189 F.3d 954 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.PAUL FREDERICK LANEY, Defendant-Appellant.
No. 98-10032
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted February 12, 1999--San Francisco, CaliforniaDecided August 30, 1999

[Copyrighted Material Omitted][Copyrighted Material Omitted]
H. David Grunbaum, Assistant Federal Public Defender, San  Jose, California, for the defendant-appellant.
D. Anthony West, Assistant United  States Attorney, San Jose, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California;  James Ware, District Judge, Presiding.  D.C. No. CR-96-20113 JW.
Before: Phyllis A. Kravitch,* Stephen  Reinhardt, and Thomas G. Nelson, Circuit Judges.
Opinion by Judge Kravitch;  Concurrence by Judge T.G. Nelson; Partial Concurrence and Partial  Dissent by Judge Reinhardt
KRAVITCH, Circuit Judge:


1
Defendant-appellant Paul Frederick Laney pled guilty to  three counts of conspiring to engage in and engaging in activities relating to the sexual exploitation of children. The district  court sentenced him to 81 months in prison and ordered him  to pay restitution to one of the conspiracy's victims. Laney's  appeal of the sentence and the restitution order raises several  issues concerning the United States Sentencing Guidelines  ("U.S.S.G." or the "Guidelines") and the restitution statutes.

I.

2
In late 1995, Laney and several other men began meeting  regularly in an Internet chat room called Kids Sex Pics to discuss and trade child pornography.1 Laney also had direct conversations by e-mail with one of Kids Sex Pics' members,  Ronald Riva. In early 1996 Riva and a few of the other Kids Sex Pics participants created a private, invitation-only chat  room called the "Orchid Club." The Orchid Club eventually grew to include sixteen members. Laney, the last to join,  joined the club in February 1996. Orchid Club participants  told each other stories about their sexual contact with minors  and sent each other, via the Internet, digital files containing  pornographic photographs and videos of children. Laney  claims that he thought that the men were exchanging fantasies  and publicly available pornography, rather than true stories  and "homemade" images. Laney did, however, make a sexually explicit videotape of himself with two female children of  his neighbors who were ages ten and eight ("Jane Does Two  and Three"), and sent images from the tape to Riva. Laney  claims that he refused to send the photos to any other Orchid  Club member and asked Riva not to share them. Riva nevertheless forwarded the images to other members of the Orchid  Club.


3
For several years Riva regularly had been molesting Jane  Doe One, a friend of his young daughter's. In January 1996,  Riva told other members of the Orchid Club that Jane Doe  One, then age ten, was willing to be photographed performing  sexual acts. Some of the members requested that Jane Doe  One perform "live" over the Internet. Laney was not a party  to these conversations. On March 16, 1996, Riva asked Laney  for advice on how to teach a ten-year-old girl how to insert  a vibrator. Laney sent Riva suggestions on how best to perform this act.


4
An "on-line molestation" of Jane Doe One occurred on  April 1, 1996. Riva and another Orchid Club member, Melton  Lee Myers, videotaped Jane Doe One engaging in various sexual acts, including having a vibrator inserted into her  vagina. They immediately transmitted the images over the  Internet to other members, who replied with requests for further sexual acts. Laney did not participate in the on-linemolestation or know about it beforehand. Riva sent him copies of the images of Jane Doe One on April 6, 1996, and he  and Laney discussed them.


5
After one of Riva's victims complained, the police arrested  Riva and Myers. A search of Riva's computer files led to  Laney's arrest in June 1996. Laney immediately agreed to  cooperate with the government's investigation; his cooperation helped the government identify at least four other participants in the conspiracy. A grand jury returned a 24-count  indictment, and a substantially similar superseding indictment, against Laney and fifteen co-defendants, charging various violations relating to the sexual exploitation of children.  The indictment listed three charges against Laney: Count One  (conspiracy to sexually exploit children in violation of 18  U.S.C. SS 2251(a), (d)); Count Two (conspiracy to engage in  certain activities relating to the sexual exploitation of children  in violation of 18 U.S.C. S 2252(a), (b)(1)); and Count Eighteen (distribution of visual depictions of minors engaged in  sexually explicit conduct in violation of 18 U.S.C.  S 2252(a)(1)). Laney pled guilty to all three counts without  reaching an agreement with the government on sentencing.


6
In a judgment dated December 22, 1997, the district court  sentenced Laney to 81 months' incarceration. Three aspects of the sentence are relevant to this appeal. First, the court  increased Laney's base offense level for Counts Two and  Eighteen by five levels for "distribution" pursuant to section  2G2.2(b)(2) of the Guidelines.2 Second, the court included the  on-line molestation of Jane Doe One as "relevant conduct" to  Count One under U.S.S.G. S 1B1.3(a), which increased  Laney's Combined Offense Level by one level under  U.S.S.G. S 2G2.1(c) and Chapter 3, Part D. Third, the court  awarded Laney a downward departure of five levels for substantial assistance to the government pursuant to U.S.S.G.  S 5K1.1. The government had requested a five-level departure  at sentencing, while Laney requested a ten-level departure.  The district court denied Laney's request for an evidentiary  hearing on the extent of departure. In addition, pursuant to 18  U.S.C. S 2259, the district court ordered Laney and five other  Orchid Club members jointly and severally to pay $60,000  restitution to Jane Doe One. This amount included the cost of  psychological treatment that Jane Doe One and her family  expected to need in the future as a result of the defendants' crimes.


7
Laney appeals his sentence and the restitution order. Finding no error, we affirm.

II.
A.

8
The district court increased Laney's base offense level by five levels for "distribution" of child pornography pursuant to  U.S.S.G. S 2G2.2(b)(2).3 Laney argues that "distribution," for  purposes of section 2G2.2(b)(2), means distribution for pecuniary gain. Because he sent pornographic images only to Riva  and had no intention of receiving any financial compensation  for the images, he contends, the district court erred by imposing the five-level increase.


