United States v. Anthony ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 31, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6047
CURTIS A. ANTHONY,
Defendant - Appellant,
--------------------
THE HUMAN TRAFFICKING
INSTITUTE,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:15-CR-00126-C-5)
_________________________________
Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado, for Defendant-
Appellant.
K. McKenzie Anderson, Assistant United States Attorney, Oklahoma City, Oklahoma,
for Plaintiff-Appellee.
_________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
A jury convicted Curtis A. Anthony of child-sex trafficking and conspiracy to
commit child-sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and
1594(c). The district court sentenced Anthony to the statutory mandatory-minimum
10 years’ imprisonment and ordered that he pay restitution to the two child victims—
R.W. and M.M—in the amount of $327,013.50 and $308,233.50, respectively. On
appeal, Anthony contends that these amounts exceed actual losses resulting from his
two offenses of conviction. He raises two issues with the restitution order: (i) that it
impermissibly compensates harms that R.W. suffered from an earlier, unrelated sex-
trafficking criminal enterprise run by a different wrongdoer; and (ii) that, for his
conspiracy count, it compensates R.W.’s and M.M.’s harms beyond a smaller
conspiracy proved at trial (a subset of the broad, charged conspiracy). We agree with
Anthony on both issues, but we disagree that he has established plain error on the
second issue. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), we affirm the district court’s restitution order as covering the broad,
charged conspiracy, but we vacate the order and remand for a recalculation of losses
to ensure that no restitution is awarded for harms that R.W. suffered during the
earlier sex-trafficking offense.
BACKGROUND
In May and June 2014, when R.W. was 14 years old, a pimp named William
Johnson prostituted her in the Oklahoma City, Oklahoma area. William pleaded guilty in
2015 to a federal charge of sex trafficking a minor, was later sentenced to 30 years in
prison, and was ordered to pay R.W. $900,000 in restitution. See Amended Judgment,
2
United States v. Johnson, No. CR 14-0341-F (W.D. Okla. Jan. 13, 2016), ECF No. 83. In
a victim-impact statement prepared for that case, R.W. reported that William had taken
her virginity, had “beat the mess out of” her, and had “brainwashed” her “into practically
being a slave.” ROA vol. 2 at 70. R.W. described the psychological effects of this abuse,
including her not “know[ing] how to act around people [her] age” and feeling “no worth
whatsoever.” Id. at 71. R.W. also reported numerous symptoms of psychological trauma
such as nightmares, fear for her safety, fear of being alone, fear of adults and strangers,
anxiety, depression, anger, crying spells, and feelings of helplessness.
On October 8, 2014, after law-enforcement officers rescued R.W., and she had
returned home, she received Facebook messages from another pimp, Maurice M. Johnson
(no relation to William) and one of his adult prostitutes, Chelsee A. Griffin, offering to
pick her up to “make money.” Id. vol. 3 at 345. After midnight on October 9, Maurice
picked up R.W., photographed her, and had a longtime associate, Tonya Gay Gum, post
the photos on websites advertising escort services. For a share of the escort revenue, Gum
operated a “call center” with over twenty publicly listed phone numbers—all of which
forwarded to two personal cell phones—through which she fielded requests for sexual
services and arranged for escorts to meet with customers. Id. at 38–39. After using these
services to traffic R.W. for about two weeks, Maurice had her recruit her friend, 15-year-
old M.M., to work as a prostitute. M.M. did so for about a week before law enforcement
3
halted the operation. In their time with Maurice, R.W. and M.M. together brought in
about $40,000 from prostitution.
On the evening of October 24, 2014, Anthony called one of Gum’s escort lines.
Anthony stated only that he was “looking for company” at his office. See id. at 254–55.
Gum sent R.W. to the office, but when she arrived, Anthony couldn’t locate his wallet, so
he and R.W. drove to an ATM to withdraw cash for the transaction. But Anthony was
unable to make a withdrawal without his wallet, so R.W. left with Maurice, who had
followed them to the ATM along with M.M., Griffin, and two others. Minutes later, while
the group was heading back, Anthony called again and asked for R.W. to return because
he had located his wallet and now had cash. Maurice turned around and drove R.W. back
to Anthony’s office, this time sending M.M. in with her. Anthony paid the girls to strip
naked, touched their bodies, and stated that he wanted to finish “the date with M.M.” Id.
at 443. So R.W. gave M.M. a condom and waited outside while M.M. and Anthony had
sex for money.
