     Case: 11-20902       Document: 00512224213         Page: 1     Date Filed: 04/29/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 29, 2013

                                       No. 11-20902                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

WILLIAM GEORGE GAMMON,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:10-CR-340


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant William George Gammon pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2). Pursuant to 18 U.S.C. § 2259, the district court ordered restitution in the
amount of $125,000 to each of three victims. On appeal, Gammon argues that
the district court committed legal error by ordering restitution without finding
that he directly or proximately caused the victims’ harm or loss. Gammon also
argues that the district court abused its discretion by insufficiently explaining

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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the reasons for the restitution amount and failing to state whether it was
holding him jointly and severally liable. Because Gammon’s arguments are
precluded by our recent en banc decision in In re Amy Unknown, 701 F.3d 749
(5th Cir. 2012) (en banc), we affirm the district court’s restitution order.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In November 2008, the Bureau of Immigration and Customs Enforcement
Cyber Crimes Center (“ICE”) commenced an investigation into “DreamZone
CP”—a commercial website that provided access to child pornography for a fee.
The investigation revealed information on persons who had subscribed to the
child pornography service. ICE agents determined that defendant William
George Gammon (“Gammon”) had subscribed to the DreamZone CP child
pornography service, and received images and videos of child pornography via
the website in November 2008 and February 2009. Based on this information,
agents executed a search warrant on Gammon’s residence.                A forensic
examination of computer equipment seized from the residence revealed
approximately 9,271 images and 101 videos of child pornography.
      On May 26, 2010, a grand jury returned an indictment charging Gammon
with one count of possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). Gammon pleaded guilty on May 23, 2011. The
presentence investigation report calculated Gammon’s total offense level to be
29 with a Criminal History Category of I, resulting in a Guidelines calculation
of 87 to 108 months’ imprisonment. Three victims—“Misty,” “Vicky,” and “Jan-
Feb,” images of whom were found in Gammon’s possession—requested
restitution in excess of $3,000,000.
      On December 5, 2011, the district court imposed sentence. The court
departed downward from the Guidelines and imposed a sentence of 48 months’




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imprisonment and restitution in the amount of $375,000 ($125,000 to each of the
three victims who requested restitution) based on its estimate of the victims’
counseling costs for ten years.1
       Gammon timely appealed the court’s restitution order. On July 25, 2012,
the government moved to suspend briefing pending this court’s en banc decision
in Amy Unknown, 701 F.3d 749.                Although that motion was denied, we
subsequently ordered the parties to submit supplemental briefs addressing that
decision.
                            II. STANDARD OF REVIEW
       We review the legality of restitution orders de novo. United States v.
Arledge, 553 F.3d 881, 897 (5th Cir. 2008). If a restitution award is legally
permitted, the restitution amount is reviewed for an abuse of discretion. United
States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009).
                                   III. DISCUSSION
       Gammon raises two issues on appeal. Each implicates and is foreclosed
by our decision in Amy Unknown, 701 F.3d 749. First, Gammon argues that the
district court erred in ordering restitution under 18 U.S.C. § 2259 without first
finding that Gammon’s conduct was the direct or proximate cause of the victims’
claimed losses. Second, Gammon contends that the district court abused its
discretion by failing to explain its reasons for imposing the restitution amount,
as well as by not stating whether he was jointly and severally liable for the
victims’ losses. We address each argument below.
A.     Direct or Proximate Cause
       In Amy Unknown we set out a two-step framework for awarding
restitution under § 2259. 701 F.3d at 772–73. “First, the district court must
determine whether a person seeking restitution is a crime victim under

       1
         The restitution order clarified that the district court was awarding $124,000 to each
victim, and $1,000 in attorneys’ fees for each victim.

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§ 2259—that is, ‘the individual harmed as a result of a commission of a crime
under this chapter.’” Id. at 773 (quoting 18 U.S.C. § 2259(c)). “Second, the
district court must ascertain the full amount of the victim’s losses as defined
under § 2259(b)(3)(A)-(F), limiting only § 2259(b)(3)(F) by the proximate result
language contained in that subsection . . . .” Id.
      Gammon does not dispute that Misty, Vicky, and Jan-Feb are “crime
victim[s]” under § 2259(c). 18 U.S.C. § 2259(c). He argues only that, before
imposing restitution, the district court was required to find that he was a direct
or proximate cause of the victims’ losses. Section 2259(b) provides that “[t]he
order of restitution under this section 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).
      [T]he 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;
            (C) necessary transportation, temporary housing, and child
                  care expenses;
            (D) lost income;
            (E) attorneys’ fees, as well as other costs incurred; and
            (F) any other losses suffered by the victim as a proximate
                  result of the offense.
Id. § 2259(b)(3).
      We have held that “§ 2259 imposes no generalized proximate cause
requirement before a child pornography victim may recover restitution from a
defendant possessing images of her abuse.” Amy Unknown, 701 F.3d at 774.
Accordingly, although the district did not determine that Gammon’s conduct was
the direct or proximate cause of the victims’ injury, this was not legal error. The
district court only was required to make a finding of proximate cause if the
victims’ restitution request did not fall under § 2259(b)(3)(A)-(E), but instead