9
We review a district court's interpretation and application  of the Guidelines de novo. See United States v. Bailey, 139  F.3d 667, 667 (9th Cir. 1998). This circuit has not addressed  the question of whether a defendant who delivers child pornography for non-pecuniary reasons engages in "distribution"  for purposes of section 2G2.2(b)(2). The circuits that have  considered this issue are in conflict. In United States v. Black,  116 F.3d 198, 202-03 (7th Cir.), cert. denied , _______ U.S. _______,  118 S. Ct. 341 (1997), the Seventh Circuit held that section  2G2.2(b)(2) only applies to transactions entered into for pecuniary gain. The court noted, however, that the definition of  "pecuniary gain" included "the possibility of swaps, barter, in-kind transactions, or other valuable consideration." Id. at  203.4 Four circuits, on the other hand, have refused to confine  section 2G2.2(b)(2)'s applicability solely to acts committed  for monetary gain. See United States v. Horn, 187 F.3d 781, 791(8th Cir. Aug. 4, 1999); United States v. Lorge, 166 F.3d 516, 518-19 (2d Cir.), cert. denied, _______ U.S.  _______, 119 S. Ct. 1372 (1999); United States v. Hibbler, 159 F.3d 233, 237-38 (6th Cir. 1998), cert. denied , _______ U.S. _______,  119 S. Ct. 1278 (1999); United States v. Canada, 110 F.3d 260, 263-64 (5th Cir.) (per curiam), cert. denied, _______ U.S.  _______, 118 S. Ct. 195 (1997).


10
"This court applies the rules of statutory construction  when interpreting the Sentencing Guidelines." United States  v. Fellows, 157 F.3d 1197, 1200 (9th Cir. 1998), petition for  cert. filed, _______ U.S.L.W. _______ (U.S. June 4, 1999) (No. 989780). Under these rules, "we begin with the language of the  statute itself, looking not only to the disputed provision, but  also to the provisions of the whole law, and to its object and  policy." United States v. Butler, 74 F.3d 916, 922 (9th Cir.  1996) (internal quotation omitted), cited in Fellows, 157 F.3d  at 1200. "Ultimately, the goal is to ascertain the intent of the  drafters." Fellows, 157 F.3d at 1200. Examining the plain language of the Guidelines in accordance with these principles,  we conclude that "distribution" under section 2G2.2(b)(2)  requires an element of pecuniary gain. We agree with the  Black court's suggestion, however, that this element may exist  in a criminal transaction even if no cash has changed hands,  so long as the offender acted to acquire something with economic value (such as goods or services).


11
Our first reason for concluding that section 2G2.2(b)(2)  requires an element of pecuniary gain lies in Application Note  1 to section 2G2.2, which states in pertinent part that  " `[d]istribution,' as used in this guideline, includes any act  related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute."  U.S.S.G. S 2G2.2, comment. (n.1). Because the word "includes," as used in the Guidelines, is not exclusive, see  U.S.S.G. S 1B1.1, comment. (n.2), the "act[s] related to distribution for pecuniary gain" described in Application Note 1 do  not constitute the entire universe of acts that count as  "distribution" for purposes of section 2G2.2. Application  Note 1 helps us define that universe, however, by mentioning  acts of production, transportation, and possession that are  related to distribution for pecuniary gain, while omitting identical acts that are related to delivery for non-pecuniary reasons.  This distinction suggests that section 2G2.2(b)(2) covers only  those acts of delivery, as well as delivery's supporting acts of  production, transportation, and possession, that the defendant  performs for pecuniary reasons. If the Guidelines' drafters  intended section 2G2.2(b)(2) to penalize the person who gratuitously gives a single pornographic image to another person  as severely as the commercial retailer of child pornography,  we see no convincing reason why they would not similarly  have chosen to penalize the former person's acts of production, transportation, andpossession. See Black , 116 F.3d at  202 (stating that government's interpretation of Application  Note 1 to mean that section 2G2.2(b)(2) covers non-pecuniary  distributions "strikes us as strained"). But see Lorge, 166 F.3d  at 518 (interpreting word "includes" in Application Note 1 to  mean that section 2G2.2(b)(2) covers deliveries motivated by  non-pecuniary goals); Hibbler, 159 F.3d at 237 (same);  Canada, 110 F.3d at 263 (same).


12
The structure of U.S.S.G. S 2G3.1 ("Importing, Mailing, or  Transporting Obscene Matter"), a slightly differently worded  Guideline discussed by the special concurrence, supports our conclusion that the Guidelines' drafters intended to impose  the same punishment on those who deliver child pornography  for profit and those who commit other acts, such as transportation, to further for-profit deliveries.5  Section 2G3.1's structure parallels that of Section 2G2.2, as we interpret it: every  offender who delivers, or commits acts assisting with the  delivery of, pornography for profit receives an increase of five  or more levels. The special concurrence compares these two  Guidelines and concludes that although the Commission  expressed its "clear choice to give heavier sentences to those  who engage in child pornography offenses" by imposing a  particularly heavy punishment on those who deliver child pornography gratuitously, it for some reason chose to spare those  who possess, transport, or produce child pornography in order  to deliver it gratuitously. Because we see no reason for the  Commission to draw this distinction, we conclude that  although Section 2G3.1 and Section 2G2.2's wording differs  slightly, the two Guidelines express the same goal.


13
Second, as the Seventh Circuit pointed out in Black, section  2G2.2(b)(2) "measures the number of levels of an enhancement by the `retail value of the material,' which implies a  transaction for pecuniary gain." Black, 116 F.3d at 202. The  Lorge court read the subsection differently, stating that the  drafters included this language to ensure that the largest-scale  distributors would receive higher sentences "tied to the value  of the distributed material, not to modify the meaning of the  term `distribution.' " Lorge, 166 F.3d at 519. We are not persuaded that, as the Lorge court suggests, the drafters saw a need to distinguish between a commercial pornographer who  sells $40,000 worth of material and one who sells $80,000  worth, but not between a person who gives away a magazine  and one who markets $40,000 worth of magazines. We treat  the plain language of section 2G2.2(b)(2) as evidence of the  Guidelines' drafters' belief that a "distribution " enhancement  requires a finding of a profit motive.6