On October 27, 2014, law-enforcement officers, while running an undercover-
sting operation, located and rescued R.W. and M.M. Maurice had kept the girls in a hotel
room where he forced them into commercial sex transactions. He and Gum split the
proceeds. Maurice used psychological manipulation, threats of force, and physical abuse
to control the girls. As R.W. later testified, Maurice had treated her “[l]ike a slave,
4
basically.” Id. at 446. Griffin also testified that Maurice was a violent and dangerous
man.
On June 16, 2015, a federal grand jury sitting in the Western District of Oklahoma
indicted Anthony on child-sex-trafficking charges. On January 6, 2016, the grand jury
returned a superseding indictment charging Anthony with: (i) child-sex trafficking, in
violation of 18 U.S.C. § 1591(a)(1), (b)(2), and (c); and (ii) conspiracy to commit child-
sex trafficking, in violation of 18 U.S.C. § 1594(c). 1 The superseding indictment named
1
To violate § 1591, the defendant must have known or recklessly disregarded
that the victims were minors, absent a “reasonable opportunity to observe” them. See
18 U.S.C. § 1591(a)(1) & (c). In the substantive trafficking count, the superseding
indictment charges that Anthony had a reasonable opportunity to observe R.W. and
M.M., thus obviating the need to establish his knowing or reckless disregard of their
minority status. But we note that Anthony had no opportunity to observe the victims
when he called the escort service and allegedly conspired to violate § 1591. Nor, for
that matter, did Anthony request that Gum send a minor escort. As a result, under
§§ 1591(a)(1), (b)(2), (c) and 1594(c), it appears that the government needed to prove
that Anthony knew or recklessly disregarded that the victims were minors when he
entered the conspiracy.
At trial, the government presented no evidence that Anthony either knew or
recklessly disregarded the victims’ minority status when he initially contacted Gum
to arrange for an escort. During argument on a motion for acquittal, discussed infra,
the district court noted the absence of such evidence and expressed skepticism that
Anthony “had any involvement in a child sex trafficking conspiracy.” See ROA vol.
3 at 540–41. In response, the government asserted that R.W. and M.M. were in fact
coconspirators, that Anthony had a reasonable opportunity to observe them when
they arrived at his office, and that he entered the conspiracy when he agreed to pay
them for sexual services. See id. at 540 (arguing that “there’s no restriction on who a
co-conspirator is”). Under that theory, the government would not have to prove that
Anthony knew or recklessly disregarded R.W. and M.M.’s minority status.
Anthony does not raise this issue on appeal, so we address it no further. But
we note that, if R.W. and M.M. were indeed coconspirators—though the indictment
contains no such allegation—the government offers no authority for awarding any
restitution to them. It isn’t clear that the restitution statutes would authorize such an
award. See, e.g., United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006) (holding
that treating coconspirators as “victims” who are entitled to restitution from fellow
5
as coconspirators Anthony and two other adult customers—Trung N. Duong and William
M. Baker, both of whom pleaded guilty—who had paid R.W. for sexual services. None
of the three men knew each other. Gum—who had pleaded guilty to the original
indictment—was named as an unindicted coconspirator. Maurice was prosecuted in a
separate action. See United States v. Johnson, No. 14-CR-0342-C-1 (W.D. Okla. Aug. 6,
2019).
The superseding indictment alleged a conspiracy spanning the time that R.W. had
spent with Maurice—from October 8 to 27, 2014. The conspiracy’s charged objective
was “to operate and perpetuate a prostitution enterprise that recruited, enticed, provided,
obtained, and maintained minors.” 2 ROA vol. 1 at 65. The enterprise allegedly benefited
Maurice and Gum financially and benefited Duong, Baker, and Anthony by enabling
them to complete commercial sex transactions. 3 With R.W.’s and M.M.’s prostitution
earnings, Gum funded her escort business, and Maurice recruited and controlled his
perpetrators is a “fundamental” error that “adversely reflect[s] on the public
reputation of judicial proceedings”).
