In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4251

United States of America,

Plaintiff-Appellee,

v.

David Karl Danser,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-98-161-CR-01-T/F--John D. Tinder, Judge.

Argued September 26, 2001--Decided October 25, 2001



  Before Flaum, Chief Judge, and Coffey and
Manion, Circuit Judges.

  Flaum, Chief Judge. David Karl Danser
appeals the sentence imposed by the
district court after his trial and
conviction on three felony counts
associated with his improper sexual
conduct with his minor daughter. For the
reasons stated herein, we vacate in part
and affirm in part the sentence of the
district court.

I.   BACKGROUND

  David Karl Danser ("Danser") was tried
and convicted on three felony counts for
actions arising out of his sexual
relationship with his nine-year-old
daughter ("Karen Doe"). Count I charged
Danser with creating sexually explicit
photographs of his minor daughter and
knowingly transporting those photographs
across state lines. Count II charged
Danser with crossing a state line with
the intent to engage in a sexual act with
a child under the age of 12. Count III
charged Danser with being in possession
of three or more pieces of child
pornography.

  After the district court rendered a
guilty verdict, it ordered a pre-sentence
report prepared. On the issue of
restitution, the pre-sentence report
indicated that the government planned to
seek restitution for both the past costs
of Karen Doe’s psychological treatments
and the anticipated future costs of those
treatments. The government calculated
that Karen Doe should be awarded $309,270
in restitution. Of that amount, $304,200
was to be awarded to Karen Doe for the
anticipated costs of future therapy./1
The pre-sentence report noted that the
terms of any supervised release must run
concurrently.

  The sentencing hearing was held on
December 7, 1999. At the hearing, Karen’s
therapist testified to the severe mental
and physical trauma that she had
sustained as a result of the abuse that
Danser inflicted upon her./2 According
to the therapist, Karen was functioning
at an emotional level that was three to
four years below her chronological age.
The therapist opined that Karen would
likely develop several long-term
emotional problems and, given her
torturous history, was not a likely
candidate for adoption. Karen’s other
psychiatrists agreed that Karen would
require long term mental healthcare,
quite possibly for the rest of her life.

  In composing Danser’s sentence, the
district court considered the
government’s position that Danser had a
past history of sexual abuse and that he
was likely to commit offenses after his
release from incarceration. The district
court, however, declined to depart upward
on Danser’s sentence and ultimately
sentenced him to 370 months
imprisonment./3 The district court also
imposed three consecutive, three-year
terms of supervised release, one for each
count of Danser’s conviction. Lastly,
based upon the government’s calculations,
the district court ordered Danser to pay
restitution to Karen Doe in the amount of
$309,549.36. The bulk of the
restitutionary award, $304,200, was
comprised of the anticipated costs of
Karen’s future therapy.

  Danser did not object to the legality of
the government’s request for restitution
(or to the amount of that restitution)
for the future costs of Karen’s
psychological treatment. Furthermore,
Danser did not object to the terms of his
supervised release.
  Danser filed the instant appeal
contesting the propriety of the district
court’s imposition of consecutive terms
of supervision and those portions of the
district court’s restitution order which
award the anticipated future costs of
therapy to Karen Doe.

II.   DISCUSSION

  The parties to this appeal disagree over
the standard of review to be applied in
reviewing the lower court’s imposition of
Danser’s sentence. The government argues
that the sentence should be reviewed for
plain error, while Danser argues that the
judge’s interpretation of the sentencing
guidelines is subject to de novo review.
Danser, however, failed to object to both
the terms of his supervised release and
the court’s restitutionary order at his
sentencing hearing. Such a failure
constitutes a forfeiture and, therefore,
the judge’s sentence should be reviewed
for plain error. See Fed. R. Crim. P. 52.

A. Consecutive terms of supervised
release

  The government and the defendant both
state that the district court committed
plain error in imposing consecutive terms
of supervised release as a component of
Danser’s sentence. We agree. A term of
supervised release begins on the day an
individual is released from
incarceration. 18 U.S.C. sec. 3624(e).
The term of any supervised release "runs
concurrently with any Federal, State, or
local term of probation or supervised
release or parole for another offense to
which the person is subject during the
supervised release." Id. The Sentencing
Guidelines also provide that, in the
event an individual has served
consecutive terms of imprisonment, the
terms of supervised release are "to run
concurrently with any other term of
supervised release imposed." USSG sec.
5G1.2, comment (1998). The district court
did not heed the above language.

   Like our sister circuits who have dealt
with this issue, we find that section
3624(e) and the Sentencing Guidelines do
not permit sentencing courts to impose
consecutive terms of supervised release.
See, e.g., United States v. Alvarado, 201
F.3d 379, 382 (5th Cir. 2000); United
States v. Bailey, 76 F.3d 320, 323-24
(10th Cir. 1996); United States v.
Sanders, 67 F.3d 855, 856 (9th Cir.
1995). Accordingly, we vacate the portion
of the district court’s sentence that im
poses consecutive terms of supervised
release.

  Although the government cedes that the
district court committed plain error in
imposing consecutive terms of supervised
release, it argues that the district
court should be allowed to "repackage"
Danser’s sentence and impose a lengthier
period of incarceration. According to the
government, the district court fashioned
the lengthy supervision portion of
Danser’s sentence with the intent that
Danser be prevented from threatening
children for nine years after he has left
the penitentiary. The government further
contends that the district court’s
sentencing aim has been frustrated by our
finding of plain error on the issue of
consecutive terms of supervised release.
Therefore, on remand, in order to give
full effect to the district court’s
intentions, we should allow the district
court to add years to Danser’s sentence,
to prevent Danser from becoming
unsupervised sooner than the district
court had intended.

