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                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                               Nos. 14-14124, 15-13321
                              ________________________

                      D.C. Docket No. 6:13-cr-00280-JA-DAB-1



UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                            versus

WILLIAM EDWARD OSMAN,

                                                                      Defendant-Appellant.

                              ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                      (April 12, 2017)

Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.

HULL, Circuit Judge:




       *
         Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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      William Edward Osman appeals his restitution order, following his guilty

plea to one count of production of child pornography, one count of distribution of

child pornography, and one count of possession of child pornography. We affirm.

                         I. FACTUAL BACKGROUND

A.    Convictions

      On six separate occasions between December 2012 and September 2013,

Osman sexually abused and molested his approximately one-year-old daughter,

A.E., and used his cell phone to photograph his sexual abuse. In September 2013,

Osman sent some of the child-pornography images he had created of A.E. to

another individual, M.G., in exchange for child-pornography images of M.G.’s

three-year-old daughter. In October 2013, agents from the Department of

Homeland Security executed a search warrant at Osman’s residence. Osman

admitted to using the internet to search for child pornography; a forensic

examination of Osman’s electronic devices revealed at least 194 movies and 588

still images of child pornography as well as the images of A.E. and M.G.’s

daughter.

      A grand jury charged Osman with: (1) six counts of production of child

pornography, in violation of 18 U.S.C. § 2251(a), (e) (Counts 1-6); (2) one count

of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B),

(b)(1) (Count 7); (3) one count of receipt of child pornography, in violation of 18


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U.S.C. § 2252A(a)(2)(B), (b)(1) (Count 8); and (4) one count of possession of

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (Count 9).

Under a plea agreement, Osman pled guilty to one count of production of child

pornography (Count 1), one count of distribution of child pornography (Count 7),

and one count of possession of child pornography (Count 9). As part of the plea

agreement, Osman agreed to make full restitution to A.E. under the Mandatory

Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259. The district

court sentenced Osman cumulatively to sixty years of imprisonment.

B.    Restitution Hearing

      At the restitution hearing, Osman argued the government’s estimate of

A.E.’s future counseling needs was speculative, given her very young age. The

government acknowledged any estimate of damages and future counseling needs

necessarily would be speculative to some extent in a case involving an infant

victim but nevertheless asserted restitution was appropriate. In support of its

position, the government called Sharilyn Rowland Petrie, a licensed counselor who

specialized in work with child victims of sexual abuse and domestic violence.

      Petrie testified she had been a licensed counselor for ten years and

approximately eighty percent of her caseload involved victims of child sexual

abuse. Petrie further stated she had worked with children at various developmental

stages. Petrie testified she met with A.E.’s mother the day before the hearing and


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discussed some of A.E.’s behavioral characteristics with her. Petrie acknowledged

any estimate she could give about A.E.’s future counseling needs would be based

on predictions about the care A.E. likely would need, and was, thus, in some sense

speculative. But, Petrie testified that her opinion was based on many years of

research about the consequences of early adverse life events and her extensive

experience counseling victims of abuse.

      Based on her professional experience and understanding of the standard

continuum of treatment for a child sexual-abuse victim, Petrie’s expert opinion was

that A.E. likely will need future treatment. The continuum of treatment Petrie

described involves four different, age-appropriate stages. The first is Eye

Movement Desensitization and Reprocessing (“EMDR”); second, therapy at the

second-grade level (seven or eight years old); third, therapy at puberty; and fourth,

therapy when the victim is ready to marry or have a child.

      Petrie explained there are two types of therapies available for victims of

childhood sexual trauma—EMDR and cognitive behavioral therapy. Because

A.E.’s memories of the abuse initially would be stored in a nonverbal format

because of her age at the time of the abuse, Petrie opined A.E. first would need

EMDR treatment rather than cognitive behavioral therapy, because EMDR does

not require the victim to be able to recall events in narrative form. She explained,

however, that young victims often needed additional courses of treatment because


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it is difficult to identify all of their traumatic memories and triggers. A six-month

course of EMDR treatment at a rate of $125 per hour would cost $3,250.

      Petrie testified A.E. would need another stage of therapy between the ages of

seven and eight, around the time she would be in second grade. At that point, A.E.

would realize her family was different from other families, begin to have

questions, and likely would start to exhibit emotional and behavioral disturbances.

