                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 13a0110p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                             X
                         Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                              -
                                              -
                                              -
                                                              No. 11-6131
           v.
                                              ,
                                               >
                                              -
                                              -
 CHRISTOPHER HARGROVE, aka John

                       Defendant-Appellant. N-
 Christopher Hargrove,


                      Appeal from the United States District Court
                   for the Middle District of Tennessee at Nashville.
                No. 3:08-cr-14-1—William J. Haynes, Jr., District Judge.
                            Decided and Filed: April 19, 2013
        Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge.*

                                    _________________

                                          COUNSEL
ON BRIEF: C. Douglas Thoresen, Andrew Brandon, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Richard A. Friedman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., S. Carran
Daughtrey, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for
Appellee.
       STRANCH, J., delivered the opinion of the court, in which BELL, D. J., joined,
and CLAY, J., joined in part. CLAY, J. (pp. 9–14), delivered a separate opinion
concurring in part and in the judgment.




        *
        The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.


                                                1
No. 11-6131        United States v. Hargrove                                        Page 2


                                  _________________

                                       OPINION
                                  _________________

       JANE B. STRANCH, Circuit Judge. Christopher Hargrove pled guilty to
possession of child pornography. Among the hundreds of images he possessed were
those of three child victims who are now adult women known by their pseudonyms,
“Vicky,” “Amy,” and “L.S.” At sentencing the district court ordered Hargrove to pay
restitution to these victims. The court also imposed contingent joint and several liability
on Hargrove in the event the victims are unable to acquire necessary resources to pay for
their psychological treatment from defendants convicted in other cases who also viewed
the images and videos. Hargrove asks us to set aside the restitution order because the
court did not require the government to prove that he caused actual and proximate harm
to the victims and because the court lacked authority to enter the contingent restitution
order. In light of our decisions in United States v. Gamble, 709 F.3d 541 (6th Cir. 2013),
and United States v. Evers, 669 F.3d 645 (6th Cir. 2012), we vacate the restitution order
and remand the case to the district court for further proceedings.

                            I. PROCEDURAL HISTORY

       Forensic examination of Hargrove’s computer revealed more than eight hundred
images and sixteen videos depicting the sexual exploitation of children. “L.S.” appeared
in eight of those images, “Amy” in three images, and “Vicky” in one video. In January
2008 the government indicted Hargrove on two counts of transporting child pornography
in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1) & (b)(1); one count of
receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1); and
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(1).
Nearly one year later Hargrove pled guilty to the possession charge under a plea
agreement with the government and then absconded.

       Upon return to federal custody, Hargrove pled guilty in a separate case to a
charge of failure-to-appear, in violation of 18 U.S.C. §§ 3146(a)(1), (b)(1)(A)(ii), &
No. 11-6131        United States v. Hargrove                                        Page 3


3147(1). The court consolidated the two cases and pronounced a sentence of 60 months
in prison on the child pornography offense and 12 months in prison on the failure-to-
appear offense, to be served consecutively. The court also imposed twenty years of
supervised release.

       Based on expert reports and other materials, the victims claimed they had
incurred substantial losses, primarily for psychological treatment: “Amy,” over $3.3
million; “Vicky,” over $148,000; and “L.S.,” $150,000. The court found that the
mandatory restitution statute, 18 U.S.C. § 2259, supplied “statutory causation” to
support restitution, but held that apportionment of the victims’ losses was appropriate
because other courts also had awarded restitution to the same victims in other cases. The
court ordered Hargrove to pay $3,000 in restitution to each victim. As an alternative, the
court imposed joint and several liability on Hargrove in the amount of $150,000 for each
victim “if it turns out these victims aren’t getting the care that they need for reason of
lack of money.” R. 166 Page ID 974.

       In this timely appeal, Hargrove challenges only the restitution order. He does not
raise any issue concerning his convictions or the other aspects of his sentences.

                           II. STANDARD OF REVIEW

       “We review de novo the question whether restitution is permitted under the law.”
Evers, 669 F.3d at 654 (citing United States v. Jones, 641 F.3d 706, 713 (6th Cir. 2011)).
If restitution is permissible, we review the amount of restitution imposed by the court
for abuse of discretion. Id. The government has the burden to prove the amount of the
victim’s loss by a preponderance of the evidence. 18 U.S.C. §§ 2259(b)(2), 3664(e);
Evers, 669 F.3d at 654–55.