As we read the record, the evidence showed that Maurice and Gum operated
2
a general prostitution ring that happened to include two minor females, not that they
operated an exclusively child-prostitution enterprise. At trial, the government offered
evidence of only two children involved in the enterprise: R.W. and M.M. At the same
time, it offered evidence suggesting that Maurice and Gum had arranged commercial
sex transactions with numerous other prostitutes, including at least one adult
prostitute: Griffin.
Allegations concerning “benefits” to each member of the charged conspiracy
3
appear to be remnants from the original indictment, which also charged a violation of
18 U.S.C. § 1591(a)(2).
6
prostitutes. The superseding indictment alleged as specific “acts in furtherance of the
conspiracy” (i) Maurice’s recruitment of R.W. (but not M.M.); (ii) Maurice’s making
R.W. available to Gum as a prostitute; and (iii) Gum’s arranging the commercial sex
transactions for Duong, Baker, and Anthony. See id. at 67–70.
In mid-June 2017, Anthony went to trial. Both R.W. and M.M. testified as
government witnesses, as did Maurice, Gum, and Duong. Gum testified that, in October
2014, she fielded over 10,000 calls on her escort phone lines scheduling commercial sex
appointments. She testified about sending R.W. on four calls during the alleged
conspiracy: once to Baker, twice to Duong, and once to Anthony. Maurice, meanwhile,
testified that he would meet Gum five to six times on a normal workday to give her
proceeds from completed appointments. 4
After the close of the government’s case-in-chief, Anthony orally moved for a
general judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure.
The district court reserved decision until after the close of all the evidence, at which point
it denied the motion for the substantive trafficking count. The next day, the court denied
the motion for the conspiracy count. Anthony did not renew his Rule 29 motion at the
end of trial.
On June 19, 2017, the jury returned a guilty verdict on both counts. On September
18, 2017, the government moved for restitution awards totaling $530,000 for R.W. and
4
This testimony suggests that Maurice and Gum had arranged commercial sex
transactions with far more customers than those involved in the charged conspiracy,
but the government mentions no other customers that have been charged and held
accountable for restitution to R.W. and M.M.
7
$510,000 for M.M., including $300,000 each for a lifetime of psychological treatment,
$200,000 each for a lifetime of lost income, and $30,000 for R.W. and $10,000 for M.M.
for Maurice and Gum’s ill-gotten gains. The government requested that the district court
hold the coconspirators jointly and severally liable for the full amounts. See 18 U.S.C.
§ 3664(h).
The government submitted victim-impact statements to support its request for
restitution. For R.W., it submitted her statement from William’s case and a statement
about psychological trauma resulting from the instant conspiracy. In the latter statement,
R.W. expressed that she “look[s] at men very different” and is “scared that all men are
like this.” ROA vol. 2 at 67. She further reported experiencing the same symptoms of
psychological trauma that she had reported in William’s case. For M.M., the government
submitted a declaration from M.M.’s guardian ad litem attesting that M.M.’s encounter
with Anthony “made her feel less than human, humiliated and ashamed.” Id. at 108. She
also attested that M.M. now experiences trouble concentrating and sleeping, nightmares,
and feelings of shame, sadness, and anger.
On October 24, 2017, the district court sentenced Anthony to the statutory
mandatory-minimum term of ten years’ imprisonment, to be followed by five years’
supervised release. At the hearing, the court stated that, though it was “not entering an
order of restitution at this time,” it intended to order “joint and several” restitution among
8
the coconspirators. Id. vol. 3A at 56. Anthony waived his right to attend any future
restitution hearing.
On December 11, 2017, in a one-page response to the government’s restitution
motion, Anthony argued that his “role in the conspiracy to which he was convicted was
that he called an ‘escort’ line which sent R.W. and M.M., minors, to his home [sic] for
sexual services without him knowing or having reason to know that they were minors.”
