13-4854-cr
United States v. Hagerman

                           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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                   v.                                           No. 13-4854-cr

PAUL HAGERMAN,

         Defendant-Appellant.
________________________________________________

For Appellee:                            Richard A. Friedman, Appellate Section, Criminal
                                         Division, United States Department of Justice (Tamara
                                         Thomson, Assistant United States Attorney, Northern
                                         District of New York, on the brief), for Richard
                                         Hartunian, United States Attorney for the Northern
                                         District of New York, David O’Neil, Acting Deputy
                                          Assistant Attorney General, and Leslie R. Caldwell,
                                          Assistant Attorney General, Criminal Division, United
                                          States Department of Justice, Washington, DC.

For Defendant-Appellant:                  Molly Corbett, Research and Writing Specialist, Gene
                                          V. Primono, Assistant Federal Public Defender, for
                                          Lisa Peebles, Acting Federal Public Defender for the
                                          Northern District of New York, Albany, NY.


      Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).

          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

          Defendant-Appellant Paul Hagerman appeals from an amended judgment of conviction

dated December 13, 2013 in the United States District Court for the Northern District of New

York (Suddaby, J.), following his guilty plea to one count of receiving child pornography and

one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (B).

We assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

          Hagerman had previously appealed both his sentence, which we affirmed, and the initial

restitution awarded to a victim of his crimes under 18 U.S.C. § 2259, which we reversed and

remanded. See United States v. Hagerman, 506 F. App’x 14 (2d Cir. 2012) (summary order). In

this appeal, Hagerman challenges the new restitution award of $3,281. “We review restitution

orders deferentially and will reverse only for abuse of discretion.” United States v. Paul, 634

F.3d 668, 676 (2d Cir. 2011) (internal quotation marks omitted). We reversed the initial

restitution award because of an error in its calculation, but we upheld both the district court’s per

capita method of calculating restitution by dividing the victim’s total losses by the number of

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defendants successfully prosecuted as well as the district court’s finding that Hagerman

proximately caused a portion of the losses. See Hagerman, 506 F. App’x at 18–19.

       Hagerman argues that these conclusions were upended by two recent Supreme Court

decisions: Burrage v. United States, 134 S. Ct. 881 (2014), and Paroline v. United States, 134 S.

Ct. 1710 (2014).* Burrage held that but-for causation was required by a provision of the

Controlled Substances Act analogous to section 2259, which might arguably have supported

Hagerman’s appeal. But Paroline interpreted the very provision at issue here—the definition of a

victim as “ ‘the individual harmed as a result of a commission of a crime under this chapter.’ ”

Paroline, 134 S. Ct. at 1720 (quoting section 2259). In so doing, the Supreme Court

unmistakably endorsed the proximate causation analysis that we affirmed in Hagerman’s first

appeal, stating that “the victim’s costs of treatment and lost income resulting from the trauma of

knowing that images of her abuse are being viewed over and over are direct and foreseeable

results of child-pornography crimes, including possession, assuming the prerequisite of factual

causation is satisfied.” Id. at 1722. We have no doubt that both proximate and factual causation

were established here.

       Paroline continued: “[W]here it can be shown both that a defendant possessed a victim’s

images and that a victim has outstanding losses caused by the continuing traffic in those images

but where it is impossible to trace a particular amount of those losses to the individual defendant

by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution

in an amount that comports with the defendant’s relative role in the causal process that underlies



       *
         Because the Supreme Court had not issued its opinion in Paroline when Hagerman filed
this appeal, his arguments about Paroline are based only on the briefs filed in that case.

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the victim’s general losses.” Id. at 1727. In this case, the district court found that the entirety of

the victim’s losses were a direct result of her knowledge that unidentified individuals had

downloaded and trafficked in pornographic images of her abuse, and that factual finding was not

clearly erroneous. To arrive at Hagerman’s individual contribution, the district court then

divided the victim’s total losses by the number of criminal defendants who contributed to those

losses by possessing the victim’s images. Hagerman did not object to this calculation method

below, and in light of the Supreme Court’s guidance in Paroline, we perceive no “clear or

obvious” legal error that would render the district court’s approach an abuse of discretion.

United States v. Marcus, 560 U.S. 258, 262 (2010). The resulting award was neither “severe . . .

[nor] a token or nominal amount,” Paroline, 134 S. Ct. at 1727, but was well “within the range

of permissible decisions,” Paul, 634 F.3d at 676 (internal quotation marks omitted).

        We have considered Hagerman’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.



                                                    FOR THE COURT:
                                                    CATHERINE O’HAGAN WOLFE, CLERK




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