                                   III. ANALYSIS

       The parties agree that the district court erred when it ordered restitution under
§ 2259 without requiring the government to demonstrate that any of the losses sustained
by “Vicky,” “Amy,” and “L.S.” were proximately caused by Hargrove’s offense. The
parties rely on Evers, 669 F.3d at 659, where we held that the government must prove
No. 11-6131        United States v. Hargrove                                       Page 4


proximate cause with respect to all categories of losses set forth in § 2259(b)(3)(A)–(F)
before restitution may be ordered. The district court did not have the benefit of Evers
because we issued that opinion nearly six months after Hargrove’s sentencing.

       More recently, in Gamble, we considered two child pornography cases in which
the district court required each defendant, jointly and severally, to pay over $1 million
in restitution to “Vicky.” Gamble, 709 F.3d at 542. Applying Evers, we held that the
government bears the burden to “show that the costs incurred by the victim were
proximately caused by the defendant’s offense.” Id. at 546.

       We explained in Gamble that a child pornography victim may recover restitution
under § 2259 upon a showing that the defendant’s conduct is a cause-in-fact of the
victim’s harm—in other words, the defendant actually caused the victim’s losses—and
the defendant’s conduct proximately caused the victim’s harm. See id. at 547. To be
proximately caused, the harm must be reasonably foreseeable. Id. at 549.

       Hargrove principally contends that the victims cannot show he is the cause-in-
fact of their injuries because there is no evidence that the victims knew he possessed and
viewed their pornographic images or that the victims’ injuries were more severe because
he obtained and viewed their images.         Additionally, he argues that he did not
proximately cause harm to the victims because any harm resulting from his anonymous
Internet downloads was “remote” and “indirect.”

        Some courts have adopted reasoning similar to Hargrove’s. See e.g., United
States v. Aumais, 656 F.3d 147, 154–55 (2d Cir. 2011) (holding defendant did not
proximately cause “Amy’s” loss because he was not a “substantial cause” of her harm);
United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir. 2011) (finding no proof of
causal connection between defendant’s offense and specific losses of “Amy” and
“Vicky”); United States v. Monzel, 641 F.3d 528, 538 (D.C. Cir. 2011) (finding no
showing that “Amy’s” losses were traceable to the defendant). But we expressly
rejected such reasoning in Gamble, stating that “[a] cause-in-fact requirement does not
necessarily mean that defendants of whom Vicky is unaware have not caused her
losses . . . . Vicky’s losses result from the knowledge that her image is being generally
No. 11-6131         United States v. Hargrove                                        Page 5


circulated, and a district court could find that defendants like Crawford contributed to
that knowledge.” Gamble, 709 F.3d at 549 n.1 (citing United States v. Kearney,
672 F.3d 81, 98–99 (1st Cir. 2012)).

        In Kearney, the child pornography possessor tried to use a but-for causation
standard to limit “Vicky’s” reasonably foreseeable losses arguing that, “because so many
have seen and distributed the pornography, his contribution cannot be said to have
caused any harm absent specific linkage to Vicky’s knowledge about him.” Kearney,
672 F.3d at 98. But Vicky’s losses result from the knowledge that her image is being
generally circulated by multiple actors. As a result of that circulation, the emotional
harm she suffers is worse than would otherwise be the case. See id. “When the conduct
of two or more actors is so related to an event that their combined conduct, viewed as
a whole, is a but-for cause of the event, and application of the but-for rule to each of
them individually would absolve all of them, the conduct of each is a cause in fact of the
event.” Id. (quoting W. Page Keeton et al., Prosser and Keeton On The Law Of Torts
§ 41, at 268 (5th ed. 1984)). Under this reasoning, Hargrove’s conduct in possessing and
viewing the victims’ pornographic images is a but-for cause of the victims’ harm. See
Gamble, 709 F.3d at 556 (Kethledge, J., concurring in part and concurring in the
judgment) (“I would . . . adopt the First Circuit’s rule of aggregate causation (though
only for purposes of determining actual cause.) See United States v. Kearney, 672 F.3d
81, 98 (1st Cir. 2012). And where that test is met, as it is here, I would simply move on
to the issue of proximate causation.”).

