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United States v. Romero-Medrano

United States District Court, S.D. Texas, Houston Division

November 8, 2017

UNITED STATES OF AMERICA
v.
KINDY STEVEN ROMERO-MEDRANO

          MEMORANDUM & ORDER

          KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE

         A jury found Defendant Romero-Medrano guilty of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). At a subsequent hearing, Defendant was sentenced to 135 months imprisonment, registration as a sex offender, and supervised release of 20 years. The issue of restitution was taken under advisement.

         Two victims, identified as “Vicky” and “Sarah, ”[1] have requested restitution in this case. Their counsel provided documentation of their losses and information about restitution they have received from others adjudicated guilty. The Court received briefing from the Defendant and the Government and held hearings on August 15, 2017 and October 19, 2017 regarding restitution.

         I. LEGAL BACKGROUND

         Congress has made restitution “mandatory” for the “full amount of the victim's losses” in child pornography offenses. 18 U.S.C. § 2259(b)(4). The victim's losses include: (A) medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys' fees, as well as other costs incurred; and (F) any other losses suffered by the victim as a proximate result of the offense. Id. at § 2259(3).

         The Supreme Court has 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.” Paroline v. United States, 134 S.Ct. 1710, 1727 (2014). The Supreme Court wrote that “[t]he amount would not be severe” in a case where the defendant was a possessor of child pornography images and the victim's general losses from the trade in her images were the product of the acts of thousands of offenders. Id. At the same time, “[i]t would not, however, be a token or nominal amount.” Id. The amount “would be reasonable . . . in recognition of the indisputable role of the offender in the causal process underlying the victim's losses and suited to the relative size of that causal role.” Id. The goals to be served by the restitution are “remedial or compensatory, ” as well as “punitive”; it is meant “to impress upon defendants that their acts are not irrelevant or victimless. Id. at 1726, 1729.

         In Paroline, the Supreme Court instructed that, assessing the restitution amount “cannot be a precise mathematical inquiry, ” but “involves the use of discretion and sound judgment.” Id. at 1728. The Supreme Court then provided some factors to “serve as rough guideposts, ” and not “a rigid formula.” Id. It suggested, “district courts might, as a starting point, determine the amount of the victim's losses caused by the continuing traffic in the victim's images.” Id. The restitution award could then be based on guidelines such as:

(1) [T]he number of past criminal defendants found to have contributed to the victim's general losses; (2) reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; (3) any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); (4) whether the defendant reproduced or distributed images of the victim; (5) whether the defendant had any connection to the initial production of the images; (6) how many images of the victim the defendant possessed; and (7) other facts relevant to the defendant's relative causal role.

Id. (numbering added). The economic circumstances of the defendant shall not preclude a restitution order. 18 U.S.C. § 2259(b)(4)(B).

         There are two dissenting opinions from Paroline, and though they would reach opposite results, they both stem from allegations of lack of statutory clarity. Chief Justice Roberts and Justices Scalia and Thomas would have awarded no restitution because the statute provided no way of calculating the amount of loss the defendant caused. Id. at 1732-33 (Roberts, C.J., dissenting). In contrast, Justice Sotomayor would have affirmed the Fifth Circuit and ordered the district court to award the victim the full amount of her losses based on the statute's mandate of restitution for the “full amount of the victim's losses.” Id. at 1735-39 (Sotomayor, J., dissenting).

         The majority opinion recognized that the Paroline “approach is not without its difficulties.” Id. at 1729. Other courts and commentators agree. See, e.g., United States v. Galan, 804 F.3d 1287 (9th Cir. 2015) (“it cries out for a legislative solution, ” citations omitted); United States v. Darbasie, 164 F.Supp.3d 400 (E.D.N.Y. 2016) (Paroline was “written to command Olympic effort”); United States v. DiLeo, 58 F.Supp.3d 239 (E.D.N.Y. 2014) (“Bluntly, the Court finds itself among the growing throng of district courts which have expressed their concern with the lack of precise guidance from Congress and the Supreme Court in deciding restitution awards in these circumstances.”); Isra Bhatty, Navigating Paroline's Wake, 63 UCLA L. Rev. 2, 28 (2016) (critiquing Paroline as “confusing” and “unworkable”).