Id. vol. 1 at 226. Anthony stressed that “[t]his was a one-time event.” Id. Beyond that,
Anthony simply adopted Duong’s response and surreply. Duong’s response first faulted
the government for failing to disaggregate from the request for future therapy costs the
psychological harm that William had caused R.W. long before the instant conspiracy had
even begun. Addressing lost future income, Duong’s response argued that the requested
amount failed to account for R.W.’s and M.M.’s abilities to increase their earning
potential by pursuing high-school or college degrees. And, finally, Duong’s response
argued that Maurice and Gum should be solely responsible to reimburse the victims for
all money obtained by prostituting them. In his surreply, Duong argued that the court
should apportion his restitution liability under 18 U.S.C. § 3664(h) to reflect his “small
role” in the conspiracy. Id. vol. 2 at 210–11.
On February 21, 2018, the district court granted in part the government’s motion
for restitution. The court declined to order that Anthony pay restitution for lost future
income, but it did require that he pay restitution for the estimated $40,000 that Maurice
and Gum had earned from prostituting R.W. and M.M., and for the full cost of R.W.’s
and M.M.’s anticipated future therapy expenses—totaling $327,013.50 and $308,233.50,
9
respectively. The court held Anthony, Gum, Duong, Baker, and Maurice jointly and
severally liable for the full awards. This appeal followed.
ANALYSIS
Anthony raises two issues on appeal. First, he argues that the district court erred
by ordering that he pay restitution for losses that R.W. had sustained while with William,
months before the instant conspiracy. And second, he argues that the district court erred
by ordering restitution for all the losses that R.W. and M.M. suffered during the charged
three-week conspiracy, when at most he had joined a subset of that broad conspiracy by
conspiring to obtain sexual services one time, on October 24, 2014. In short, Anthony
argues that the district court erred by ordering restitution against him for losses beyond
those he caused.
I. The Restitution Statutes
Courts may award restitution only as authorized by statute. United States v.
Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007). Here, the district court ordered that
Anthony pay restitution to R.W. and M.M. under the Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. § 3663A, and the Trafficking Victims Protection Reauthorization
Act (TVPRA), 18 U.S.C. § 1593. Anthony argues that neither statute authorizes the full
restitution award against him, because the award compensates the victims for losses that
he did not cause. We review de novo the district court’s interpretation of the restitution
statutes, review for clear error its factual findings, and review for abuse of discretion the
restitution amount. See United States v. Camick, 796 F.3d 1206, 1223 (10th Cir. 2015);
United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). A district court abuses its
10
discretion if it orders a restitution amount based on an “erroneous view of the law or on a
clearly erroneous assessment of the evidence.” United States v. Howard, 784 F.3d 745,
750 (10th Cir. 2015) (citation omitted).
Restitution may be ordered only for losses actually resulting from the offense of
conviction. United States v. West, 646 F.3d 745, 751 (10th Cir. 2011). So before ordering
restitution, the district court must determine whether the victim’s losses result from the
offense of conviction. See United States v. Zander, 794 F.3d 1220, 1233 (10th Cir. 2015).
The government bears the burden of proving the amount of loss by a preponderance of
the evidence. United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007). It “bears
the same burden regarding the subordinate question of what harms are properly included
in the loss calculation because they are ‘a result of the offense.’” United States v. Wells,
873 F.3d 1241, 1265 (10th Cir. 2017) (quoting 18 U.S.C. § 3664(e)).
What standard of causation applies, though, is a matter of some dispute. Anthony
insists that both the MVRA and TVPRA limit restitution to losses directly resulting from
the offense of conviction. But the government argues that the two statutes require a
11
showing of only proximate causation. 5 Our cases have resolved this issue for the MVRA
but not for the TVPRA.
The MVRA provides that, for certain crimes, 6 a court must order restitution for the
“full amount” of the victim’s losses. 18 U.S.C. § 3664(f)(1)(A). The MVRA defines a
“victim” as “a person directly and proximately harmed as a result of the commission of
an offense.” Id. § 3663A(a)(2). We have construed this language to require “both that the
defendant’s conduct is the ‘but-for’ cause of the individual’s harm and that the defendant
‘proximately’ caused the harm.” United States v. Speakman, 594 F.3d 1165, 1171 (10th
Cir. 2010); see also Wells, 873 F.3d at 1266 (applying Speakman’s “direct-and-proximate
5
In his opening brief, Anthony argues only that the statutes limit restitution
“to losses proximately caused by the offense of conviction.” Appellant’s Opening Br.