        To the extent Hargrove’s argument relates to “proximate causation, rather than
but-for causation, the same reasoning applies to reject his contention.” See Kearney,
672 F.3d at 98. Proximate cause exists “even where ‘none of the alternative causes is
sufficient by itself, but together they are sufficient’ to cause the harm.” Id. (quoting
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 reporters’
n. cmt. g. (2010); id. § 36 cmt. a (“[E]ven an insufficient condition . . . can be a factual
cause of harm when it combines with other acts to constitute a sufficient set to cause the
harm . . . .”)). Because proximate cause “exists on the aggregate level . . . there is no
No. 11-6131         United States v. Hargrove                                        Page 6


reason to find it lacking on the individual level.” Id. Upon adopting the First Circuit’s
reasoning in Kearney, the Fourth Circuit observed that, “[g]iven the nature of the harm
inflicted by purveyors and viewers of child pornography on their victims . . .
employment of the concept of aggregate harm in the proximate causation analysis best
effectuates the express intent of the restitution statute.” United States v. Burgess, 684
F.3d 445, 459–60 (4th Cir. 2012).

        Our analysis based on Kearney is fully consistent with Gamble. There we
explained that harm must be reasonably foreseeable to be proximately caused by the
defendant’s criminal conduct, and “if the injury is the type that the statute was intended
to prohibit,” it is more likely that the injury was proximately caused by the defendant.
Id. at 549. Because “[t]he harm endured by the subject of child pornography upon
realizing that others are viewing her image is part of what the child pornography
prohibitions are designed to deter” and where the statute specifically permits restitution
for injury in the form of mental distress, the “attendant costs, to the extent factually
caused by the viewing, are proximately caused.” Id. at 550. Even if a child pornography
victim “suffers very unusual psychosomatic injuries as a result of knowing that her
mistreatment and humiliation are being viewed by others, those injuries are still part of
the harm that the laws against child pornography are trying to avoid.” Id. Likewise,
attorney’s fees incurred when undertaking reasonable efforts to obtain restitution for
mental harm are proximately caused. Id. But some losses may not be recoverable
because they do not stem from the type of injury the statute was intended to prohibit.
For instance, although § 2259(b)(3)(C) allows restitution for necessary child care
expenses, the “loss of a sex offender as a babysitter” is not “the sort of harm
contemplated by the statute’s drafters” and thus, proximate cause does not exist to justify
restitution for child care costs incurred to replace that babysitter. Id. (citing Evers, 669
F.3d at 660).

        The language of § 2259, the remedial nature of the provision, and its mandatory
requirement that the defendant pay the “full amount of the victim’s losses” all point to
the expansive categories of harm § 2259 seeks to redress. But whether the injuries
No. 11-6131         United States v. Hargrove                                        Page 7


alleged by each victim in this case fall within the scope of § 2259 so that the injuries are
more likely to be proximately caused is an inquiry reserved for the district court on
remand. If the government carries its burden to prove that a restitution award for
“Vicky,” “Amy,” or “L.S.” is appropriate, the court must consider that the defendant is
not responsible for harm that occurred before the date of his offense. See Gamble,
709 F.3d at 554. Costs for the harms Hargrove proximately caused that are “clearly
traceable” to him—such as the victims’ attorney’s fees incurred in seeking restitution in
this case—may be assessed directly to him. See id. And where the court must allocate
restitution for aggregate harm caused by multiple defendants, the court may, as one
option, apportion the restitution award using the formula described in the government’s
appellate brief and approved by this court in Gamble. Id.

        Undertaking such an analysis, the district court would first determine “the pool
of a victim’s provable losses that are not traceable to a single defendant using the
proximate cause standard” elucidated in Gamble and then divide that figure by the
number of “convicted possessors” supplied by the government from its database of
convicted child pornography defendants. See id. But “[d]ifferent divisors may be
reasonable,” and the government’s “apportionment proposal is not necessarily the only
way to calculate restitution” in these kinds of cases. Id. District courts may consider
other formulas or procedures for allocating restitution to redress the victims’ injuries,
keeping in mind that the method chosen must “fairly implement Congress’s goals.” Id.
Courts may not apportion restitution by imposing joint and several liability, as was done
here. See id. at 550–53.