14
Finally, our examination of the overall punishment scheme  laid out in section 2G2.2 shows that section 2G2.2(b)(2) targets those who derive material benefit from their exploitation  of children, such as commercial traffickers in child pornography. Section 2G2.2 assigns a base offense level of 15 to six  types of offenses: trafficking, receipt, transportation, shipping,  advertising, and possession with intent to traffic of material  involving the sexual exploitation of a minor. If simple delivery of a piece of child pornography to one other person could trigger section 2G2.2(b)(2)'s five-level "distribution" increase, then only those offenders who merely received or  advertised child pornography could receivethe base offense level; all the other offenses covered by section 2G2.2 would  qualify automatically for the five-level increase. Section  2G2.2's treatment of other specific offense characteristics  reinforces our conclusion that subsection (b)(2) does not  apply to a gratuitous delivery of pornographic material; subsection (b)(2)'s five-level increase is equal to that imposed for  "a pattern of activity involving the sexual abuse or exploitation of a minor," U.S.S.G. S 2G2.2(b)(4), and one level  greater than that imposed for "offense [s] involv[ing] material  that portrays sadistic or masochistic conduct or other depictions of violence," id. S 2G2.2(b)(3). The most coherent interpretation of section 2G2.2 assigns a base offense level of 15  to all criminals who send and receive any amount of child  pornography for any reason, while visiting a particularly  heavy punishment upon those who profit from the exploitation of children. See Deane, 914 F.2d at 14 (concluding that  section 2G2.2's base offense level applies to a "passive" violator who mailed three child pornography magazines to  another person; relying on fact that subsection (b)(2) explicitly provided for an increased offense level for those who  engaged in the "active conduct" of distribution for pecuniary  gain).7


15
Having determined that section 2G2.2(b)(2) requires an  element of "pecuniary gain," we turn to the question of the  meaning of that term. "Pecuniary" means "consisting of  money or that which can be valued in money, " Black's Law  Dictionary 1131 (6th ed. 1990) (emphasis added). One who  acts to receive valuable property, like one who seeks to  receive cash, therefore acts for "pecuniary gain. " See Black,  116 F.3d at 202-03 ("[P]ecuniary gain is a broad concept  itself, and it does not exclude the possibility of swaps, barter,  in-kind transactions, or other valuable consideration."). Cf.  U.S.S.G. S 2Q2.1, comment. (n.1) (" `For pecuniary gain'  means for receipt of, or in anticipation of receipt of, anything  of value, whether monetary or in goods or services. Thus,  offenses committed for pecuniary gain include both monetary  and barter transactions."). A person who delivers pornography  in order to receive other pornography that has economic value acts for "pecuniary gain" and therefore engages in  "distribution" for purposes of section 2G2.2(b)(2). See, e.g.,  United States v. Muick, 167 F.3d 1162, 1166 (7th Cir. 1999)  (finding that defendant had acted for "pecuniary gain," and  therefore was subject to distribution increase under section  2G2.2(b)(2), because he had received pornographic computer  files, as well as money, in exchange for pornography, and had  set up his computer system to "require a computer user to  `barter' computer files before permission to download [defendant's] child pornography was granted"). If, as the district  court found, Laney and his coconspirators expected to receive  goods with "retail value"--other pornographic images--in  return for the child pornography they provided to one another,  the court did not err in imposing the five-level distribution  increase.


16
We review the district court's findings of fact in the  sentencing phase for clear error. See United States v.  Gutierrez-Hernandez, 94 F.3d 582, 583 (9th Cir. 1996). The  government must prove facts supporting the enhancement of  a sentence by a preponderance of the evidence. See United  States v. Watts, 519 U.S. 148, 156-57, 117 S. Ct. 633, 637-38  (1997). The record suggests that Laneyand his coconspirators  had multiple motivations for transferring images to one  another. On the one hand, Laney clearly never expected to  receive any money for his photographs of Jane Does Two and  Three; he apparently sent them only to Riva and told Riva not  to send them to any other Orchid Club member. Moreover,  much of Laney's correspondence with Riva and other Orchid Club members is more in the nature of friends exchanging tips  on a shared "hobby" than merchants carrying out a quid pro  quo exchange. Although Laney told one correspondent that he  would send his most private pictures only to those who sent  pictures to him ("nope . . sorry . . the index file is very private  . . . only for those that have traded with me . . . im am very  particular about it . . . don't want them getting out"), his  refusal to send images to those who did not provide them may  have stemmed from fear of being caught ("i've been on irc's  trading for about almost 3 years . . . and pretty much just trade  with about 12 people that I've known for a long time. . . and  even they don't get some of the private pics"). On the other  hand, it appears that Orchid Club members had to provide  something to the other members--images or stories--in order  to enjoy the chief "benefit" of the club, access to generally  unavailable child pornography. Certain conversations between  members of the club also showed an element of barter. At one  point, for example, Riva told Laney that he would "get some  vids shot soon . . . maybe trade copies." Because the record  shows both pecuniary and non-pecuniary reasons for sending  the images, we cannot say that the district court erred in  imposing the five-level "distribution" increase pursuant to  section 2G2.2(b)(2).

B.

17
Laney argues that the district court should not have  treated the on-line molestation of Jane Doe One as "relevant  conduct" as to Laney under U.S.S.G. S 1B1.3. Relevant conduct used to determine a base offense level under the Guide- lines includes "in the case of a jointly undertaken criminal  activity . . . all reasonably foreseeable acts and omissions of  others in furtherance of the jointly undertaken criminal  activity." U.S.S.G. S 1B1.3(a)(1)(B). "[T]he scope of the  criminal activity jointly undertaken by the defendant . . . is not  necessarily the same as the scope of the entire conspiracy, and  hence relevant conduct is not necessarily the same for every  participant." Id., comment. (n.2). Although Laney did not  have advance notice of or participate in the on-line molestation, the act was both reasonably foreseeable to him and "in  furtherance of the jointly undertaken criminal activity," as  section 1B1.3(a)(1)(B) requires. The Orchid Club existed so  that members could share child pornography and advise one  another on how to produce it. Laney knew that other members  of the Orchid Club were making sexually explicit videotapes  and other images of minors; he apparently joined the club and  entered into private correspondence with Riva partly in order  to receive these images; and he had produced such images  himself. He therefore could foresee that other Orchid Club  members would exploit children to make such images. More  specifically, Laney could foresee the identity of the victim  and some of the details of the exploitation: he knew that Riva  had molested and intended to continue to molest Jane Doe  One, and he had given Riva advice on how to perform particular sexual acts on her. The district court therefore did not err  in finding that the on-line molestation constituted relevant  conduct under section 1B1.3.8

C.

