the use of historical cell-site data to estimate a person’s past location in any way.5




        5
           In Weathers, historical cell-site data was introduced to show that the defendant’s cellphone sent signals
from his known and undisputed location in Kentucky to a cell site in Indiana. 169 F.3d at 342. The court held that
this transmission established the “interstate commerce” element for the defendant’s murder-for-hire conviction.
Ibid.

                                                         9
       We need not resolve in this case the split among federal courts as to the reliability of

using historical cell-site analysis to determine a caller’s location as being in a specific cell-sector.

This is because Agent Hess used historical cell-site analysis to identify a cell-sector in which

callers were not. The Evans court held that the FBI’s tracking technique in that case was

unreliable because it rested upon the questionable assumption that each call connected to one of

the nearest towers.    892 F. Supp. 2d at 956.         Agent Hess’s analysis did not rely on this

assumption. Rather than placing any of the four callers at a specific sector, Agent Hess sought to

exclude each of them from the sector in which the Reynolds residence was located by showing

that their calls connected to cell towers that were far away from the residence. While the

assumption that every call connected to the nearest tower may (or may not) require “too great an

analytical gap between the data and the opinion proffered,” see Joiner, 522 U.S. at 146, it is

reliable to assume that a call would not connect to a tower that was many sectors away. United

States v. Benford, No. 2:09-cr-86, 2010 WL 2346305, at *3 (N.D. Ind. June 8, 2010) (admitting

cell-site analysis showing that a perjury defendant’s phone connected with a cell tower over

30 miles away from the place she testified to have been); see also United States v. Henderson,

564 F. App’x 352, 363 (10th Cir. 2014) (admitting lay testimony based on cellphone records that

a call did not originate from a particular place); United States v. Feliciano, 300 F. App’x 795,

800 (11th Cir. 2008) (same).

       Cell records in this case showed that Cook made calls during the child-pornography

download periods that connected to multiple cell towers in Dearborn and Inkster, all located

between 10 and 15 miles away from the Reynolds residence; Arica made calls that connected to

two cell towers in southwest Detroit, located approximately 20 miles away from the residence;




                                                  10
and Andrew made calls that connected to two towers that were 6 to 8 miles away.6 Agent Hess

assumed that each call was not diverted to a tower that was many sectors away to conclude that

these three individuals were absent from the residence during the relevant time periods. While

the assumption that a tower would not service a call made 10 or 20 miles away may be

challenged—and indeed it was challenged at Reynolds’s trial—such a challenge speaks to the

weight of the evidence, and not to its inherent reliability, because there are identifiable,

measurable, and scientifically accepted factors that determine a cell tower’s maximum coverage

range.7 See e.g., Jones, 918 F. Supp. 2d at 5 (holding that challenges to “assumptions about the

strength of the signal from a given cell tower . . . go to the weight of [the] testimony, not its

reliability”).

        Reynolds made calls that connected to two towers that were each approximately 1 mile

away from his residence. Agent Hess’s analysis concluded that, unlike the other three household

members, the cell-site data did not show that Reynolds was absent from the home. Importantly,

Agent Hess declined to draw a conclusion about Reynolds’s location on the basis of cell-site data

alone. The data was used to establish the absence of the other household members from

Reynolds’s residence.        The data was also used to show that Reynolds’s absence from the

residence could not be demonstrated, permitting an inference that Reynolds was the only one out

of four household members who was at the residence during the time child pornography was

downloaded onto a desktop computer in that residence. Hess’s technique thereby avoided the




        6
          While the cell towers that Andrew used were a shorter distance from the residence, his employer testified
that he was not at the residence during four of the download periods because he was at work.
        7
            Reynolds presented evidence that a typical cell tower could service a call 30 miles away but the
government countered with evidence that, because the cellphone company angled its cell-site antennae downward,
the actual coverage range was substantially shorter.

                                                        11
disputed assumption that each call connected to the nearest tower or originated from within a

specific cell sector.

        Therefore, even if we adopt Reynolds’s position that the nearest-tower assumption is

unreliable for the purpose of Rule 702, his argument fails because Hess’s conclusion as to

Reynolds’s whereabouts did not rely on that assumption. Accordingly, the district court did not

abuse its discretion in admitting historical cell-site tracking analysis to determine where

household members were not located during child-pornography download periods.

                            B. Admission of Rebuttal Testimony

    Reynolds identified Manfred Schenk as an expert whom he might call to rebut Agent Hess’s

testimony, but he did not expressly communicate an intention to call Schenk until after Hess’s

testimony had concluded. Reynolds ultimately did call Schenk as a rebuttal witness, and Schenk

disputed Hess’s testimony that cellphones usually connect to the nearest tower and that the two

towers near Reynolds’s home provided service ranges of 1.5 miles.         Specifically, Schenk

estimated that a cellphone could connect to a tower that was 30 miles away, which meant that

Arica could have been in Reynolds’s residence when she placed calls that connected to towers in

southwest Detroit, 18 miles away. In response to Schenk’s testimony, the government called

Sprint-Nextel engineer Joseph Smyk. Smyk testified that, though proximity is not the only

factor, it is the most important factor in determining the tower to which a cellphone call

connects. He further explained that, because Sprint-Nextel tilted its cell towers at a downward

angle, the coverage was far less than the 30 miles that Schenk projected. Smyk estimated that a

call originating from Reynolds’s residence has a 90% chance of being serviced by one of the two

closest towers.