                                  IV. CONCLUSION

        Were we writing on a blank slate, our opinion would have examined more
thoroughly the thoughtful analysis undertaken by the concurrence. But in light of
Gamble and Evers, we are compelled to conclude that the district court’s method of
awarding restitution to “Vicky,” “Amy,” and “L.S.” amounted to an abuse of discretion.
Because the district court did not have the guidance of Gamble, Evers, or this opinion
No. 11-6131       United States v. Hargrove                                  Page 8


when it sentenced Hargrove, we now provide the court with an opportunity to consider
the impact of these cases on Hargrove’s sentence.

       We VACATE the restitution order and REMAND the case for further
proceedings consistent with this opinion, Gamble, and Evers. On remand, the district
court may consider the restitution award for each victim de novo, exercising its
discretion to admit new evidence or argument.
No. 11-6131         United States v. Hargrove                                        Page 9


           ____________________________________________________

              CONCURRING IN PART AND IN THE JUDGMENT
           ____________________________________________________

        CLAY, Circuit Judge, concurring in part and concurring in the judgment. I
concur in much of the majority’s opinion and in the judgment because I find, as does the
majority, that the outcome of this case is largely controlled by our recent decision in
United States v. Gamble, 709 F.3d 541 (6th Cir. 2013). I write separately, however, to
express my dissatisfaction with Gamble’s method for apportioning restitution among
defendants convicted of child pornography possession offenses.

        Admittedly, these cases pose significant challenges. Courts must attempt to
determine whether and to what extent possessors of child pornography are financially
responsible for the harm suffered by the victims of these horrific crimes. We are called
upon to apply traditional principles of restitution to a crime that has no obvious
analogue—a crime whereby individual victims are harmed by the ongoing conduct of
numerous independent perpetrators. In this unusual context, it is vital that district courts
have all available sentencing options at their disposal, including joint and several
liability, which Gamble unfortunately rejects.

        As an initial matter, Gamble properly concludes that the mandatory victim
restitution statute, 18 U.S.C. § 2259, requires the government to prove that a victim’s
losses were proximately caused by the defendant’s conduct. Gamble, 709 F.3d at 547
(citing United States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012)). To satisfy the
requirement of proximate cause, a victim’s losses must be “directly attributable” to and
a “reasonably foreseeable” result of the defendant’s conduct. Id. I have no quarrel with
that standard, but for all the ink spilled over the issue of proximate cause in these cases,
it gets us no closer to a satisfying method of determining what portion of a victim’s
losses, if any, should be charged to any individual defendant. See United States v.
Burgess, 684 F.3d 445, 462 (4th Cir. 2012) (Gregory, J., concurring in part, dissenting
in part, and concurring in the judgment) (“The question of whether a defendant
No. 11-6131        United States v. Hargrove                                      Page 10


proximately caused some injury is entirely separate from the question of how those
proximately caused losses should be allocated among several offenders.”).

       The discussion of proximate cause in Gamble is not terribly helpful because the
analysis of causation, both proximate (legal) and but-for (factual), is relatively
straightforward once traditional tort-law principles of aggregate causation are employed.
Defendants in these cases argue that the diffuse and anonymous nature of their conduct
precludes a finding that they were the factual causes of any injuries. The majority
properly clarifies that which Gamble left somewhat vague, that even if conduct is
insufficient by itself to cause a given harm, liability attaches when the conduct is
sufficient to cause the harm when combined with the wrongful conduct of others. See
Maj. Op. at 5; see also Gamble, 709 F.3d at 556 (Kethledge, J., concurring); Restatement
(Third) of Torts: Liability for Physical & Emotional Harm § 27 cmt. f (2010). If the
opposite rule were adopted, each defendant would be able to escape restitution even
though it is undisputed that the defendants’ collective action caused the victims’ harm.