18
Laney argues that the district court erred, when determining  the extent to which it would depart downward based on  Laney's substantial assistance to the government, by denying  Laney's motion for an evidentiary hearing and by otherwise  failing to conduct an independent review of the degree of  Laney's assistance. Laney sought to prove that he was entitled  to a greater departure than that recommended by the government because, among other reasons, he incriminated more  individuals than the government acknowledges. The government responds that we do not have jurisdiction to review the  district court's determinations regarding the downward departure and that the district court did not abuse its discretion.


19
Under 18 U.S.C. S 3742(a), which states the grounds on  which a defendant may appeal a sentence, a court of appeals  ordinarily does not have jurisdiction to review the extent of a  district court's discretionary downward departure from a sentence. See United States v. Eureka Lab., Inc. , 103 F.3d 908,  911 (9th Cir. 1996); United States v. Vizcarra-Angulo, 904  F.2d 22, 23 (9th Cir. 1990). Section 3742(a) does, however,  grant us jurisdiction over an appeal of a sentence that "(1) was  imposed in violation of law; or (2) was imposed as a result of  an incorrect application of the sentencing guidelines," even if  the alleged error involved a downward departure. See Eureka  Lab., 103 F.3d at 912 ("[A]n appeal from a sentence founded  on a mistake of law is within our jurisdiction even if the dispute concerns the fact or extent of departure.") (quoting United States v. Gomez, 24 F.3d 924, 927 (7th Cir. 1994)); see  also United States v. Martinez, 905 F.2d 251, 254 (9th Cir.  1990) ("[Defendant] does not assert the sentence imposed was  in violation of law, involved an incorrect application of the  guidelines, [or was based on other] grounds upon which a  defendant is expressly authorized to appeal. Absent such challenges we have no basis to review the district court's downward departure.") (citation omitted). For example, "[i]f the  district court rests its decision not to depart downward on a  determination that it does not have the authority to do so, we  treat that decision as an interpretation of the Sentencing  Guidelines and review it de novo." United States v. Eaton, 31  F.3d 789, 793 (9th Cir. 1994).


20
Laney claims that the district court erred by following  an incorrect process to arrive at the five-level departure, and  that we therefore have jurisdiction over his appeal because  this error constituted a violation of law or misapplication of  the Guidelines. See United States v. Hill, 70 F.3d 321, 324-25  (4th Cir. 1995) (noting distinction between argument that  downward departure was insufficient and argument that district court used an incorrect process to arrive at departure).  Section 5K1.1 of the Guidelines, which sets out a number of  factors that a court considering a government motion for a  downward departure may take into account, directs the courts  to evaluate "[t]he nature, extent, and significance of [a defendant's] assistance . . . on an individual basis " and to "state the  reasons for reducing a sentence under this section. " U.S.S.G.  S 5K1.1, comment. (backg'd). Cases in other circuits have held that a district court that fails properly to consider all of  the factors relevant to a downward departure inquiry under  section 5K1.1 commits a reviewable error of law or misapplies the Guidelines. In United States v. King , 53 F.3d 589,  591 (3d Cir. 1995), for example, the Third Circuit held that  the district court had erred as a matter of law because it failed  properly to conduct an "individualized qualitative examination of the incidents of the defendant'scooperation," as  required by section 5K1.1, id., and instead appeared to have  engaged in "a mechanical application of the guidelines," id.  at 592. The King court concluded that this error of law  resulted in appellate jurisdiction. See id. at 592 n.4. See also  United States v. Johnson, 33 F.3d 8, 10 (5th Cir. 1994) (vacating and remanding for re-sentencing upon holding that district  court had erroneously based downward departure on an  inflexible policy of accepting government's recommendation).


21
We need not reach the question, raised in King and  Johnson, of whether we have jurisdiction over an appeal of a  downward departure determination in which a district court  failed to conduct a fully individualized determination under  section 5K1.1, because we determine that the district court in  this case conducted a proper section 5K1.1 inquiry. The  record shows that the district court "adequately recognized its  duty to evaluate independently [each individual ] defendant's  case," Johnson, 33 F.3d at 10. At the sentencing hearing, the  court heard Laney's reasons for a 10-level downward departure.9  Although the district judge stated that "[i]t is the court's practice to give deference to the judgment of the government with respect to the amount of departure when the basis of the  departure is the cooperation of a defendant . . . because it's  very difficult for the court to secondguess the value of that  cooperation," this practice did not in itself violate the Guidelines, which state that the government's evaluations should  have "[s]ubstantial weight . . . particularly where the extent  and value of the assistance are difficult to ascertain," U.S.S.G.  S5K1.1, comment. (n.3). After hearing Laney's arguments,  the court stated that "there seems to be a reasonable basis for  the kind of assessment that [the government made]" and  accepted the government's recommendation. "Just because  the district court did not entertain a particular argument does  not necessarily mean it did not consider all of the grounds  presented to it in [a] motion for downward departure." United  States v. Riggins, 40 F.3d 1055, 1058 (9th Cir. 1994). The district court did not violate the Guidelines by giving the government's arguments greater weight than Laney's. Because we  lack jurisdiction to review the amount of the departure itself,  we affirm this aspect of the sentence.

D.

22
Laney challenges the restitution order, claiming that the  government did not show a close enough causal connection  between his actions and Jane Doe One's injuries to make him  liable to pay restitution to her. In response, the government  suggests that conduct that is reasonably foreseeable enough to  constitute relevant conduct under U.S.S.G. S 1B1.3 will make  a defendant liable to pay restitution under section 2259.10 This circuit has not yet determined the reach of section 2259,  which requires a sentencing court to order a defendant convicted of a crime involving the sexual exploitation of children  to pay restitution to the victim of that crime.11 We review the  legality of an orderof restitution de novo. United States v.  Rutgard, 116 F.3d 1270, 1294 (9th Cir. 1997).