  We do not agree. In a case wholly absent
of mitigating factors, the district court
sentenced Danser to 370 months in the
penitentiary. The district court could
have sentenced Danser to additional
prison time, but chose not to do so.
Given the facts of this case, we cannot
infer that the district court’s intent
was for Danser to remain incarcerated for
additional time above and beyond the
sentence imposed. Instead, it appears
that the district court sought to impose
an additional component to Danser’s
sentence (the consecutive terms of
supervised release), which was
impermissible. Therefore, allowing the
district court to sentence Danser to more
time would not further a permissible
sentencing intent. Accordingly, the
district court cannot repackage Danser’s
sentence to include more prison time.

B.   Restitution Order

  Danser also appeals the district court’s
award of anticipated future costs of
therapy to Karen Doe./4 According to
Danser, section 2259, which provides for
compensation for "losses suffered by the
victim," does not provide for an award of
anticipated future costs. 18 U.S.C. sec.
2259(b)(3)(F). In making this argument,
Danser relies heavily upon the statute’s
use of the past tense in describing costs
for "losses suffered." Id. (emphasis
added).

  Whether a victim may be compensated for
the anticipated future costs of
psychological treatment under section
2259 is a question of first impression in
this circuit. Our sister circuits, in
deciding this question, have determined
that such awards are permissible. See
United States v. Julian, 242 F.3d 1245,
1247 (10th Cir. 2001); United States v.
Laney, 189 F.3d 954 (9th Cir. 1999).
Danser argues that those courts have
decided the issue incorrectly and,
instead, victims of abuse should be
required to petition courts to recover
the costs of treatment as those costs are
incurred.

  We do not believe that Congress sought
to create such a cumbersome procedure for
victims to receive restitution. In
enacting section 2259, it is clear that
Congress intended to provide victims of
sexual abuse with expansive relief for
"the full amount of . . . [their] losses"
suffered as a result of abuse. sec.
2259(b)(3)(B) (emphasis added). Congress
chose unambiguously to use unqualified
language in prescribing full restitution
for victims. Indeed, in the legislative
history of the contested statute,
Congress cites the United States Supreme
Court’s landmark decision in New York v.
Ferber, 458 U.S. 747 (1982). In that
case, the Court discussed, at great
length, the devastating and long term
effects that the sexual exploitation of
children can have both upon the victims
of that abuse and greater society. Id. In
light of Congress’s intent to make whole
those victims of sexual exploitation, we
find that section 2259 allows for
restitutionary damages for the future
costs of therapy./5

  Lastly, Danser contends that, even if
future costs are found to be recoverable
under section 2259, the award in this
case must be reversed because the amount
of the award was not determined within a
degree of reasonable certainty. In
particular, Danser claims there is
insufficient evidence to establish that
Karen Doe will require a lifetime
ofcounseling and that the costs
associated with that counseling are
unascertainable. The district court did,
however, conduct a hearing which
concerned, inter alia, the victim’s need
for long term counseling. Furthermore,
the district court also used the figures
proffered by Karen Doe’s treating
psychologist to determine the costs of
future counseling./6 Based upon these
facts, we cannot conclude that the
district court committed plain error in
awarding Karen Doe the restitutionary
figure.

III. CONCLUSION

  For the foregoing reasons, we Vacate in
part and Affirm in part the sentence of
the district court.

FOOTNOTES
/1 In support of an award of this figure, the
government, through a licensed actuary, deter-
mined that Karen Doe’s life should last an addi-
tional 75 years. The government then multiplied
the present costs of Karen’s weekly sessions ($78
per session) by her actuarially determined life
expectancy to come up with $304,200.

/2 At one point during the hearing, Karen’s thera-
pist testified that Karen was the most severe
case that she had seen in her three years at the
particular facility where Karen lived. Karen, who
was adopted by Danser and his wife, has no other
living relatives.

/3 At the sentencing hearing, the district court
noted that the sentencing guidelines provided for
a sentence between 324 to 405 months.

/4 The award of future costs was made pursuant to 18
U.S.C. sec. 2259 (1996).

/5 In reaching this conclusion, we are mindful of
the inherent uncertainties attendant upon an
award of prospective damages. See, e.g., United
States v. Fountain, 768 F.2d 790, 801-02 (7th
Cir. 1985) (expressing disapproval of an award of
future earnings as a part of a criminal sen-
tence). However, the type of restitution that
section 2259 provides is not similar to an award
of future earnings. The restitution described in
Fountain is for losses of wages that have yet to
be earned. In the present case, the loss sus-
tained by Karen (namely, her mental trauma) has
been incurred and will continue to manifest
itself for years. This difference regarding the
speculative nature of the respective awards and
the strong Congressional intent behind section
2259, provide the crucial distinction between the
instant case and Fountain.

/6 The district court simply multiplied the present
value of Karen Doe’s therapy by the necessary
number of years to determine her future therapy
costs. The district court did not take into
account that the costs of therapy might well
(and, indeed most probably will) increase with
time. In this respect, the dangers associated
with projecting costs were certainly diminished.