12. But Anthony’s argument implicitly relies on but-for causation—he argues that the
district court improperly ordered restitution for losses that he did not directly cause.
In its response, the government argues that the statutes “require proximate causation,
not but-for causation.” Appellee’s Br. 34. Anthony then proclaims in his reply that
the parties’ “primary dispute” is “whether the statutes incorporate the traditional but-
for causation standard,” Appellant’s Reply Br. 4, even though his opening brief
doesn’t mention that standard.
6
The district court ordered restitution under the MVRA, and the parties tacitly
agree on the statute’s applicability. But neither section under which Anthony was
convicted—18 U.S.C. §§ 1591(a)(1) and 1594(c)—falls within the categories of
crimes for which the MVRA mandates restitution. See 18 U.S.C. § 3663A(c)(1)(A).
The Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, though,
authorizes restitution for convictions under Title 18 of the U.S. Code. Id.§ 3663(a)(1). The VWPA uses the same causation standard as the MVRA, and both
statutes rely on the procedures in 18 U.S.C. § 3664. See id. § 3663(a)(2) & (d). The
VWPA thus supplies the authority for restitution that the district court mistakenly
derived from the MVRA.
12
standard”). So Anthony is correct that the statute limits restitution to losses directly
resulting from his offenses of conviction.
But our cases have not addressed the causation standard for restitution under the
TVPRA. The TVPRA mandates restitution for “any offense under” Chapter 77 of the
U.S. Code, which includes slavery and human-trafficking offenses. 18 U.S.C. § 1593(a).
Restitution must cover the “full amount of the victim’s losses,” id. § 1593(b)(1), which
the statute defines by reference to the Mandatory Restitution for Sexual Exploitation of
Children Act (MRSECA), 18 U.S.C. § 2259, see id. § 1593(b)(3). That statute—which
mandates restitution for sexual and other child-abuse offenses described in Chapter 110
of the U.S. Code—defines the “full amount of the victim’s losses” as “costs incurred, or
that are reasonably projected to be incurred in the future, by the victim, as a proximate
result of the offenses.” Id. § 2259(c)(2). The Supreme Court has construed this language
to impose a proximate-cause limitation but not a “strict but-for causation” test. Paroline
v. United States, 572 U.S. 434, 458 (2014).
Paroline involved a conviction for child-pornography possession under 18 U.S.C.
§ 2252, a Chapter 110 offense triggering MRSECA restitution. The Court grappled with
the “atypical causal process” for losses in that context, where a defendant is just “one of
thousands who have possessed and will in the future possess the victim’s images but who
has no other connection to the victim.” Id. at 449. The Court worried that a but-for test
would effectively foreclose restitution from any possessor, because it is “not possible” for
a victim to “prove that her losses would be less . . . but for one possessor’s individual role
in the large, loosely connected network through which her images circulate.” Id. at 450.
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The Court concluded that this “special context” warrants departing from a but-for test for
restitution under § 2259. Id. at 458. Instead of applying a strict but-for test, the Court
concluded that restitution in such cases should “comport[] with the defendant’s relative
role in the causal process that underlies the victim’s general losses.” Id.
Relying on Paroline, the government insists that TVPRA restitution does not
require but-for causation. But Paroline specifically concerned the application of § 2259
to convictions under § 2252 for child-pornography possession, and it “explicitly limited”
its holding to that “special context.” United States v. Kolodesh, 787 F.3d 224, 242 (3d
Cir. 2015) (quoting Paroline, 572 U.S. at 458). Paroline did not even decide the
causation standard for all Chapter 110 offenses to which § 2259 applies. Indeed, many
Chapter 110 offenses do not involve the “atypical causal process” driving Paroline’s
reasoning, i.e., where the offender’s connection to the victim is attenuated. See, e.g., 18
U.S.C. § 2251A (barring the selling and purchasing of children). If Paroline did not
abrogate but-for causation for those offenses, it follows that it did not abrogate but-for
causation for restitution under the TVPRA—a statute governing Chapter 77 offenses that
borrows § 2259’s causation language.