       Once factual causation is established, we next ask whether the victims’ losses
were proximately caused by a given defendant’s conduct. The majority properly uses
the same theory of aggregate causation to find proximate cause in this case. Maj. Op.
at 5; see also United States v. Kearney, 672 F.3d 81, 98 (1st Cir. 2012) (“Proximate
cause . . . exists on the aggregate level, and there is no reason to find it lacking on the
individual level.”). Because each possessor of child pornography contributes to the
conduct that undisputably causes harm to the victims, that harm is “directly attributable”
to the perpetrators and, with a few small exceptions, is “reasonably foreseeable.”
Gamble, 709 F.3d at 547; Evers, 669 F.3d at 660 (finding that the “loss of a sex offender
as a babysitter” was not a foreseeable result of a child pornography offense).

       After a defendant is found to be both a factual and proximate cause of a victim’s
harm, the statute requires an order of restitution for “the full amount of the victim’s
losses.” 18 U.S.C. § 2259(b)(1). Under the theory of aggregate causation that both
Gamble and the majority endorse, each defendant should be considered to have caused
the entirety of the victim’s harm. Yet both favor grafting an apportionment regime onto
No. 11-6131         United States v. Hargrove                                     Page 11


the proximate cause requirement. Gamble even acknowledges this by stating that the
question of apportionment “is in a sense distinct from that of proximate causation,
because if the injuries for which Vicky seeks restitution were caused in fact by the
defendants, most of the types of damages she seeks are proximate.” Gamble, 709 F.3d
at 551. However, in an effort to avoid “unlimited liability for a single action,” Gamble
goes on to sanction a needlessly rigid apportionment scheme and reject the obvious
solution of joint and several liability.

        As with restitution in other criminal contexts, the statute empowers the district
courts to issue and enforce restitution orders in child pornography cases according to the
procedures outlined in 18 U.S.C. § 3664. See 18 U.S.C. § 2259(b)(2). Among these
procedures is § 3664(h), which states:

        If the court finds that more than 1 defendant has contributed to the loss
        of a victim, the court may make each defendant liable for payment of the
        full amount of restitution or may apportion liability among the
        defendants to reflect the level of contribution to the victim’s loss and
        economic circumstances of each defendant.

Id. § 3664(h). By authorizing joint and several liability or apportionment at the district
court’s discretion, this provision gives the district courts appropriately wide latitude to
fashion restitution awards to best effectuate the statute’s purpose of fully compensating
victims. As the en banc Fifth Circuit has held, the mechanism of joint and several
liability authorized by § 3664(h) “applies well in these circumstances, where victims [of
child pornography] are harmed by defendants acting separately who have caused [them]
a single harm.” In re Amy Unknown, 701 F.3d 749, 769 (5th Cir. 2012).

        Several courts have held that the joint and several liability envisioned in
§ 3664(h) applies only when multiple defendants are sentenced in the same proceeding
before the same district court. See United States v. Fast, 709 F.3d 712, 723 n.6 (8th Cir.
2013); United States v. Laraneta, 700 F.3d 983, 992–93 (7th Cir. 2012); United States
v. Aumais, 656 F.3d 147, 156 (2d Cir. 2011); United States v. Monzel, 641 F.3d 528, 539
(D.C. Cir. 2011); cf. United States v. McGlown, 380 F. App’x 487, 491 (6th Cir. 2010)
(finding that § 3664(h) does not apply where non-defendants contributed to a victim’s
No. 11-6131         United States v. Hargrove                                       Page 12


loss, but declining to address whether defendants must be part of the same case). These
cases overread the statute. If a sentencing judge can order each defendant in a multi-
defendant case to pay the full amount of a victim’s losses, there is no reason to prohibit
the judge from doing the same thing when other defendants were convicted of the same
crime in other jurisdictions. See In re Amy Unknown, 701 F.3d at 770 (“[N]othing in
§ 3664 forbids [joint and several liability], either expressly or through implication; the
fact that it conforms well to this context supports its application.”); Fast, 709 F.3d at 727
(Shepherd, J., concurring in part and dissenting in part).

        Traditional tort-law principles also counsel in favor of giving district judges the
option of joint and several liability in this context. In a typical multi-defendant tort
action, an indivisible injury caused by numerous defendants would lead to the imposition
of joint and several liability, with the risk that some defendants will be unable to pay
borne by the other defendants, not the victim. See Restatement (Third) of Torts:
Apportionment of Liability § A18, cmt. a (2000). The historical policy decision to shift
the burden of insolvency from tort plaintiffs to defendants fits perfectly with the
statutory goal of fully compensating victims of child pornography. See S. Rep. No. 103-
138, at 56 (1993) (stating that mandatory restitution for victims of sex crimes is designed
to create an assumption that defendants will pay the victims’ expenses).