         Many courts appear to focus on the most readily determined Paroline factor: the number of past criminal defendants found to have contributed to a victim's losses. These courts divide the victim's total losses by the total number of offenders, including the present offender. See, e.g., United States v. Sainz, 827 F.3d 602, 606 (7th Cir. 2016) (“We do not read Paroline as requiring district courts to consider in every case every factor mentioned. The Supreme Court made clear that the Paroline factors were permissive, not mandatory.”); United States v. Daniel, No. 3:07-CR-142-O, 2014 WL 5314834, at *2 (N.D. Tex. Oct. 17, 2014) (adopted in Doc. No. 128 in 3:07-cr-142-O) (including the impossibility of tracing a particular amount of losses to the defendant and of reasonably predicting the number of future offenders likely to be caught and convicted for crimes contributing to this particular victim's losses in the findings of fact); United States v. Watkins, 2014 WL 3966381, *7 (E.D. Cal. 2014).

         Following Paroline, the Fifth Circuit noted that “at least some analysis must be done to determine the extent that the defendant's offense proximately caused the victims' losses.” United States v. Jimenez, 692 Fed.Appx. 192, 202 (5th Cir. 2017). In Jimenez, the Fifth Circuit found the district court erred in determining a restitution award of $25, 000 per victim for five victims. Id. The district court had not conducted any kind of analysis of the appropriateness of the victims' requested amounts, and the requests before the district court did not include a Paroline analysis. Id. Where each victim's total estimated damages were different, the Fifth Circuit considered it “unlikely” that the defendant proximately caused the same amount of loss to each victim. Id. at 202-03. Moreover, the Fifth Circuit “note[d] that $25, 000 appears to be near the high end of restitution awards applying a Paroline analysis.” Id. at 203. The Fifth Circuit includes the caveat that Jimenez “should not be interpreted as opining that a $25, 000 per victim award (or more) could not be justified after a proper Paroline analysis, [as a suggestion] that matching awards for victims would never be appropriate (especially considering the discretion and estimation required as part of the Paroline analysis).” Id. at 203 n. 7.

         II. ANALYSIS

         On behalf of their clients, Vicky's counsel requests $10, 000 in restitution, Sarah's counsel requests $15, 000 in restitution, and the Government “believes the [] requested restitution amounts are appropriate.”[2] (Doc. No. 180.) Defendant argues that the Government neglected several Paroline factors, and that the requested restitution amounts are much larger than a proportional share of restitution based on the number of defendants who have been ordered to pay restitution, even before accounting for the defendants who will be prosecuted in the future. (Doc. No. 178.)

         Determining proportional restitution in child pornography cases presents an infinite divisibility problem. First, the number of total offenders is unknown and impossible to estimate. Future offenders can continue to see images distributed on the internet and may be prosecuted. Yet, to determine a proportion, it is necessary to know how many offenders make up the whole. Second, the offenders do not each equally cause the victim's losses. An offender who possesses images is different from an offender who possesses and distributes, and an offender who created the images is different from both. Yet, § 2259 and the Supreme Court have mandated that courts undertake this task-with discretion and sound judgment. Paroline, 134 S.Ct. at 1727-28.

         a. Discussion of Paroline Factors

         From the Supreme Court's recommended starting point, this Court begins by recognizing the total “amount of the victim's losses caused by the continuing traffic in the victim's images. Id. at 1728. Vicky and Sarah's losses are documented in letters and exhibits from their counsel. See Letter from Carol L. Hepburn to Sherri Lynn Zack, April 25, 2017 Re: Restitution request- “Marineland Series” victim (“Sarah Letter”), and attached exhibits; Letter from Carol L. Hepburn to Sherri Lynn Zack, April 25, 2017 Re: Restitution request-“Vicky Series” victim (“Vicky Letter”), and attached exhibits. Defendant has not challenged the total loss amounts, and there does not appear to be any reason to doubt them.

         Vicky's economic losses are $4, 462, 040.96. Vicky Letter at 2. This total includes disaggregated increased medical costs, future counseling expenses, educational and vocational counseling needs and part-time income during schooling, lost past and future earnings, and expenses paid in out of pocket costs incurred relative to restitution documentation. Id. Sarah's economic losses are $2, 753, 421.77. Sarah Letter at 2. This total includes psychological counseling, lost income, out of pocket costs and ...


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