That does not mean, though, that § 2259 requires but-for causation for TVPRA
offenses. Section 2259 limits restitution to losses that the victim suffered “as a proximate
result of the offense[].” Given its ordinary meaning, language describing the “result” of
something “imposes . . . a requirement of actual causality.” Burrage v. United States, 571
U.S. 204, 211 (2014). And actual causality requires proof of but-for causation, absent a
“textual or contextual indication to the contrary.” Id. at 212. Indeed, “it is one of the
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traditional background principles ‘against which Congress legislate[s]’ that a phrase such
as ‘results from’ imposes a requirement of but-for causation.” Id. at 214 (quoting Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013)); see also Paroline, 572 U.S. at
450 (recognizing this “legal tradition”). We therefore must determine whether a textual or
contextual reason counsels against imposing such a requirement here.
We see none. That the statute’s text mentions only proximate causation does not
mean it abrogates but-for causation. Even Paroline did not adopt such an interpretation; it
found only that § 2259’s text “by no means requires but-for causation by its terms.” 572
U.S. at 458 (emphasis added). In addition, but-for causation is well suited to the TVPRA
context—at least for child-sex-trafficking offenses (like Anthony’s) under §§ 1591(a)(1)
and 1594(c). Unlike the “special context” of child-pornography possession, where a court
cannot attribute a discrete amount of the victim’s losses to a single possessor in a “large,
loosely connected network,” see Paroline, 572 U.S. at 450, it is possible to attribute an
amount of a sex-trafficked child victim’s losses to the child’s trafficker. Traffickers buy
or sell minors for sexual services; they are far from faceless perpetrators remotely
connected to the victims. Unlike possessors of child pornography, who passively
consume materials depicting past abuse, traffickers actively abuse their victims—whether
by sexually assaulting them or by prostituting them to others in exchange for money. In
these circumstances, it is easier to show that at least some of the victim’s losses would
not have occurred but for the trafficker’s conduct.
Determining whether the TVPRA requires a showing of but-for causation is more
than an academic exercise. The TVPRA authorizes restitution “[n]otwithstanding” the
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MVRA. 18 U.S.C. § 1593(a). Thus, if the TVPRA requires only proximate causation,
restitution for losses that the defendant did not directly cause might be permissible under
the TVPRA but not under the MVRA. In the circumstances of this case, though, we
conclude that both statutes limit restitution to losses that the defendant’s conduct has
directly and proximately caused.
But-for and proximate causation are well-established concepts in the law. Wells,
873 F.3d at 1266. The but-for cause of an event is that “without which the event could
not have occurred,” while the proximate cause is that which is “legally sufficient to result
in liability.” United States v. Burkholder, 816 F.3d 607, 613 (10th Cir. 2016) (citations
omitted). The “basic question” for proximate causation “is ‘whether the harm alleged has
a sufficiently close connection to the conduct’ at issue.” Robers v. United States, 572
U.S. 639, 645 (2014) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 133 (2014)). And this question “entails an inquiry into the foreseeability of the
harm.” Wells, 873 F.3d at 1267. Where other causes have contributed to the harm, the
inquiry focuses on “whether the defendant bears the risk of all the harm” or “whether the
chain of causation was in effect broken by the intervening cause, resulting in less harm
for which the defendant would be held liable in restitution.” Id. (citation omitted). An
16
intervening cause that is “directly related to the defendant’s offense” does not break the
chain. Speakman, 594 F.3d at 1172.
With these principles in mind, we address Anthony’s substantive challenges to the
district court’s restitution order.
II. Liability for Past Harm
Anthony argues that the district court’s restitution order fails to disaggregate, and
thus compensates, harms that R.W. sustained during her earlier, months-long exploitation
by William Johnson. Anthony posits that “[t]he losses that William inflicted on R.W.
were clearly not caused by the offenses in this case” because William’s crimes were
“distinct crimes, separate in time and in participants.” Appellant’s Opening Br. 14–15. In
short, Anthony argues that his conduct was not the but-for cause of all the harm that the
restitution order compensates. We agree.
Months before the events in this case, William trafficked R.W. in Oklahoma City.