        Gamble and other courts have rejected joint and several liability because
defendants in these cases are either functionally or legally prohibited from seeking
contribution from each other. See Gamble, 709 F.3d at 552; Laraneta, 700 F.3d at 992
(citing Northwest Airlines, Inc. v. Transport Workers Union of America AFL-CIO,
451 U.S. 77, 96–97 (1981)). However, even without a right of contribution, the statutory
scheme contains mechanisms to ensure that defendants are not saddled with unfair or
arbitrary restitution awards.

        The district courts are given discretion to enforce the awards through all
“available and reasonable means,” 18 U.S.C. § 3664(m)(1)(A)(ii), including establishing
a payment schedule after considering the defendant’s financial resources, assets,
projected future income, and financial obligations, id. § 3664(f)(2). If the defendant’s
No. 11-6131         United States v. Hargrove                                       Page 13


financial circumstances change, the district court may “adjust the payment schedule, or
require immediate payment in full, as the interests of justice require.” Id. § 3664(k).
Using information provided either by the victims themselves or the government, district
courts would also be able to adjust or halt the payment of restitution once a victim is
fully compensated. See Burgess, 684 F.3d at 462 (Gregory, J., concurring in part,
dissenting in part, and concurring in the judgment) (“While joint and several liability
gives the plaintiff the option of collecting from any defendant she chooses, she may not
recover more than her total loss.”).

        Joint and several liability may not always be appropriate, but it should be one
option available to the district courts when they order defendants to pay restitution to the
victims of child pornography. That option seems especially appropriate in cases such
as this, where victims were harmed by the knowledge that people like Defendant were
viewing images of their abuse, and their harm is not susceptible to division. However,
if the district court were presented with evidence that a given defendant was more or less
culpable than other possessors of child pornography, the statute empowers the court to
“apportion liability among the defendants to reflect the level of contribution to the
victim’s loss.” 18 U.S.C. § 3664(h).

        The formula endorsed by Gamble does not give the district courts the freedom
to make these individualized inquiries into the facts and circumstances of a
particular defendant’s crime. Gamble purports to acknowledge that district courts have
“considerable discretion” to fashion appropriate restitution awards, but then proceeds to
narrow that discretion by recommending adherence to a rote formula. Gamble, 709 F.3d
at 554. Instead, the district courts should be free to impose restitution based on facts that
bear on a defendant’s culpability relative to other defendants as well as the nature and
extent of the victims’ losses. Judge Kethledge identified a number of these factors in his
concurring opinion in Gamble; they include “whether the defendant produced or
distributed images of the victim” and “how many images the defendant possessed.”
Gamble, 709 F.3d at 557 (Kethledge, J., concurring). If the district court concludes that
it can separate out a victim’s losses and apportion restitution based on factors such as
No. 11-6131         United States v. Hargrove                                       Page 14


these, it should have the discretion to do so. On the other hand, if the district court finds
that the harm done is truly indivisible and cannot be meaningfully apportioned among
defendants, it should have the discretion to impose joint and several liability based on
the aggregate or cumulative harm suffered by the victim.

        To accomplish the difficult task of assigning financial responsibility to
possessors of child pornography for the harm caused by their conduct, district judges
should have all the tools provided by law at their disposal and should be permitted broad
discretion to fashion an appropriate remedy—something that Gamble’s formulaic
approach utterly fails to do. Although Gamble suggests that other allocation formulas
or procedures for determining restitution may be used, it fails to describe any method
other than the one it approves, and it specifically rejects joint and several liability. The
district courts should be permitted to apportion a victim’s losses based on individualized
determinations, impose joint and several liability, or devise alternative methods for
allocating varying degrees of fault among perpetrators. I disagree with Gamble to the
extent that it excludes these options and severely circumscribes the district courts’
discretion, but because I acknowledge Gamble’s binding authority, I respectfully concur
in the Court’s judgment.
