                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10175

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00434-AWI-1

  v.
                                                 MEMORANDUM *
EPHRAIM JOE AGUIRRE, II,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                           Submitted February 16, 2011**
                             San Francisco, California

Before: TALLMAN, CALLAHAN, and N.R. SMITH ***, Circuit Judges.




        *
             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).
        ***
             Due to the death of the Honorable David R. Thompson, the Honorable
N. Randy Smith, United States Circuit Judge for the Ninth Circuit, has been drawn
to replace him on this panel. Judge N.R. Smith has read the briefs and reviewed
the record.
      Ephraim Aguirre, II, appeals his sentence and an order of restitution

following his guilty plea to two counts of receiving or distributing child

pornography in violation of 18 U.S.C. y 2252(a)(2). We have jurisdiction under 18

U.S.C. y 3742 and 28 U.S.C. y 1291. We affirm Aguirre's sentence. However, we

vacate and remand the order of restitution because, under the standard articulated

in United States v. Kennedy, ÁÁ F.3d ÁÁ, No. 10-30065, 2011 U.S. App. Lexis

14155, at *34-37 (9th Cir. July 11, 2011), the government failed to carry its

burden of proving by a preponderance of the evidence that Aguirre's offense

proximately caused ü3,000 in losses to the victims Amy and Vicµy.1

      On appeal, Aguirre raises challenges to a five-level sentencing enhancement

applied to him, the overall length of his sentence in light of the y 3553(a) factors,

and the restitution ordered. We review the sentence imposed by the district court

for an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc). We review the legal basis for the restitution order de novo.

United States v. Laney, 189 F.3d 954, 964-65, 966 (9th Cir. 1999).

      1. Aguirre challenges the district court's imposition of a five-level

enhancement for 'engag[ing] in a pattern of activity involving the sexual abuse or



      1
        Because the parties are familiar with the facts, we repeat them here only as
necessary to the disposition of the case.

                                           2                                     10-10175
exploitation of a minor,' based on Aguirre's unprosecuted sexual relationship with

a 17-year-old former student, which Aguirre contends was consensual. 18 U.S.C.

y 2G2.2(b)(5) (providing for enhancement). The enhancement applies if a

defendant has engaged in two or more instances of µnowingly persuading,

inducing, enticing, or coercing a minor to engage in any sexual activity for which a

person can be charged with a criminal offense. Id. at cmt. n.1; 18 U.S.C. y 2422.

      Here, Aguirre admitted that he engaged in sexual acts with the student,

including intercourse, which constitutes a crime of sexual assault under California

law. Cal. Penal Code y 261.5(c). Although the student stated that she 'came on'

to Aguirre and consented to the acts, she was legally incapable of consenting.

Donaldson v. Dep't of Real Estate, 36 Cal. Rptr. 3d 577, 589 (Cal. Ct. App. 2005).

Moreover, Aguirre's own statements demonstrate that he persuaded or enticed her

to perform the sexual acts. Thus, the district court's application of a five-level

enhancement for a pattern of sexual abuse or exploitation of a minor was not an

abuse of discretion.

      2. Aguirre also contends that his sentence, although within the Guidelines

range, is unreasonable in light of the y 3553(a) sentencing factors. The district

court began its discussion of the y 3553(a) factors by explaining that it did not

believe that Aguirre should receive the maximum sentence, in part because of his


                                           3                                    10-10175
cooperation. The district court also acµnowledged that it tooµ into account the fact

that 'Aguirre had a very difficult childhood and upbringing, which are contributing

factors to his conduct.' However, the court found that the other y 3553(a) factors

weighed in favor of a higher sentence within the range. Aguirre downloaded and

exchanged a significant amount of child pornography. Even if some of Aguirre's

statements were fantasy, Aguirre's attraction to children between 9 and 16, his

diagnosis as a pedophile, and the fact that he acted on his attractions by having a

sexual relationship with a minor all indicate that Aguirre is a danger to the public.

      The district court sentenced Aguirre to 30 years imprisonment, which is

substantially below the Guidelines range of life, and well within the statutory range

of 10 to 40 years. The district court reasonably evaluated the y 3553(a) factors,

and the resulting sentence is not an abuse of discretion.

      3. Aguirre challenges the district court's order of ü3,000 in restitution to

Amy and Vicµy, whose images of sexual abuse as children were found among his

collection of child pornography. Under 18 U.S.C. y 2259, the mandatory

restitution statute for crimes involving the sexual exploitation and abuse of

children, the district court was required to award the full losses that Aguirre's

offense proximately caused to any identified victims. The government must prove

causation and the amount of losses by a preponderance of the evidence. Laney,


                                           4                                    10-10175
189 F.3d at 965. Aguirre asserts that the award is unsupported because the

government failed to prove the amount of harm, if any, that his own possession of

Amy's and Vicµy's images caused them, given that their victim statements address

only the harm they have suffered in aggregate from the creation, circulation, and

possession of their images by countless individuals.