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                                   No. 11-20902

exclusively fell under § 2259(b)(3)(F)—“other losses suffered by the victim as a
proximate result of the offense.” 18 U.S.C. § 2259(b)(3). But here, the district
court ordered restitution for therapy expenses and legal fees, which respectively
fall under § 2259(b)(3)(A) and (E).
      Gammon’s contention that the district court committed legal error by
ordering restitution without first finding that his conduct was a direct or
proximate cause of the victims’ losses thus is without merit.
B.    Restitution Amount
      Gammon’s argument that the district court abused its discretion by failing
to explain how it arrived at the restitution amount, and by not stating whether
Gammon was jointly and severally liable, borrows heavily from our decision in
United States v. Wright, 639 F.3d 679 (5th Cir. 2011), withdrawn and superseded
by Amy Unknown, 701 F.3d 749.
      In Wright, a defendant convicted of possessing child pornography appealed
a district court’s restitution order, arguing “that the restitution order exceed[ed]
the amount of [the victim’s] losses that his offense caused.” Id. at 681. We held
that “the district court’s failure to give a reasoned analysis of how it arrived at
its award in a manner that allows for effective appellate review requires that we
vacate the order and remand for reconsideration.” Id. at 686. We rejected the
government’s suggestion that we affirm the case based on a theory of joint and
several liability “because it [was] unclear if the district court intended the order
to be joint and several.” Id. at 685. We further noted that “the district court’s
award of restitution for the victim’s counseling costs and not for other losses
belies the government’s argument that the district court intended to hold [the
defendant] jointly and severally liable . . . for all of [the victim’s] losses.” Id.
      Nevertheless, on en banc rehearing, we affirmed the district court’s
restitution order. Amy Unknown, 701 F.3d at 774. We acknowledged that “[t]he
district court did not explain why [the defendant] should not be required to pay

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for any of the other losses [the victim] requested.” Id. However, because the
government did not appeal the sentence and the victim did not seek mandamus
relief, we held that the sentence had to be affirmed. Id. (citing Greenlaw v.
United States, 554 U.S. 237, 246 (2008)).
      Elsewhere in our decision, we addressed the issue of joint and several
liability and observed that “[a]ny concern that individual defendants may bear
a greater restitutionary burden than others convicted of possessing the same
victim’s images . . . does not implicate the Eighth Amendment or threaten to
create an absurd result.” Id. at 772. This was because “[r]estitution is not tied
to the defendant’s gain; rather ‘so long as the government proved that the victim
suffered the actual loss that the defendant has been ordered to pay, the
restitution is proportional.’” Id. (quoting Arledge, 553 F.3d at 899). “Thus, the
fact that some defendants will be held jointly and severally liable for the full
amount of [a victim’s] losses, while other defendants convicted of possessing [a
victim’s] images may not be . . . does not offend the Eighth Amendment.” Id.
      Gammon contends that the district court abused its discretion by not
adequately explaining the restitution award. He does not explicitly argue that
the award was too high, merely that the district court was confused “as to the
basis and amount of restitution.” We agree with Gammon that the district court
should have explained in somewhat more detail the basis for its award.
However, the district court awarded restitution based on the estimated cost of
ten years’ counseling and the victims’ legal fees. This is comparable to the
district court’s restitution award in United States v. Wright, No. 09-CR-103 (E.D.
La. Dec. 16, 2009), which awarded restitution for the victim’s estimated future
counseling costs and expert witness fees, and which we affirmed in Amy




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Unknown, 701 F.3d at 774. Accordingly, the district court’s explanation was
adequate.2
       Nor does the district court’s failure expressly to state that it was holding
Gammon jointly and severally liable for the $375,000 restitution award require
vacatur.3 Having found that a district court’s decision to impose joint and
several liability on some defendants, but not others, does not violate the Eighth
Amendment, we also conclude that doing so does not constitute an abuse of
discretion. Although in Amy Unknown we instructed that a district court must
“ascertain the full amount of the victim’s losses . . ., and craft an order guided by
the mechanisms described in [18 U.S.C.] § 3664, with a particular focus on its
mechanism for joint and several liability,” this does not mean that we will
remand every case in which a district court fails to state whether a defendant is
jointly and severally liable. 701 F.3d at 773. Notably, we affirmed the district
court’s decision in Wright, No. 09-CR-103, despite that court not having
expressly held the defendant jointly and severally liable. See Amy Unknown,
701 F.3d at 752, 754.
       Accordingly, we find Amy Unknown’s disposition of Wright, No. 09-CR-103,
controlling. The district court’s explanation of why it was awarding $375,000
was adequate. Further, the district court did not abuse its discretion by failing
to clarify whether Gammon was jointly and severally liable. The district court
did not state that Gammon was jointly and severally liable for the victims’ total


       2
         Previously, we have held that a district court abuses its discretion where it fails to
explain why it is not awarding the full amount of restitution requested. See Amy Unknown,
701 F.3d at 774. However, as the government concedes, it has not appealed the district court’s
restitution order and the victims have not sought mandamus relief, and thus this does not
constitute a basis for vacatur. See id. (citing Greenlaw, 554 U.S at 246).
       3
        Gammon appears to believe that, absent clarification, he might be held jointly and
severally liable for restitution in excess of $3 million—the amount the victims originally
requested. In light of our decision to affirm the $375,000 restitution award, Gammon’s
concerns are unfounded.

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                                      No. 11-20902

losses, and Gammon’s liability therefore is limited to the $375,000 restitution
award.4
                                 IV. CONCLUSION
       For the aforementioned reasons, the district court’s restitution order is
AFFIRMED.




       4
        Of course, should a time come when the victims have been fully compensated,
Gammon could seek to suspend further restitution payments pursuant to 18 U.S.C. § 3664(k).
See Amy Unknown, 701 F.3d at 770 (observing that once a victim has recovered “the full
amount of her losses from one defendant, she can no longer recover from any other” (internal
quotation marks and citation omitted)).

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