At that age, Petrie explained A.E. would be aware of her father’s absence from the

family and wonder why he was not there. Petrie also noted that, according to

A.E.’s mother, A.E. already had begun asking about her father. Petrie further

explained that she advises families to provide age-appropriate information to the

child about the absent parent, including the reasons for his absence, rather than

keep the abuse a secret from the child. Petrie explained that trying to keep the

abuse a secret from the child can cause additional trauma when the child inevitably

finds out about it later in life. Based on her conversations with A.E.’s mother,

Petrie opined that A.E. likely would exhibit greater behavioral problems and

require additional therapy at about the time she reaches the second grade. This

opinion was, in part, based on the fact that A.E.’s mother told her that A.E. was

already experiencing separation anxiety and intense reactions to stressors such as

being touched. To Petrie, this indicated A.E. likely would manifest her anxieties

through her patterns of behavior. Petrie stated A.E. would require six to nine


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months of therapy at this stage; at $125 per hour, a nine-month course of treatment

would cost $4,875.

      Petrie then estimated that A.E. would require a third course of therapy in

adolescence, when she reaches puberty and develops a greater understanding of

sexual relationships and the nature of what had happened to her. She explained

that other children with whom she had worked at that stage developed “a new level

of understanding and disturbances” regarding the sexual abuse they had suffered as

a young child. Petrie testified A.E. would need therapy for nine months to one

year at this stage and stated a nine-month course of treatment at $125 per hour

would cost $4,875.

      Finally, Petrie explained that A.E. likely would need at least one more

course of therapy, either when she is in the process of selecting a life partner or is

on the verge of becoming a parent. Petrie explained that most people who have

experienced childhood-sexual trauma will question their own ability to parent a

child. She explained that the duration of treatment needed at this stage would

depend largely on how A.E.’s life progressed. If A.E. maintains good relationships

and does not suffer any other major trauma, she likely would need only three to six

months of therapy, whereas a much longer course would be necessary if A.E. had

difficult relationships and experienced other adverse life events. Petrie therefore




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concluded that six months of therapy was a “good estimate” for A.E. at that stage;

at a rate of $125 per hour, that therapy would cost $3,250.

      On cross-examination, Petrie explained that a victim of A.E.’s age at the

time of the abuse (seven to fourteen months old) would remember the abuse as a

“felt sense,” rather than as words or images, because most memory prior to age

three disappears from verbal recollection. She conceded that more painful or

traumatic experiences may be recalled more vividly, but explained that lack of pain

did not necessarily mean the memory was less likely to be retained. Petrie testified

that she recommends that A.E. begin EMDR immediately to begin addressing her

nonverbal memories of the abuse. She also reiterated that A.E. would need

additional treatment at the second-grade-developmental stage, because EMDR

therapy was unlikely to address fully A.E.’s traumatic memories. Petrie did

acknowledge, however, that it was possible, though not likely, for a child to live a

normal life after experiencing sexual abuse, even without therapy.

      Following the restitution hearing, the parties submitted memoranda

concerning their respective positions on restitution. In his memorandum, Osman

argued that Petrie’s testimony was speculative and not based on competent

evidence. He noted Petrie’s conclusions were based on only one meeting with

A.E.’s mother, neither Petrie nor anyone else had evaluated A.E., and no evidence

or medical records were presented. Osman further contended there was no


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evidence the abuse in this case was a traumatic experience that A.E. would

remember past the age of three and noted that Petrie had conceded children could

suffer traumatic experiences without any lasting impact. In addition, Osman

contended restitution was proper only to the extent the defendant proximately

caused the victim’s losses and, he claimed, no losses had been shown in this case.

Osman asserted the government had to demonstrate a present need for counseling

on which the estimate for future treatment could be based to support a request for

prospective restitution. Osman argued it would be a violation of due process to

award restitution based solely on speculative information and noted there is a

process by which victims can seek restitution at a future time, when their losses

become ascertainable.

      In response, the government argued the losses A.E. suffered were

attributable directly to Osman. Although Petrie acknowledged her estimate of

A.E.’s future therapeutic needs was speculative, her conclusions were based on a

substantial amount of research concerning the effects of early adverse-life

experiences and Petrie’s experience as a counselor of victims of childhood abuse.

The government contended Petrie’s testimony demonstrated A.E. would need

counseling to address the harm caused by Osman. The government requested a

total of $17,875 in restitution for A.E.




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C.    District Court’s Restitution Order

      The district court ordered restitution for A.E. in the amount of $16,250. The

court determined that Petrie’s testimony supported the imposition of restitution for

A.E.’s future counseling costs. The court explained that Osman’s reliance on cases

involving mere possession of child pornography to support his argument that the

government had not established any losses proximately caused by his conduct was

misplaced, because issues of causation are not present in production cases. It is

undisputed that Osman sexually abused A.E. and produced photographs

memorializing the abuse; there was no question any losses A.E. suffered were

caused directly by Osman.