23
Section 2259 does not make a defendant automatically  liable to pay restitution for every crime that forms part of that  defendant's "relevant conduct" under U.S.S.G.S 1B1.3. A  comparison of the language of the Guidelines and section  2259 shows that a court may hold a defendant responsible for  a broader range of harms connected with the defendant's  crimes when it calculates a sentence than it may consider  when it crafts a restitution order. Section 1B1.3 of the Guidelines does not require a causal connection between a defendant's acts and that defendant's relevant conduct. It merely  states that, in the case of jointly undertaken criminal activity,  "whether or not charged as a conspiracy," relevant conduct  must be "reasonably foreseeable" and "in furtherance of the  jointly undertaken criminal activity." U.S.S.G.  S 1B1.3(a)(1)(B). Section 2259, on the other hand, incorporates a requirement of proximate causation: It states that the  defendant shall pay "restitution for any offense " to the  "victim" of the offense. It defines a "victim" as "the individual harmed as a result of a commission of a crime under this  chapter," 18 U.S.C. S 2259(c) (emphasis added), and states  that restitution shall compensate for "the full amount of the  victim's losses," id. S 2259(b)(1), which includes medical  costs, lost income, and "any other losses suffered by the vic- tim as a proximate result of the offense, " id. S 2259(b)(3)(F)  (emphasis added). See also United States v. Crandon, 173 F.3d 122, 125-26 (3d Cir.) (considering whether defendant  had engaged in "conduct [that] was the proximate cause of"  the victim's injuries and therefore was liable to pay restitution  under section 2259), petition for cert. filed , _______ U.S. _______, 120 S.Ct. 138, _____L.Ed.2d.___ (1999).


24
Section 2259 therefore requires a causal connection  between the offense of conviction and the victim's harm.  When the offense of conviction is conspiracy, however, the  harms the offense caused may include not only those resulting  from the defendant's individual actions, but also others  caused by the conspiracy itself. See United States v. Fonseca Caro, 114 F.3d 906, 907 (9th Cir. 1997) ("[A] co-conspirator  is vicariously liable for reasonably foreseeable substantive  crimes committed by a co-conspirator in furtherance of the  conspiracy.") (citing Pinkerton v. United States, 328 U.S. 640,  66 S. Ct. 1180 (1946)), cert. denied, _______ U.S. _______, 118 S. Ct.  895 (1998). As the Tenth Circuit has explained,


25
A conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspirators in furtherance of the conspiracy . . . . [T]he losses caused by the entire conspiracy, not just thelosses caused by those acts committed by the defendant, can be attributed to the defendant when the district court orders restitution.


26
United States v. Brewer, 983 F.2d 181, 185 (10th Cir. 1993)  (discussing a different restitution statute, 18 U.S.C. S 3663).  Because Laney pled guilty to participating in a conspiracy and  the reasonably foreseeable actions taken by his coconspirators  in furtherance of the conspiracy injured Jane Doe One, we  find no error in the district court's decision to order restitution.

E.

27
Finally, Laney challenges the district court's determination  of the amount of restitution ordered. Part of the $60,000 restitution was to cover future psychological treatment and counseling for Jane Doe One and her family. Jane Doe One's  psychiatrist helped calculate these amounts, estimating that  the treatment would last six years. Laney contends that section 2259 does not authorize compensation for amounts that  the victims have not yet spent.12 No circuit yet has addressed  this question.


28
"We review the amount of a restitution order for abuse of  discretion, provided that it is within the bounds of the statutory framework." United States v. Johnson, 132 F.3d 1279,  1286 (9th Cir. 1997). Trial courts have broad discretion in  ordering restitution. See United States v. Miguel, 49 F.3d 505,  511 (9th Cir. 1995).


29
Compensable losses under section 2259 include the  cost of the victim's "medical services relating to physical, psychiatric, or psychological care," 18 U.S.C.S 2259(b)  (3)(A), and "physical and occupational therapy or  rehabilitation," id. S 2259(b)(3)(B). Courts are to issue and  enforce restitution orders under section 2259 "in accordance  with [18 U.S.C. S] 3664." Id.S 2259(b)(2). Section  3664(d)(5), in turn, provides a mechanism for a victim to  approach the court after sentencing and request restitution for  losses that were not ascertainable at the time of sentencing.13


30
The language of the relevant statutes shows that Congress intended to allow district courts to include future counseling expenses in the amount of restitution under section  2259. Section 2259 is phrased in generous terms, in order to  compensate the victims of sexual abuse for the care required  to address the long term effects of their abuse. Section 2259  orders compensation for costs "incurred by the victim."  "Incur" means "become liable or subject to, " Webster's Third  New Int'l Dictionary 1146 (1986); a person may become  "subject to" an expense before she actually disburses any  funds. Section 2559 also commands that those who are convicted of sexually exploiting children should compensate their  victims for the cost of "physical, psychiatric, or psychological  care." Congress was well aware that children victimized by  sexual abuse often do not recover quickly from their injuries.  See, e.g., S. Rep. No. 104-358, at 14 (1996) (describing long  term effects of sexual exploitation on its victims).


31
Section 3664, which Laney cites as evidence that Congress created a mechanism for compensating for the cost of future therapy, deals with losses that are not "ascertainable"  at the time of sentencing. Jane Doe One's counseling costs are  "ascertainable" and have, in fact, been ascertained, even  though she and her parents have yet to spend the money. Section3664 directs victims who "discover" further losses to  petition the court for an amended restitution order, and states  that the court may grant such an order only if the victim  shows good cause for failing previously to inform the court of  the loss. Jane Doe One and her family will not "discover" in  the future that they need counseling; they already know that  they do. Finally, if Congress intended crime victims who  required long-term psychological or physical 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.


32
For these reasons, we reject Laney's construction of  section 2259. We hold that the district court did not err in  interpreting the statute to allow restitution for future counseling and did not abuse its broad discretion, within the statutory  framework, in setting the amount of restitution.14

III.

33
For the foregoing reasons, the district court's judgment of  December 22, 1997, is


34
AFFIRMED.



Notes:


*
 The Honorable Phyllis A. Kravitch, Senior Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation.


