14-2636-cr (L)
United States v. Miner

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 21st day of September, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                -v-                                         No. 14-2636-cr, 14-3757-cr

GARY MINER,

            Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:             Molly Corbett, for Lisa Peebles, Federal Public Defender,
                                     Albany, New York.


For Appellee:                        Steven D. Clymer, Richard D. Belliss, for Richard S.
                                     Hartunian, United States Attorney for the Northern District
                                     of New York, Syracuse, New York.




                                                1
      Appeal from the United States District Court for the Northern District of New York
(D’Agostino, J).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED IN PART and

VACATED AND REMANDED in part.

       Defendant-Appellant Gary Miner appeals from a September 26, 2014 amended judgment

of conviction by the United States District Court for the Northern District of New York

(D’Agostino, J.). Miner pleaded guilty to one count of receiving child pornography, in violation

of 18 U.S.C. § 2252A(a)(2), (b)(l), and one count of possessing child pornography, in violation

of 18 U.S.C. § 2252A(a)(5)(B), (b)(2), and was sentenced principally to ten years in prison. On

appeal, Miner challenges only the $5,065 in restitution that he was ordered to pay to two

victims—known under the pseudonyms “J_ Blonde” and “Andy”—depicted in the pornography

that he possessed. We assume the parties’ familiarity with the relevant facts, procedural history

of the case, and issues presented for review.

       Section 2259 of Title 18 of the U.S. Code requires that district courts order defendants

convicted of crimes involving the sexual exploitation and other abuse of children to pay a victim

of those offenses “the full amount of the victim’s losses.” 18 U.S.C. § 2259(b)(l). A victim’s

losses include all costs incurred for, inter alia, medical services, therapy, lost income, and

attorneys’ fees, as well as “any other losses suffered by the victim as a proximate result of the

offense.” Id. § 2259(b)(3)(A)-(F). We “review restitution orders ‘deferentially’ and will reverse

only for abuse of discretion.” United States v. Paul, 634 F.3d 668, 676 (2d Cir. 2011) (quoting

United States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009) (per curiam)).

       At the outset, we reject Miner’s contention that the district court failed to adequately

disaggregate the losses caused by the victims’ initial abuses from the “losses, including the costs



                                                  2
of psychiatric treatment and lost income, that stem from the ongoing traffic in [their] images as a

whole.” Paroline v. United States, 134 S. Ct. 1710, 1722 (2014). The district court here explicitly

found that “the general losses sought by the Government for J_Blonde and Andy are sufficiently

disaggregated from the harm caused by their respective initial abusers to satisfy Paroline’s

proximate causation requirement.” United States v. Miner, No. 14-cr-33 (MAD), 2014 WL

4816230, at *8 (N.D.N.Y. Sept. 25, 2014). Although Miner complains that the district court

relied on psychological evaluations that “included the original victimization in their evaluations

of the victims,” Appellant’s Br. 36, both reports appear to have distinguished the original abuse

from the ongoing trafficking of the image. And while Miner faults the district court for not

“reveal[ing] the amount of contribution the original had in the loss amount or the amount from

which the contribution was disaggregated,” id., neither Paroline nor the restitution statute

mandate this form of detailed accounting.

       Next, we conclude that the district court’s restitution awards adequately accounted for

Miner’s “relative role in the causal process that underlies the victim’s general losses.” Paroline,

134 S. Ct. at 1727. The district court calculated the awards here by picking the median of all

restitution orders previously awarded to the two victims. The district court adopted this approach

from a pre-Paroline First Circuit case, United States v. Kearney, which affirmed an average-

award approach after reasoning that “[t]here is nothing improper about considering restitution

awards in other similar circumstances in fashioning a restitution award.” 672 F.3d 81, 100–01

(1st Cir. 2012). The district court here departed from the approach used in Kearney by looking to

the median, rather than the mean, of previous awards, in order to “avoid[] ‘[t]he mean’s

disadvantage [in] that a few unusually high or low figures in the data set can skew the result

upward or downward.’” Miner, 2014 WL 4816230, at *12 (second and third alterations in




                                                 3
original) (quoting Michael Rustad & Thomas Koenig, The Supreme Court and Junk Social

Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91, 146 (1993)).

       Although this median-award approach may not be appropriate in every case, here that

approach yielded awards—$2,000 to J_Blonde and $3,065 to Andy—that are both reasonable

and just. The Supreme Court has emphasized that the calculation of restitution “cannot be a

precise mathematical inquiry and involves the use of discretion and sound judgment,” and has

warned that any precise formula “would unduly constrain the decisionmakers closest to the facts

of any given case.” Paroline, l34 S. Ct. at 1728. A review of the record reveals that the district

court—the “decisionmaker[] closest to the facts of [the] case”—fully complied with its

obligations under Paroline, repeatedly pushing back against the restitution requests made by the

government and the victims, requesting new data to inform its decisionmaking, and performing

“its own independent research [to] identif[y] a method which would allow for a reasonable

determination of appropriate restitution,” Miner, 2014 WL 4816230, at *11. These efforts

resulted in a restitution award that was neither “excessive and disproportionate” nor “trivial,”

Paroline, l 34 S. Ct. at 1726, 1728, and we have little trouble concluding that the district court

did not abuse its discretion here.

       Finally, we conclude that the district court erred by ordering immediate payment of the

restitution, rather than setting an extended payment schedule. The record reflects that Miner has

few to no assets and significant outstanding debts. Given Miner’s indigence, it appears that the

“interest of justice,” see 18 U.S.C. § 3572(d)(1), requires that Miner’s restitution obligations be

extended via a payment schedule. Accordingly, although Miner did not press this argument

below, we conclude that requiring Miner to make immediate payment constitutes plain error.

See United States v. Mammedov, 304 F. App’x 922, 927–28 (2d Cir. 2008) (finding plain error




                                                  4
where restitution order required immediate payment even though the presentence report

indicated that the defendant “lack[ed] financial assets” and the district court declined to impose a

fine due to the defendant’s inability to pay).

       We therefore VACATE the district court’s restitution order insofar as it requires

immediate payment, and REMAND for the district court to fashion a payment schedule in

accordance with the factors laid out in 18 U.S.C. § 3664(f)(2). The district court’s restitution

order is otherwise AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




                                                   5