      The district court rejected Osman’s arguments that the government had not

established A.E. suffered any losses and that any need for future therapy was too

speculative to support a restitution award. Even if Osman was correct that

restitution could not be awarded for future damages unless there was evidence of

the victim’s need for counseling at the time of the award, the court concluded that

restitution was appropriate in this case because Petrie testified A.E. had a present

need for EMDR therapy and could predict the need for additional therapy based on

normal maturation patterns. The district court pointed out that other courts have

recognized the propriety of awarding restitution for future counseling costs in

production cases and had done so based on evidence similar to that proffered by


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Petrie. Although Petrie did not meet with A.E., the court pointed out that Petrie

did obtain a direct assessment of A.E.’s behavior from A.E.’s mother. The district

court concluded that the preponderance of the evidence supported the imposition of

restitution for A.E.’s future counseling costs and that Petrie’s testimony had

provided a reasonable estimate of those losses. The district court noted, however,

that the government’s requested restitution amount of $17,875 was inconsistent

with the amounts Petrie estimated at the hearing, which totaled only $16,250. The

district court also concluded that the government’s request for restitution

predicated on the future counseling needs of A.E.’s mother was not supported by

specific testimony with respect to any such needs and must, therefore, be denied.

Therefore, the district court limited its restitution award to $16,250. Osman timely

appealed.

                          II. STANDARD OF REVIEW

      We review the legality of a restitution order in a child pornography case de

novo and the underlying factual findings for clear error. United States v.

McDaniel, 631 F.3d 1204, 1207 (11th Cir. 2011). We review de novo the legal

conclusion of whether a person is a “victim,” while “proximate cause is a factual

finding we review for clear error.” Id. (quoting United States v. Robertson, 493

F.3d 1322, 1334 (11th Cir. 2007)).




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                                  III. DISCUSSION

A.     Legal Principles

       The Mandatory Restitution for Sexual Exploitation of Children Act, 18

U.S.C. § 2259, mandates that a district court order restitution for crimes involving

the sexual exploitation of children. 18 U.S.C. § 2259(a), (b)(4)(A). Under that

statute, the restitution order “shall direct the defendant to pay the victim . . . the full

amount of the victim’s losses as determined by the court.” Id. § 2259(b)(1). A

victim’s losses include any costs incurred for medical services relating to

psychological care. Id. § 2259(b)(3)(A). The Supreme Court has recognized that

the distribution of child pornography is “intrinsically related to the sexual abuse of

children,” because “the materials produced are a permanent record of the children’s

participation and the harm to the child is exacerbated by their circulation.” New

York v. Ferber, 458 U.S. 747, 759, 102 S. Ct. 3348, 3355 (1982).

       Section 2259(b)(2) provides that an order of restitution under § 2259 shall be

issued and enforced in accordance with 18 U.S.C. § 3664. 18 U.S.C. § 2259(b)(2).

Under § 3664(e), any dispute regarding the proper amount or type of restitution

shall be resolved by the district court under the preponderance-of-the-evidence

standard. 18 U.S.C. § 3664(e); United States v. Baldwin, 774 F.3d 711, 728 (11th

Cir. 2014), cert. denied, 135 S. Ct. 1882 (2015). If the victim subsequently

discovers further losses that were not ascertainable at the time of the original


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restitution order, the victim may petition the court for an amended restitution order

within sixty days of the discovery of those losses. 18 U.S.C. § 3664(d)(5).

      The government bears the burden of proving the amount of loss the child

victim sustained as a result of the sexual-abuse crime. 18 U.S.C. § 3664(e). The

government must demonstrate the amount of the loss “with evidence bearing

‘sufficient indicia of reliability to support its probable accuracy.’” United States v.

Singletary, 649 F.3d 1212, 1217 n.21 (11th Cir. 2011) (quoting United States v.

Bernardine, 73 F.3d 1078, 1080-81 (11th Cir. 1996)). We have noted “the

determination of the restitution amount is by nature an inexact science.” Baldwin,

774 F.3d at 728 (citation and internal quotation marks omitted). Consequently, a

district court “may accept a ‘reasonable estimate’ of the loss based on the evidence

presented.” Id. (citation and internal quotation marks omitted). Further, the

government must only meet its burden by a preponderance of the evidence, which

means the need for restitution is more likely than not to occur. See id.