1
 A "chat room" is a public or private Internet site that allows people to  send messages to one another in "real time."


2
 All references are to the November 1, 1995, version of the Guidelines,  the version the district court used in sentencing Laney.


3
 Section 2G2.2(a) sets a base offense level of 15 for trafficking, possessing with intent to traffic, receiving, transporting, shipping, or advertising material involving the sexual exploitation of a minor. Section  2G2.2(b)(2) states, "[i]f the offense involved distribution, increase by the  number of levels from the table in S2F1.1 corresponding to the retail value  of the material, but in no event by less than 5 levels." The table in section  2F1.1 correlates offense level increases to dollar amounts; a five-level  increase applies to a value between $40,000 and $70,000. Application  Note 1 to Section 2G2.2 states that "distribution " "includes any act related  to distribution for pecuniary gain, including production, transportation,  and possession with intent to distribute."


4
 In the course of deciding related issues, at least two other circuits have  assumed that "distribution" in section 2G2.2 refers to activities undertaken  for profit. See United States v. Stanton, 973 F.2d 608, 610 (8th Cir. 1992);  United States v. Deane, 914 F.2d 11, 14 (1st Cir. 1990).


5
 Section 2G3.1(b)(1) states "[i]f the offense involved an act related to distribution for pecuniary gain, increase by the number of levels from the  table in S2F1.1 corresponding to the retail value of the material, but in no  event by less than 5 levels." Application Note 1 to section 2G3.1 states  that " `[a]ct related to distribution,' as used in this guideline, is to be construed broadly and includes production, transportation, and possession  with intent to distribute."


6
 The Chairman of the Sentencing Commission has shared this view,  writing in a letter to Congress that sentences under section 2G2.2 were  "further increased by at least 5 levels if the offense involved for-profit  distribution." 137 Cong. Rec. H6736-02, H6737 (1991) (letter of William  W. Wilkins, Jr., Chairman of the U.S. Sentencing Commission) (emphasis  supplied).


7
 A recent statute shows that Congress would like the Guidelines to  include deliveries of child pornography made for non-pecuniary reasons  within the definition of "distribution." See Protection of Children from  Sexual Predators Act of 1998, Pub. L. No. 105-314,S 506, 112 Stat. 2980,  2982 (reprinted in 28 U.S.C. S 994 historical notes) (directing the Sentencing Commission to review the Guidelines relating to the distribution of  child pornography and "promulgate such amendments to the . . . Guidelines as are necessary to clarify that the term`distribution of pornography'  applies to the distribution of pornography--(A) for monetary remuneration; or (B) for a non-pecuniary interest"). Until the Sentencing Commission promulgates such amendments, however, we must interpret the  Guidelines as currently written.


8
 Laney also claims that the district court made no express factual finding of reasonable foreseeability, an error that would require a remand. See  Gutierrez-Hernandez, 94 F.3d at 585. The district court, however, adequately made such a finding: the judge explicitly adopted the factual find- ings of the presentence report and told Laney that "although I do recognize  that you yourself were not . . . present during the actual events . . . you're  responsible under the law for the conduct of the coconspirators and indeed  after the . . . conduct had taken place, you tend[ed] to participate in overt  acts that relate to that." See United States v. Whitecotton, 142 F.3d 1194,  1198 (9th Cir. 1998) (stating that district court may make findings by specifically adopting findings of presentence report); United States v. Willis,  899 F.2d 873, 875 (9th Cir. 1990) (holding that district court need not use  the exact "reasonable foreseeability" language used in Guidelines).


9
 The court did not abuse its discretion by denying Laney's motion for  an evidentiary hearing. "A district court may permissibly deny a hearing  where a defendant is allowed to rebut the recommendations and allegations of the presentence report either orally or through the submission of  written affidavits or briefs." United States v. Sarno, 73 F.3d 1470, 150203 (9th Cir. 1995). Because Laney's counsel submitted a detailed declaration in support of the request for an evidentiary hearing and made a  lengthy oral presentation on the record explaining why Laney believed the  government had underestimated the value of his assistance, the court could  reasonably have found that an evidentiary hearing would have "had little  value," United States v. Robinson, 35 F.3d 442, 450 (9th Cir. 1994).


10
 Laney also argues that the restitution order was erroneous for two  other reasons: because Jane Doe One's molestation was not reasonably  foreseeable to him and because the district court did not make findings of  fact on the amount of Jane Doe One's injuries proximately caused by  Laney. We find these arguments without merit.


11
 Section 2259 states in relevant part:
(a) In general.--Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law,  the court shall order restitution for any offense under this chapter.  (b) Scope and nature of order.- (1) Directions.--The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2).
(2) Enforcement.--An order of restitution under this sec tion shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition.--For purposes of this subsection, the term "full amount of the victim's losses" includes any costs incurred by the victim for- (A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation; [and]
. . . .
(F) any other losses suffered by the victim as a proximate result of the offense.
. . . .
(c) Definition.--For purposes of this section, the term "victim" means the individual harmed as a result of a commission of a crime under this chapter . . . .


12
 See supra note 11 for the text of section 2259.


13
 Section 3664(d)(5) states:
If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.


14
 Of course, district courts must estimate the amounts that victims will  spend on future counseling with reasonable certainty, in accordance with  the procedures set forth in 18 U.S.C. S 3664. In many cases, an order of  restitution for future losses may be inappropriate because the amount of  loss is too difficult to confirm or calculate. See, e.g., United States v.  Fountain, 768 F.2d 790, 801-02 (7th Cir. 1985) (reversing a restitution  award, granted under a different restitution statute, that compensated for an injured victim's lost future wages; stating that "the difficult[y] . . . of  translating an uncertain future stream of earnings into a present value"  means that "projecting lost future earnings has no place in criminal sentencing if the amount or present value of those earnings is in dispute"). In  this case, however, because the government's estimate of the amount was  well-supported and exact, and because Laney did not contest it, the district  court did not need to engage in any arbitrary calculations.



35
T.G. NELSON, Circuit Judge, specially concurring:


36
In this case, we encounter an existing circuit split.  Although Yogi Berra enjoined us, "when you come to a fork  in the road, take it," I believe we have chosen the wrong path  here.