      In Kennedy, we concluded that generalized evidence of Amy's and Vicµy's

losses failed to establish a causal chain between a defendant's possession of child

pornography and any of the victims' losses. 2011 U.S. App. Lexis 14155, at *35.

The generalized evidence failed to establish that Amy and Vicµy were aware of the

defendant's offense, or that they suffered losses separate from those incurred as a

result of everyone who viewed their images. Id. Accordingly, we concluded that

the district court did not have a reasonable basis upon which to calculate an award

of restitution. Id. at *38-40.

      Under the Kennedy standard, here, the government has similarly failed to

establish the requisite causal chain between Aguirre's offense and Amy's or

Vicµy's losses. Thus, we vacate the order of restitution and remand for further

proceedings consistent with this disposition and our opinion in Kennedy.

      AFFIRMED in part; VACATED and REMANDED in part.




                                          5                                    10-10175
                                                                            FILED
United States v. Aguirre, No. 10-10175                                      AUG 18 2011

                                                                         MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, with whom Judges Tallman and N.R. Smith join,RT OF AP PE A LS
                                                               U.S . CO U




specially concurring:

      Our review of the restitution order is controlled by United States v. Kennedy,

ÁÁ F.3d ÁÁ, No. 10-30065, 2011 U.S. App. Lexis 14155, at *34-37 (9th Cir. July

11, 2011), but if I were writing on a blanµ slate, I would affirm because ü3,000 is a

reasonable assessment of the victims' losses attributable to Aguirre's offense.

      As the district court indicated here, and we noted in Kennedy, it is difficult

to determine the extent to which a defendant's possession of Amy's and Vicµy's

images can be said to have proximately caused their trauma and need for

counseling because countless individuals, most of whom will never be discovered,

have contributed to their need for lifetime counseling by exchanging their images.

In Kennedy, we focused on the government's failure to establish that Amy and

Vicµy needed additional counseling after finding out that the defendant possessed

their images. Id. at *35, 39. In my view, this focus sets too narrow of a causation

standard in light of the law's approach to issues of concurrent independent causes,

as well as Congress's intent to fully compensate victims of child pornography.

      In general, courts have recognized that 'where there are concurrent

independent causes, our law provides one cannot escape responsibility for his
[actions] on the ground that identical harm would have occurred without it. The

proper rule for such situations is that the defendant's conduct is a cause of the

event because it is a material element and a substantial factor in bringing it about.'

Mitchell v. Gonzales, 819 P.2d 872, 876 (Cal. 1991) (alteration marµs omitted); see

also Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1129

(D.C. Cir. 2004) ('Such a case, in which application of a 'but for' standard to joint

tortfeasors could absolve them all, is precisely the one for which courts generally

regard 'but for' causation as inappropriate.'). Each concurrent cause can be said to

be a substantial factor if it was independently sufficient to cause the harm.

Restatement (Second) of Torts, y 432(2).

      Absolving Aguirre of liability simply because he is one of countless

individuals who have contributed to Amy's and Vicµy's losses would frustrate

Congress's goal 'to ensure that the loss to crime victims is recognized, and that

they receive the restitution that they are due' and 'to ensure that the offender

realizes the damage caused by the offense and pays the debt owed to the victim.'

S. Rep. No. 104-179, at 12 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 925. The

causation standard we set in Kennedy may insulate all but the producer and original

distributor of child pornography from liability for the victims' damages, even

though the possession and trading of the victims' images has wrought separate and
more long-term losses, and even though Congress intended to reach such losses by

including possession crimes as part of the mandatory restitution scheme.

      The victim statements establish that Amy's and Vicµy's µnowledge of any

individual possessing or trading their images causes them trauma, invades their

privacy, and prolongs their recovery, all of which contribute to their lifetime

counseling costs. Each individual adds to the cumulative trauma from the

widespread dissemination of the images, but also causes fresh trauma: as Vicµy

describes, 'it feels liµe I am being raped by each and every one of them.' This

circumstantial evidence supports the inference that Aguirre's offense was

independently sufficient to cause a portion of Amy's and Vicµy's losses.1

      The district court's order of ü3,000 would cover approximately 18 to 20

counseling sessions for Amy and Vicµy and is a portion of their losses fairly

attributable to Aguirre's offense.

      Thus, if not bound by Kennedy, I would affirm the restitution order.




      1
         Moreover, it is foreseeable that Aguirre's possession of the images of
Amy's and Vicµy's sexual abuse as children would result in their need for some
amount of counseling. Although Aguirre may have believed he was committing a
victimless crime when he downloaded and possessed the images, common sense
requires the recognition that Amy and Vicµy would feel traumatized, violated,
exploited, humiliated, and vulnerable if they discovered that he had these intimate
images of their sexual abuse as children.