B.    Future Therapy Costs

      This Court has not addressed explicitly whether § 2259 permits an award of

restitution for future therapy costs. But see McDaniel, 631 F.3d at 1207, 1209

(upholding a restitution award that was based in part on the victim’s future therapy

needs without discussion). Other circuits to have addressed this issue have

concluded that restitution for future expenses, including therapeutic costs, is


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appropriate under § 2259 as long as the award is based on a reasonable estimate of

those costs. See United States v. Rogers, 758 F.3d 37, 39-40 (1st Cir. 2014);

United States v. Pearson, 570 F.3d 480, 486-87 (2d Cir. 2009); United States v.

Danser, 270 F.3d 451, 455-56 (7th Cir. 2001); United States v. Julian, 242 F.3d

1245, 1246-48 (10th Cir. 2001); United States v. Laney, 189 F.3d 954, 966-67 (9th

Cir. 1999). Although § 3664 provides a mechanism by which victims can seek

additional restitution at a later date, as the Ninth Circuit explained, resort to that

procedure is necessary only where the victims’ losses were not ascertainable at the

time of the original restitution award. Laney, 189 F.3d at 966-67. When the

victim’s need for future counseling and the costs of such counseling can be

ascertained, § 2259 permits a present award of restitution for those future losses.

Id.

      We are persuaded by our sister circuits and hold that a restitution order

under 18 U.S.C. § 2259 may include restitution for future therapy expenses as long

as the award reflects a reasonable estimate of those costs and is based on record

evidence. See United States v. Doe, 488 F.3d 1154, 1160 (9th Cir. 2007) (“We

will uphold an award of restitution under Section 2259 if the district court is able to

estimate, based upon facts in the record, the amount of [the] victim’s loss with

some reasonable certainty.”); Laney, 189 F.3d at 967 n.14 (“Of course, district

courts must estimate the amounts that victims will spend on future counseling with


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reasonable certainty, in accordance with the procedures set forth in 18 U.S.C.

§ 3664.”).

C.    Award for A.E.’s Future Therapy Costs

      In Paroline v. United States, the Supreme Court considered “what causal

relationship must be established between the defendant’s conduct and a victim’s

losses for purposes of determining the right to, and the amount of, restitution under

§ 2259.” 572 U.S. __, __, 134 S. Ct. 1710, 1716 (2014). The defendant in

Paroline was one of many individuals who possessed child-pornography images of

the victim. Id. at __, 134 S. Ct. at 1717. The Supreme Court had to determine the

extent to which the defendant was liable for the victim’s overall losses as a result

of his viewing and circulation of her images. Id. at __, 134 S. Ct. at 1717-18. The

Supreme Court concluded restitution was proper under § 2259 “only to the extent

the defendant’s offense proximately caused a victim’s losses.” Id. at __, 134 S. Ct.

at 1722. In Paroline, because the defendant was only one of many possessors of a

victim’s image, the Supreme Court concluded it was impossible to trace all of the

victims’ losses to that defendant. See id. at __, 134 S. Ct. at 1727. Accordingly,

the Supreme Court explained the district court should only order restitution in an

amount that reflected the defendant’s relative role in the “causal process”

underlying the victim’s losses. Id.




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      Osman’s reliance on Paroline is misplaced. That decision has no bearing on

his central argument—that the government failed to show A.E. suffered any losses

from his conduct. Paroline addressed the causal connection required to hold a

single possessor of widely disseminated child-pornography images, far removed

from the original abuse, liable for a victim’s losses. See id. at __, 134 S. Ct. at

1716-18. It is undisputed Osman triggered the “causal process” underlying any

losses suffered by A.E. because he perpetrated the abuse, produced the child-

pornography images of her, and disseminated them. See id. at __, 134 S. Ct. at

1727. Osman’s argument that the government has failed to establish that A.E. has,

in fact, suffered any losses is an antecedent issue not raised in Paroline. See id. at

__, 134 S. Ct. at 1726 (“It is common ground that the victim suffers continuing and

grievous harm as a result of her knowledge that a large, indeterminate number of

individuals have viewed and will in the future view images of the sexual abuse she

endured.”).

      The district court did not err in concluding that A.E. has suffered a loss or in

awarding restitution to A.E. for future counseling expenses needed to address that

loss. First, Petrie’s testimony bears sufficient indicia of reliability to support its

probable accuracy. Singletary, 649 F.3d at 1217 n.21. Petrie acknowledged her

estimates of A.E.’s therapy needs necessarily were predictive because of A.E.’s

very young age, but explained that those estimates were based on extensive


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research concerning early adverse-life events, her ten years of experience

counseling victims of child sexual abuse, and her discussion with A.E.’s mother.