37
Sentencing guideline S 2G2.2 provides for enhancements to  sentences of persons convicted of receiving, transporting,  shipping or advertising materials involving the sexual exploitation of minors. According to the guideline, a sentence can  be enhanced "[i]f the offense involved distribution." U.S.S.G.  S 2G2.2(b)(2). Application Note 1 provides that: " `Distribution' includes any act related to distribution for pecuniary  gain, including production, transportation, and possession  with intent to distribute." Id. comment. (n.1). The majority  accepts the reasoning of United States v. Black , 116 F.3d 198,  202-03 (7th Cir. 1997), to conclude that "distribution," as it is used in Section 2G2.2(b)(2), requires an element of pecuniary gain. I believe that this unwarrantedly restricts the reach  of the guideline and therefore concur only in the result  reached in Part II.A of the opinion.


38
Because this road has had previous traffic on it, I do not  need to blaze a new trail. Rather, I believe the analysis of the  Second Circuit in United States v. Lorge, 166 F.3d 516 (2d  Cir. 1999), articulates the correct interpretation of Section  2G1.1(b)(2). In Lorge, the court explained that:


39
The language of the Guidelines makes clear that the definition of "distribution" in Section 2G2.2 (b)(2) is not limited by Application Note 1 thereof to acts for "pecuniary gain." Because Section 1B1.1 states that the term "includes" is not exhaustive, the language of Application Note 1 . . . is most easily read as intended to avoid an overly narrow reading of distribution that excluded acts ancillary to sales, such as transportation. Moreover, the structure of Section 2G2.2 also supports the inferencethat a motive of pecuniary gain need not be shown. Sub section (b)(2) provides for an enhancement "[i]f the offense involved distribution." The ordinary meaning of distribution involves an act or series of acts without regard to the actor's motive. Application Note 1, which provides, inter alia, that the term distribution "includes any act related to distribution for pecuniary gain," makes clear that when the profit motive is present, not only "distributions," as the  term is commonly understood, but also "any act" related thereto, "including production, transportation, and possession with intent to distribute," suf fices to sustain the enhancement.


40
. . . Moreover, the fact that Section 2G2.2(b)(2) cross-references the table in Section 2F1.1 setting forth incremental offense-level enhancements based on the amount of monetary loss does not support appellant's argument . . . . The purpose of the reference to the table in Section 2F1.1 is clearly to pro vide for increased distribution enhancements tied to the value of the distributed material, not to modify the meaning of the term "distribution."


41
Id. at 518-19 (citations omitted); see also United States v.  Hibbler, 159 F.3d 233, 137-38 (6th Cir. 1998) ("[T]he  enhancement provided for in S 2G2.2(b)(2) is not limited to  instances involving distribution for pecuniary gain."); United  States v. Canada, 110 F.3d 260, 263 (5th Cir. 1997)  (" `[D]istribution' for the sake of the guideline is meant to be  inclusive of pecuniary gain purposes, but not exclusive of all  other purposes.").


42
Contrary to the dissent, application of the enhancement to  any and all trades of child pornography is not suspect or contrary to the guidelines. The sentencing guidelines distinguish  between receiving and distributing child pornography.  Hibbler, 159 F.3d at 238. The baseline offense covers the receipt and possession of child pornography. However, if a  defendant has distributed child pornography, a five-level sentence increase is imposed. If a defendant has distributed child  pornography with a value greater than $70,000, incremental  enhancements are imposed in relation to the value of the child  pornography distributed. "The guidelines, therefore, mandate  a continuum of punishment correlated to the value of the distributed materials." Id.


43
Notably, Section 2G3.1, the sentencing guideline for the  similar, but lesser offense of "importing, mailing, or transporting obscene matter" also includes a five-level increase,  but specifically for an act related to distribution for pecuniary  gain. Section 2G3.1 states that "[i]f the offense involved an  act related to distribution for pecuniary gain, increase the  number of levels from the table in S 2F1.1 corresponding to  the retail value of the material, but in no event less than 5  levels." U.S.S.G. S 2G3.1(b)(1) (emphasis added). In contrast,  Section 2G2.2, for child pornography, applies if the offense  merely "involved distribution." This is clearly broader language. Thus, mere distribution of child pornography results in  a five-level enhancement, whereas distribution of pornography that does not include depictions of children must be for  pecuniary gain in order to result in a five-level increase. This  distinction is logical. To interpret Section 2G2.2(b)(2) to  require pecuniary gain negates a clear choice to give heavier  sentences to those who engage in child pornography offenses.


44
Thus, I do not believe that the enhancement for distribution  under Section 2G2.2(b)(2) is limited to those circumstances where the Government can show that the act was for pecuniary gain. While the majority has reached the correct endpoint  in finding that the enhancement of Laney's sentence was not  clearly erroneous, it has taken a path which limits the  intended and proper reach of the guideline. As such, I concur  only in the result reached in Part II.A of the opinion.


45
REINHARDT, Circuit Judge, concurring in part and dissenting in part.


46
Although I concur in the majority opinion in all other respects, I disagree withJudge Kravitch's interpretation of the  term "for pecuniary gain" as it is used in connection with Sentencing Guideline S 2G2.2. For that reason, I dissent from the  majority's affirmance of the five level increase in the sentence.


47
Judge Kravitch and I agree that "distribution, " for purposes  of S 2G2.2, means distribution for pecuniary gain. We believe  that meaning to be clear from the text of Application Note 1,  which states that " `distribution' includes any act related to  distribution for pecuniary gain . . . ." But, Judge Kravitch then  concludes that the requirement that the distribution be "for  pecuniary gain" is satisfied so long as the offender in question  receives something that has monetary value in exchange.  Here, we part company. I believe that the phrase "for pecuniary gain" applies when the offender in question has acted to  acquire something with monetary value because of  that value --put another way, when the offender's actions are motivated,  at least in substantial part, by a desire for profit.


