         11-2488-cr(L)
         United States v. Sanderson

                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of March, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges,
 9                VINCENT L. BRICCETTI,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18
19                        -v.-                                       Nos. 11-2488-cr(L),
20                                                                        11-2608-cr(CON),
21                                                                        12-321-cr(CON)
22       JARELL SANDERSON, HASSANAH DELIA
23
24                                       Defendants-Appellants.
25
26
27       FOR SANDERSON:                  RANDOLPH Z. VOLKELL, Merrick, NY.
28
29       FOR DELIA:                      RANDALL D. UNGER, Bayside, NY.

                 *
                The Honorable Vincent L. Briccetti, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1   FOR APPELLEE:        DAVID E. NOVICK, Assistant United States
 2                        Attorney (Sandra S. Glover, Assistant
 3                        United States Attorney, on the brief),
 4                        for David B. Fein, United States Attorney
 5                        for the District of Connecticut.
 6
 7        Appeal from the United States District Court for the
 8   District of Connecticut (Kravitz, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the order is AFFIRMED.

12        Defendants-appellants Jarell Sanderson and Hassanah

13   Delia appeal from judgments of conviction entered against

14   them by the United States District Court for the District of

15   Connecticut (Kravitz, J.) following guilty pleas by both

16   defendants.     Sanderson challenges the district court’s

17   imposition of a Sentencing Guidelines enhancement, and Delia

18   challenges the court’s restitution order.     We assume the

19   parties’ familiarity with the facts and procedural history

20   of the case.

21   I.   Sanderson

22        Sanderson pled guilty to two counts of Sex Trafficking

23   of a Minor, in violation of 18 U.S.C. § 1591(a) and (b), and

24   one count of Conspiracy to Commit Sex Trafficking of a

25   Minor, in violation of 18 U.S.C. § 1594(c).     He contends on

26   appeal that the district court erred in imposing a two-level

27   enhancement under U.S.S.G. § 2G1.3(b)(2)(B), which applies

                                     2
1    if “a participant [] unduly influenced a minor to engage in

2    prohibited sexual conduct.”     We review a legal application

3    of the Guidelines de novo and any underlying factual

4    findings for clear error.     United States v. Cossey, 632 F.3d

5    82, 86 (2d Cir. 2011) (per curiam).

6        The commentary to § 2G1.3(b)(2)(B) indicates that there

7    is a “rebuttable presumption that subsection (b)(2)(B)

8    applies” if the participant is at least ten years older than

9    the minor.   Sanderson does not dispute that he is.

10   Moreover, although Sanderson is correct that factual

11   determinations underlying a Guidelines calculation must be

12   made “with sufficient clarity to permit meaningful appellate

13   review,” United States v. Skys, 637 F.3d 146, 152 (2d Cir.

14   2011), “this obligation may be satisfied by explicitly

15   adopting the factual findings set forth in a defendant’s

16   presentence report.”     United States v. Watkins, 667 F.3d

17   254, 261 (2d Cir. 2012) (internal quotation marks and

18   brackets omitted).     The district court in this case stated

19   that it was “adopt[ing] the factual statements in the

20   presentence report as the Court’s own findings of fact for

21   purposes of this sentencing.”       Special App’x 51.

22


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1           We have held that if a defendant is subject to the age-

2    based presumptive application of (b)(2)(B) and has “failed

3    to offer any evidence rebutting the presumption on this

4    basis,” the district court is “free to make its finding of

5    ‘undue influence,’ without further explanation, on the basis

6    of the unrebutted presumption alone.”     Watkins, 667 F.3d at

7    265.    In addition, a “district court that adopts the factual

8    findings of a defendant’s PSR is not required explicitly to

9    provide any further analysis.”     Id. at 266.   None of the

10   statements to which Sanderson points on appeal can be

11   construed as evidence rebutting the presumption.     As such,

12   we find no error in the district court’s application to

13   Sanderson of the two-level enhancement under §

14   2G1.3(b)(2)(B).

15   II. Delia

16          Delia’s only assertion on appeal is that the district

17   court failed to adequately support its imposition of

18   $25,608.80 in restitution for a victim’s future

19   psychological and psychiatric treatment.    During Delia’s

20   sentencing, the district indicated that restitution would be

21   a part of the sentence but did not specify an amount.     After

22   the government submitted a proposed amount, supported by a


                                    4
1    letter from a social worker who had worked extensively with

2    the victim after the encounter at issue in this case, the

3    district court entered an order adopting the government’s

4    proposed figure without further explanation.

5        “We review an order of restitution deferentially, and

6    we will reverse only for abuse of discretion.”        United

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

8    (quotation marks omitted).        Delia does not argue that the

9    district court lacked the power to order restitution for

10   future treatment.    Instead, she points to our recognition

11   that such orders “may be inappropriate where the amount of

12   loss is too difficult to confirm or calculate.”        Id. at 486

13   (quotation marks and brackets omitted).        She maintains that,

14   as in Pearson, the district court here “did not explain how

15   it estimated the victim[‘s] future expenses” and urges us to

16   “remand the case [] to secure a more thorough explanation

17   from the district court as to the basis for its restitution

18   determination.”     Id. at 487.

19       Because the district court adopted the government’s

20   proposed figure in this case, the major problem in Pearson –

21   the court’s failure to explain how it reached its ultimate

22   figure, which differed from what had been proposed – is not


                                        5
1    present.   Delia’s challenge is more properly viewed as a

2    contention that the social worker’s letter did not provide a

3    sufficient basis in evidence for the district court to come

4    to its conclusion.

5        Delia’s concerns are not frivolous, and we recognize

6    the difficulty inherent in projecting future medical costs

7    with certainty and the necessity of basing a restitution

8    amount on reliable evidence.    However, we find no error in

9    the district court’s order.    The government’s proposed

10   figure was supported by the affidavit of a licensed social

11   worker who had worked extensively with the victim, and who

12   stated that she based her conclusions regarding future need

13   for care upon her professional experience.    The social

14   worker’s total cost estimate was much higher than the

15   restitution amount ultimately imposed – it was discounted

16   (based on the social worker’s calculation) to reflect other

17   sources of trauma in the victim’s life, and it did not

18   account for possible inflation or increases in the cost of

19   care.   Moreover, although Delia filed objections to the

20   government’s submission, she neither requested a hearing at

21   which the social worker could be cross-examined nor

22   submitted any evidence rebutting the social worker’s

23   contentions.

                                    6
1        Under these circumstances, the district court did not

2    abuse its discretion in adopting the government’s proposed

3    figure. See United States v. Doe, 488 F.3d 1154, 1160 (9th

4    Cir. 2007) (an award will be upheld “if the district court

5    is able to estimate, based upon facts in the record, the

6    amount of victim’s loss with some reasonable certainty.”);

7    cf. United States v. Julian, 242 F.3d 1245, 1248 (10th Cir.

8    2001) (remanding for a hearing where the “presentence report

9    contained no evidence regarding the victim’s need for future

10   counseling or the estimated cost of that counseling”).

11        We have considered all of appellants’ arguments and

12   find them to be without merit.   For the reasons stated

13   above, the judgment of the district court is AFFIRMED.

14
15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18




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