R.W.’s victim-impact statement in William’s case described his abusive behavior and its
long-term psychological damage to her. R.W. resubmitted that statement for
consideration in this case, which we understand to mean that she still suffers the harms
William’s exploitation caused her. Separately, in a victim-impact statement written for
this case, R.W. reported experiencing the same symptoms of psychological trauma that
17
she had reported in William’s case. It therefore appears that many of R.W.’s harms
predate Anthony’s involvement and would exist regardless of his crimes.
The government, though, did not even try to disaggregate William’s harms in its
request for restitution. Instead, it submitted both victim-impact statements 7 and relied on
harms from each as indicia of R.W.’s “psychological trauma . . . from being trafficked.”
ROA vol. 2 at 47. It then requested almost $300,000 for a lifetime of psychological care
to address these undifferentiated harms. To support this figure, it relied on calculations
from its expert witness—certified physician’s assistant Julie Bryant—which accounted
for William’s abuse. Rather than limit her analysis to the harms that R.W. sustained
during the three weeks at issue in this case, Bryant considered R.W.’s general “trauma
. . . [as] a victim of sex trafficking when she was 14 years old,” id. at 81, as well as her
“emotional damage” from “the last few years while being involved in the human
trafficking ring,” id. at 84. In short, Bryant did not differentiate the psychological
treatment needed to address the harms William caused versus the harms caused by the
conduct charged in this case.
From this, the district court ordered restitution, including about $300,000 for
R.W.’s future psychological care. Consistent with the government’s approach, the court
did not differentiate the harms in this case from the harms that William had caused.
Instead, the court found the harms described in R.W.’s “Victim Impact Statements . . .
7
The government acknowledged that “some of the questions and answers” in
the statements “relate to a separate case,” ROA vol. 2 at 47, but didn’t identify which
harms related to William’s case. It simply listed harms from both statements.
18
appropriate matters for consideration in determining the amount of restitution.” Id. at 215
(emphasis added). It also accepted Bryant’s “valuation of the necessary psychological
care for R.W.” as “well supported” by a preponderance of the evidence. Id. at 218. But
the court did not identify what evidence of harm in this case supported the valuation. In
fact, its only reference to harm in this case was to mention generally that R.W. “suffered
harm as a result of the criminal activity in this case.” Id. at 215. This finding—unspecific
to any defendant—does not establish that Anthony caused all the harm that the restitution
order compensates.
Tellingly, the district court recognized the “overlap” between the harms in this
case and the harms that William had caused, but it declined to disaggregate those harms
because “relevant law requires the Court to make the victims whole in this case.” Id. The
law indeed seeks to make victims whole for their losses. United States v. Ferdman, 779
F.3d 1129, 1132 (10th Cir. 2015). But it intends to make them whole for losses that they
incur only from the offense of conviction. A restitution amount that exceeds such losses
and compensates other harms constitutes an “illegal sentence.” United States v. Griffith,
584 F.3d 1004, 1019 (10th Cir. 2009) (citation omitted). Simply put, the obligation to
make victims whole does not obviate the need to limit restitution to losses resulting from
the defendant’s convicted conduct.
Nevertheless, the district court declined to limit the restitution amount absent
evidence from Anthony that R.W.’s previous award for $900,000 in William’s case had
“changed or altered the harm suffered in this case.” ROA vol. 2 at 215. In other words,
the court faulted Anthony for not proving an entitlement to an offset. Cf. United States v.
19
Serawop, 505 F.3d 1112, 1127 (10th Cir. 2007) (requiring the defendant who killed a
three-month old girl to show any offsets to the total restitution losses he alone caused). 8
But this presupposes a proper restitution amount to offset. The problem is that the
ordered-restitution amount unlawfully compensates harms that Anthony did not cause.
The government had the burden to prove what losses Anthony caused. See 18 U.S.C.