48
Thus, while I agree with Judge Kravitch and the Seventh  Circuit in Black that distribution for  pecuniary gain can  include a variety of acts, such as barters, swaps, and trades,  I believe that in order to qualify for the enhancement, those  acts must be motivated by a desire for economic benefit. In  contrast, Judge Kravitch would find that "[a] person who  delivers pornography in order to receive other pornography  that has economic value acts for `pecuniary gain' and therefore engages in `distribution' for purposes of Section  2G2.2(b)(2)." Thus, Judge Kravitch's interpretation of the  Guidelines would in essence read the word "for " out of the  Application Note.


49
Webster's New World Dictionary defines "for" as: "with  the aim or purpose of . . . ; in order to . . . get, have, keep,  etc., because of . . . ." Webster's New World Dictionary, Third  College Edition (3d ed. 1988). The plain meaning of the Note,  therefore, is that to act for pecuniary gain is to act in order to  obtain pecuniary gain--that, simply put, pecuniary gain must  be the motive for the act. A person who exchanges pornography for more pornography may be acting for pecuniary gain,  but he may also be acting out of an entirely different motivation wholly unrelated to a desire for profit--specifically, he  may be acting out of a desire for personal pleasure or gratification. To me, acting for the latter purpose is not acting "for  pecuniary gain," even though pecuniary gain may be an incidental benefit of the transaction.1


50
In my view, the profit (or economic benefit) motive is an  essential element of an act for pecuniary gain, for two reasons  --in addition to the fact that such is the plain meaning of the  Application Note. First, any other reading would mean that  any one in possession of child pornography who trades pictures with acquaintances for mutual satisfaction or gratification would automatically qualify for the same five level  enhancement that would be received by commercial venturers  who sell child pornography for money, or who, in hopes of  escaping detection or prosecution, exchange or barter pornographic materials for other items that have a significant economic value. Second, to construe distribution as applying to  transactions that are motivated by considerations unrelated to  economic benefit would leave nothing to be covered by the  base offense level other than the acts of the rare individuals  who on occasion make gifts of pornographic pictures to  similarly-inclined acquaintances, without any hope or expectation that those acquaintances will return the favor--a very  small class indeed.


51
The Chairman of the Sentencing Commission has confirmed that the five level enhancement was intended to  include onlyfor-profit distribution. As Judge Kravitch notes  in her opinion, Chairman Wilkins stated that sentences under  S 2G2.2 were "further increased by at least five levels if the  offense involved for-profit distribution. " 137 Cong. Rec.  H6736-02, H6737 (1991) (letter of William W. Wilkins, Jr.,  Chairman of the U.S. Sentencing Commission) (emphasis added).


52
Contrary to Judge Nelson's special concurrence, a comparison of the sentencing guidelines concerning child pornography with those concerning other forms of pornography, i.e.  "obscenity," demonstrates clearly that in both categories of  cases the Sentencing Commission's intention in imposing a  five level increase was simply to have that increase apply  whenever the distribution of the material was "for pecuniary  profit." A reading of the two relevant sections should make  that clear. Moreover, while Judge Nelson's "logical" justification for his position--namely, that the Commission intended  to give heavier sentences to those who engage in offenses  involving child pornography--accurately describes the Commission's desires, it does not in any way support Judge Nelson's position. The Commission's intent to punish child  pornography more severely is manifested by its establishment  of a higher base level of punishment for that offense. In fact,  the Commission established a far higher base level for trafficking in child pornography than for trafficking in obscene  material not involving children (15 for trafficking in child  pornography; and 10 for importing, mailing or transporting  obscene matter). The Commission therefore had no cause to,  and did not, create nice distinctions regarding the use of the  term "distribution" in its child pornography and obscenity  guidelines in order to provide for heavier penalties for child  pornography. Instead, having already recognized the difference in the seriousness of the two offenses by imposing different base level sentences, the Commission then provided  that the punishment for each type of offense (both more seri- ous and less serious) would be increased by five levels whenever any of the crimes were committed for pecuniary gain. In  short, under the Sentencing Guidelines, those who engage in  distribution of child pornography, whether for pecuniary gain  or not, do in fact receive heavier sentences than those who  engage in the trafficking of obscenity under similar circumstances. As a result, Judge Nelson's argument that interpreting  S 2G2.2(b)(2) to require pecuniary gain "negates a clear  choice to give heavier sentences to those who engage in child  pornography offenses" is plainly not correct.


53
Finally, Judge Nelson's suggestion that S 2G2.2's base  offense level is intended to deal simply with "receipt" is  inconsistent not only with the Commission's specification of  the acts covered by that section--namely, "Trafficking in  Material Involving the Sexual Exploitation of a Minor;  Receiving, Transporting, Shipping, or Advertising Material  Involving the Sexual Exploitation of a Minor; Possessing  Material Involving the Sexual Exploitation of a Minor with  Intent to Traffic"--but with the related Guidelines sections  such as S 2G2.4, which only two sub-sections later establishes  a lower base level for possession of the same materials.  Because possession, as described in S 2G2.4 includes subcategories such as possession of ten or more books, magazines or  periodicals, it is clear that in most instances, possession will  involve the prior receipt of the child pornography by the  defendant. The purpose of Section 2G2.2 is to deal with (and  punish more severely) persons engaged in more than simple  possession (including prior receipt)--specifically, it is intended to levy the appropriate punishment on persons who  engage in "trafficking"--a far more pernicious activity. Once  that concept is understood, it follows inevitably that the five  level increase is intended to apply to people who traffic for  pecuniary gain.


54
The business of child pornography feeds off of the victimization of children. I believe that the Sentencing Commission  intended to distinguish (and punish withparticular severity)  those who make a profit out of the exploitation of children  from those whoare essentially consumers; who simply  exchange pornography with other consumers; who, for reasons that most of us have enormous difficulty fathoming (but  are certainly non-pecuniary), derive personal pleasure and  gratification from viewing the illicit materials. All of the evidence shows that Laney falls into the latter category. For  these reasons, I would reverse the district court's five level  enhancement under S 2G2.2.



Notes:


1
 Thus, while Judge Kravitch and I would agree that the five level  enhancement applies to someone who trades one set of pornographic  images for another for the purpose of obtaining some economic benefit,  she would also hold that the five level enhancement applies to a person  who makes the same trade solely for the purpose of his own personal gratification and regardless of any incidental economic benefit that may  accrue.