                                              12
   Reynolds argues on appeal that Smyk was an improper rebuttal witness. Rebuttal testimony

is properly admitted to “rebut new evidence or new theories proffered in the defendant’s case-in-

chief, and is not limited by the fact that the plaintiff could have introduced the proffered

evidence in his case-in-chief.” United States v. Caraway, 411 F.3d 679, 683 (6th Cir. 2005)

(internal quotation marks omitted). Smyk’s evidence responded directly to Schenk’s testimony

as to the range of the cell towers and attendant implications and so was proper rebuttal evidence.

Further, Reynolds’s argument that the government planned all along to “backload” Smyk for a

“sneak attack” is unconvincing. See Appellant’s Br. at 43–44. Reynolds never confirmed in

advance whether he would call Schenk and so the government could not have reliably planned

on using Smyk to ambush Reynolds. Accordingly, the district court did not abuse its discretion

in admitting Smyk’s testimony.

                                 C. Exclusion of Alibi Witnesses

   Reynolds challenges the district court’s exclusion of two alibi witnesses—James Reynolds

(the defendant’s brother) and Larry Bullock—who were disclosed late, in violation of Federal

Rule of Criminal Procedure 12.1(a)(1). Rule 12.1(a)(1) allows the government to request from

the defendant a list of alibi witnesses for specified times and places, and the defendant must

provide the list “[w]ithin 14 days after the request, or at some other time the court sets.” Fed. R.

Crim. P. 12.1(a)(2). If a party fails to comply, “the court may exclude the testimony of any

undisclosed witness regarding the defendant’s alibi.” Id. at 12.1(e). To determine whether

exclusion is proper, the district court should consider (1) the amount of prejudice to the

government resulting from late disclosure; (2) the reason for nondisclosure; (3) the extent to

which nondisclosure harms were mitigated by subsequent events; (4) the weight of properly




                                                13
admitted evidence supporting the defendant’s guilt; and (5) other relevant factors.       White,

583 F.2d at 902.

   The government requested alibi witnesses from Reynolds on March 19, 2013 for the relevant

child-pornography download periods. Reynolds did not disclose James Reynolds and Larry

Bullock as alibi witnesses until June 26, 2013, after trial had begun. The government was

undoubtedly prejudiced by this late disclosure because it could not investigate the alibi, and

subsequent events did not mitigate this prejudice. Nor did Reynolds’s offer to make these

witnesses available for interview cure this prejudice. Trial had started, and the government had

already prepared (and partially presented) a case-in-chief that did not take these witnesses into

account.   Further, Reynolds’s proffered reasons for late disclosure—ambiguities in the

government’s notice and his desire to avoid disclosing “the nature of the charges” to family and

friend—were unconvincing.       The government’s notice contained precise time-and-place

information and so was not ambiguous. Discomfort at disclosing criminal charges to potential

alibi witnesses is an issue that every criminal defendant faces and so cannot excuse late

disclosure. Accordingly, the district court did not abuse its discretion in excluding James

Reynolds and Larry Bullock.

                                 D. Sentence and Restitution

   USSG § 2G2.2(b) provides for a five-level enhancement for child-pornography convictions

that involve 600 or more images. The district court applied this enhancement to Reynolds’s

sentence based on the fact that the FBI found 8,000 child-pornography images on his computer.

Reynolds argues that the government proved only 269 images because that was the number of

images downloaded during the specific dates and times identified by the FBI.          While the

government may have proved that Reynolds received only 269 unlawful images, in violation of



                                               14
18 U.S.C. § 2252(A)(a)(2), it also proved that he possessed over 8,000 images, in violation of 18

U.S.C. § 2252(A)(a)(5)(B), because that was the number of images found on his computer.

Therefore, the district court properly applied the enhancement.

   Reynolds also objects to the restitution awarded to two identified child-pornography victims

as being improperly determined through “an exercise in speculation.” Appellant’s Br. at 63.

Under 18 U.S.C. § 2259, a district court must award restitution to child-pornography victims in

the “full amount of the victim’s losses” proximately caused by the offense. Paroline v. United

States, 134 S. Ct. 1710, 1722 (2014). The restitution amount should reflect the degree to which

the individual’s crime contributed to the victim’s injuries. Id. at 1729 (“[V]ictims should be

compensated and . . . defendants should be held to account for the impact of their conduct on

those victims, but also . . . defendants should be made liable for the consequences and gravity of

their own conduct, not the conduct of others.”). The Supreme Court declined to provide a

mathematical formula to calculate restitution and instead provided a non-exhaustive list of

relevant factors for consideration by lower courts. Id. at 1728. Recognizing difficulties in this

approach, the Supreme Court asked lower courts to “do their best” in exercising their “discretion

and sound judgment.” Id. at 1728–29.

   The district court considered the Paroline factors and concluded that Reynolds owed $11,000

and $15,500 to the victims, respectively. The district court reached these figures by using $1,000

as a baseline restitution amount for each victim and adjusted upwards on the basis of the number

of images that Reynolds possessed and the graphic and sadistic nature of those images. United

States v. Reynolds, No. 12-cr-20843, 2014 WL 4187936, at *7 (E.D. Mich. Aug. 22, 2014). The

upward adjustment was greater for one of the victims because she had received fewer restitution

awards to date. Id at *6. While this may seem speculative to Reynolds, the Supreme Court gave



                                               15
the district court broad discretion to calculate restitution with limited guidance. The district

court indeed did “do its best” in following that guidance, and Reynolds presents no evidence to

the contrary. Accordingly, the district court did not abuse its discretion in awarding restitution.

                                        IV.     Conclusion

   We AFFIRM Reynolds’s convictions, sentence, and restitution.




                                                 16
