                                                                           FILED
                           NOT FOR PUBLICATION                              APR 01 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50573

              Plaintiff - Appellee,              D.C. No. 3:14-cr-00471-WQH-1

 v.
                                                 MEMORANDUM*
SHANE TRAVIS MASSA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                      Argued and Submitted March 10, 2016
                              Pasadena, California

Before: CLIFTON, CALLAHAN, and IKUTA, Circuit Judges.

      Shane Massa pleaded guilty to possessing child pornography and was

ordered to pay restitution pursuant to 18 U.S.C. § 2259. He now appeals the district

court’s restitution order as to three of his victims. Although we approve most of the




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court’s treatment of restitution to these victims, it is necessary to vacate the

award and to remand for further proceedings.

      In its restitution order, the district court identified several factors set forth in

Paroline v. United States, 134 S. Ct. 1710, 1722 (2014), for district courts to

consider in calculating restitution awards. These factors included the number of

past criminal defendants to have contributed to the victims’ general losses, whether

Massa reproduced or distributed images of the victims,1 whether Massa was

involved in the initial production of the images, and how many images of the

victims Massa had been found to possess. The court also noted how many

defendants in other cases had been ordered to pay restitution to the victims, the

range of the individual restitution orders, and the sum of the total restitution paid.

Taking all of these factors into account, and apparently relying on the number of

images of each victim found on Massa’s computer to determine “the defendant’s



      1
        Massa argues that it was error for the district court to consider the fact that
he made the files available on a file-sharing site in determining the restitution
amount, because the government had not proven that anyone had downloaded
images of the specific victims seeking restitution. But Massa does not contest that
he made the files available for download, and the district court need not provide
evidence sufficient to support a conviction for distributing child pornography
before it can consider that fact in crafting a restitution order. See, e.g., United
States v. Najjor, 255 F.3d 979, 984 (9th Cir. 2001) (“The district court has broad
discretion to determine the type and amount of evidence required to support an
award of restitution.”)

                                            2
relative role in the causal process that underlies [each] victim’s general losses,”

Paroline, 134 S. Ct. at 1727, the court awarded $8,000 to each of the victims

whose awards are at issue on appeal.

      The district court “assess[ed] as best it [could] from available evidence the

significance of the individual defendant’s conduct in light of the broader causal

processes that produced the victim[s’] losses.” Id. at 1727-28. This was not a

“precise mathematical inquiry,” but it “cannot” be. Id. at 1728. It would have been

helpful for the court to have provided more detail as to how it reached the $8,000

figure for each victim, and we encourage the court to do so on remand, but the

awards appear “reasonable and circumscribed,” and neither “token or nominal” nor

“severe.” Id. at 1727. We conclude that the method the court used to reach the

award amounts was neither contrary to Paroline nor an abuse of the district court’s

discretion. See United States v. Gordon, 393 F.3d 1044, 1051 (9th Cir. 2004)

(restitution orders are reviewed for abuse of discretion providing that they are

within the bounds of the statutory framework).

      The district court also did not err in failing to distinguish between losses

caused by the ongoing traffic in the victims’ images that happened before Massa

first accessed the images from the losses that happened after he first accessed the




                                           3
images. Paroline clarified that, in the “special context” of restitution for child

pornography victims:

       where it can be shown both that a defendant possessed a victim’s
       images and that a victim has outstanding losses caused by the
       continuing traffic in those images but where it is impossible to trace a
       particular amount of those losses to the individual defendant by
       recourse to a more traditional causal inquiry, a court applying § 2259
       should order restitution in an amount that comports with the
       defendant’s relative role in the causal process that underlies the
       victim’s general losses.

134 S. Ct. at 1728. This relaxed causation inquiry allows district courts to consider

“general losses” as a starting point for the restitution analysis, where “general

losses” refers to all of a victim’s losses stemming from traffic in his or her images

regardless of whether they were caused by any individual perpetrator at any

specific moment in time. Id.

       However, the district court did erroneously accept inflated loss estimates

from each of the three victims whose awards are on appeal. This was not yet

clearly established in this circuit at the time the district court calculated its award,

but we have since interpreted Paroline to require that “the losses, including

ongoing losses, caused by the original abuse of [each] victim should be

disaggregated from the losses caused by the ongoing distribution and possession of

images of that original abuse, to the extent possible.” United States v. Galan, 804



                                            4
F.3d 1287, 1291 (9th Cir. 2015). While we concluded above that a victim’s

“general losses” include all losses stemming from the traffic in his or her images,

they do not include losses stemming from the original sexual abuse that the images

document. Id. The district court erred to the extent that it accepted the victims’

total damage estimates even though these estimates did not distinguish losses

caused by the initial sexual abuse from those caused by ongoing traffic in images

of the abuse.

      We vacate the restitution order and remand for further proceedings.

      VACATED and REMANDED.




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