Although Petrie acknowledged it was possible a child like A.E. could live a normal

life despite the sexual abuse she had suffered, she opined that was unlikely. There

can be no doubt that A.E. eventually will learn of the abuse and her father’s

incarceration in connection with that abuse, either from her mother or through her

own research; A.E. will need to learn to cope with the knowledge of both, and

feelings of guilt arising therefrom.

      Petrie’s testimony also established that A.E. already had suffered and would

continue to suffer losses from Osman’s conduct, and Petrie provided reasonable

estimates of A.E.’s therapeutic needs. Petrie testified EMDR therapy (the first

stage) was presently recommended for A.E. to begin addressing her nonverbal

memories of Osman’s sexual abuse. Because of the difficulty of identifying and

addressing all of the traumatic memories and possible triggers with a victim as

young as A.E., Petrie explained that additional therapy likely would be needed at

the second-grade-developmental stage (the second stage). Based on her

conversation with A.E.’s mother, Petrie also testified A.E. already had exhibited

behaviors, such as separation anxiety and sensitivity to touch, which indicated that

she was more likely to have greater behavioral problems at the second-grade stage

that would require counseling. While Petrie did not examine A.E., we are


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confident that the mother of A.E., a two-year-old child, was the best possible

source of information regarding A.E.’s behaviors. A.E.’s mother was with the

child daily and already noticed A.E.’s averment to touch. The mother’s constant

interaction and observation offers more than an expert’s two- or three-hour

observation could.

      In addition, Petrie expected A.E. would need further counseling in

adolescence (the third stage), and explained that other children with whom she had

worked at that stage had experienced a new level of insight into and disturbance

regarding the sexual abuse they had suffered. At this third stage, Petrie noted the

duration of therapy needed would depend on A.E.’s readiness and ability to

cooperate, and Petrie estimated A.E. would need, at the low end, nine months of

therapy. As noted earlier, Petrie testified that parents and other family members

are advised not to withhold information about the abuse once the child is old

enough to process that information, so as to avoid even greater psychological harm

caused by feelings of mistrust. Thus, Petrie explained the question was not

whether A.E. would learn of the abuse, only when.

      Petrie last testified she expected A.E. would need a fourth course of therapy

when selecting a life partner or starting her own family because “[m]ost people”

who suffered childhood-sexual trauma such as A.E.’s will question their own

ability to parent a child. Petrie acknowledged her estimate of the necessary


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duration of treatment for A.E. at this fourth stage was the most uncertain because it

largely would depend on how A.E.’s life progressed. If A.E.’s life experiences

were relatively positive with no other major significant trauma, a course of three to

six months would be appropriate, whereas a longer course of treatment might be

necessary if A.E. experienced other traumas resulting from Osman’s sexual abuse.

In view of these variables, Petrie testified six months was “a good estimate” of

A.E.’s needs at this fourth stage. We find that Petrie’s testimony provided a

reasonable estimate of A.E.’s losses by a preponderance of the evidence; the

district court did not err in relying on that estimate in awarding restitution. 18

U.S.C. §§ 2259(b)(2), (3)(A), 3664(e); Baldwin, 774 F.3d at 728.

      We are unpersuaded by Osman’s contention that § 3664(d)(5) provides the

appropriate remedy for A.E. As the Ninth Circuit explained in Laney,

§ 3664(d)(5) allows a victim to seek additional restitution for losses not

ascertainable at the time of the original restitution award. See 18 U.S.C.

§ 3664(d)(5); Laney, 189 F.3d at 966-67. Because a reasonable estimate of A.E.’s

future therapy needs is presently ascertainable, the district court properly included

those costs in his restitution award under § 2259. In rejecting the same argument

Osman makes here, the Seventh Circuit reasoned that: “We do not believe that

Congress sought to create such a cumbersome procedure for victims to receive

restitution. In enacting section 2259, it is clear that Congress intended to provide


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victims of sexual abuse with expansive relief for ‘the full amount of . . . [their]

losses” suffered as a result of abuse.” Danser, 270 F.3d at 455 (citing 18 U.S.C.

§ 2259(b)(3)(B)). We agree. See McDaniel, 631 F.3d at 1207, 1209; Laney, 189

F.3d at 966-67.

      We are not dealing here with just the likelihood that a young child whose

pornographic images are shared online will suffer residual effects from the

reproduction of those images will need treatment. We are dealing with a child who

was molested by her father, who will be informed of that fact, who will know that

her father is absent from her life and suffering imprisonment based on that

interaction. That is a heavy burden to place on a child. We cannot imagine that

therapy will not be in order at the relevant times. Given the facts here, it seems

that the need for future therapy is not just likely, but a virtual certainty.

      AFFIRMED.




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