                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               SEP 11 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30074

              Plaintiff-Appellee,                D.C. No. 6:16-cr-00001-CCL-1

 v.
                                                 MEMORANDUM*
RICHARD CHARLES SAARI,

              Defendant-Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                   Charles C. Lovell, District Judge, Presiding

                      Argued and Submitted August 30, 2018
                               Seattle, Washington

Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.

      Richard Saari pled guilty to receipt of child pornography, 18 U.S.C.

§ 2252(a)(2). He was ordered to pay restitution to the victim’s mother pursuant to

18 U.S.C. § 2259 and a $5,000 assessment under the Justice for Victims of

Trafficking Act (JVTA). Saari argues that the district court’s restitution award was



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in error because there is no evidence that his conduct was the direct or proximate

cause of the mother’s losses. He also asks the court to reverse the district court’s

finding that he is non-indigent for purposes of the JVTA.

      For the following reasons, we reverse the District Court’s restitution

calculation as inconsistent with the apportionment analysis adopted in Paroline v.

United States, 572 U.S. 434 (2014), and remand for further proceedings consistent

with that analysis. We affirm the District Court’s finding of indigency.

      Under 18 U.S.C. § 2259, persons who commit certain sex offenses are liable

for the “full amount of the victim’s losses,” including costs incurred by “the legal

guardian of [a minor] victim” for her own “physical, psychiatric, or psychological

care.” 18 U.S.C. § 2259(a), (b)(3)(A), (c). Here, the victim’s mother requested

restitution in the amount of $20,857.32 for past and future therapy costs. She

reached that figure by adding $3,757.32 in past medical and counseling costs to

projected medical and counseling expenses over a five-year period—the amount of

future therapy recommended by her therapist. She calculated her future counseling

costs based solely on her $60/week co-pay, not the full cost of the future

counseling session. The district court found that “[t]he mother did have a pre-

existing condition. But that has been exacerbated by the defendant’s criminal




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conduct.” It then awarded the victim’s mother the full $20,857.32 she sought in

restitution.

       In Paroline v. United States, 572 U.S. 434 (2014), the Supreme Court held

that “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.” Id. at 458. Paroline was concerned with the exacerbated harm

caused by multiple viewers of the same pornographic image. Id. at 441. But the

same principle applies here where Saari’s actions have exacerbated the mother’s

pre-existing trauma. The District Court recognized that Saari’s conduct only

exacerbated a pre-existing condition, but it did not engage in the apportionment

analysis that Paroline requires. On remand, the District Court should “assess as

best it can from available evidence the significance of the individual defendant’s

conduct in light of the broader causal process that produced the victim’s losses,”

id. at 459, and award a proportional amount in restitution. Section 2259(b)(1)

requires a court to order restitution for “the full amount of the victim’s losses.”

(emphasis added). The District Court thus may consider the full cost of the

mother’s future counseling, and not just her future co-pays, when calculating her

general losses as part of the apportionment analysis.




                                           3
      With regard to the JVTA assessment, Saari has provided no credible

argument that the District Court’s finding of indigence was clearly erroneous or

that its method of determining indigence was legally insufficient.

      We VACATE the District Court’s restitution award and REMAND for

further proceedings consistent with this disposition. We AFFIRM the District

Court’s judgment as to the $5,000 JVTA award.



VACATED and REMANDED in part. AFFIRMED in part.




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