§ 3664(e). Only then would Anthony be responsible to claim any offset. Otherwise stated,
it was not Anthony’s burden to disentangle from the restitution amount past
compensation for losses that William—and not Anthony—caused. William’s harms to
R.W. should never have been part of Anthony’s baseline total restitution. 9
On appeal, the government does not dispute that the restitution order accounts for
losses that William caused R.W. Instead, it defends the order on grounds that, regardless
of R.W.’s previous abuse, “Anthony’s offenses independently caused the losses for which
she was awarded restitution.” Appellee’s Br. 29. It then recounts R.W.’s experiences with
Maurice, insisting that the harms from those experiences justify the “full restitution”
8
After faulting Anthony for not proving an entitlement to an offset based on
the restitution award in William’s case, the district court stated that such an offset
would violate 18 U.S.C. § 3664(f)(1)(B). The court thus placed Anthony in a double
bind, requiring him to prove an offset but stating that an offset would be unlawful. In
any case, § 3664(f)(1)(B) is inapposite. That provision forbids reducing a restitution
award to account for compensation that a victim has received from “any other
source,” 18 U.S.C. § 3664(f)(1)(B), but Anthony doesn’t contend that restitution
should be discounted for any third-party compensation.
9
It is worth noting that Anthony did not request an offset at the district court.
He argued—as he does on appeal—that the restitution award exceeds the losses that
he actually caused, not that it fails to account for R.W.’s compensation in William’s
case.
20
award. Id. at 37. But when it originally moved for restitution, the government relied on
harms identified in R.W.’s victim-impact statement from William’s case and on a
valuation for future therapy that accounted for losses that William had inflicted. And the
district court, by simply adopting the government’s valuation, factored in William’s
abuse when it ordered restitution. On remand, the government must prove that Anthony’s
acts justify the requested restitution award. 10 Right now the award is based on
calculations that are not limited to those acts. The government cannot now claim that the
award would have been the same had William’s abuse not already occurred when it made
no attempt to isolate the harm from Anthony’s offenses in its original loss calculation.
But the government disclaims any need to isolate Anthony’s share of the harm vis-
à-vis William, arguing simply that Anthony need not have been “the sole cause of harm”
for “entire liability” to attach. See id. at 32–33 (quoting In re Sealed Case, 702 F.3d 59,
66 (D.C. Cir. 2012)). The government relies on In re Sealed Case, a child-sex-trafficking
case involving victims who had suffered psychological harms even before associating
with the defendant. As here, the defendant argued that he should not have to pay for a
lifetime of treatment, because he did not cause all the victims’ harm. The D.C. Circuit
10
We recognize that the restitution award seeks to compensate not only harms
resulting from R.W.’s encounter with Anthony but also all the harms that she endured
during the broad, charged conspiracy. We address, infra, Anthony’s responsibility for
the losses resulting from that conspiracy. But on the substantive trafficking count, the
government’s evidence at trial was that Anthony paid R.W. and M.M. to strip naked,
then had sex with M.M. while R.W. waited outside. M.M. thus sustained the bulk of
Anthony’s harmful conduct. Anthony’s conduct toward R.W. was reprehensible, but
the government still must prove how that conduct warrants compensation for a
lifetime of psychological treatment.
21
rejected this argument, citing expert testimony that the defendant had been the “most
significant cause” of the victims’ harm and that they would have needed identical
treatment even if they had had “no previous trauma.” In re Sealed Case, 702 F.3d at 67.
The court stressed that “entire liability for harm may be imposed . . . if two or more
causes produce [a] single result and either one cause would be sufficient alone to produce
[the] result or each cause is essential to [the] harm.” Id. at 66 (relying on United States v.
Monzel, 641 F.3d 528, 538 (D.C. Cir. 2011)). Similarly here, the government argues,
Anthony’s crimes were sufficient for R.W.’s trauma.
This out-of-circuit authority is triply inapposite. First, unlike the expert in In re
Sealed Case, physician’s assistant Bryant did not conclude that R.W. would have needed
identical treatment even if William had not already harmed her. Thus, on this record, it is
not clear that Anthony’s harms were sufficient, apart from William’s harms, to require a
lifetime of psychological treatment. Second, as explained above, the restitution statutes
require that the defendant’s offenses were the but-for cause of the victim’s losses. In re
Sealed Case’s sufficient-causation test—a “rare” alternative to a “strict but-for” causation
test, see Burrage, 571 U.S. at 214—is inconsistent with that requirement. And third, in
any event, a sufficient-causation test would not apply on this case’s facts. As the Supreme
Court explained in Burrage, the test ordinarily applies when “multiple sufficient causes
independently, but concurrently, produce a result.” Id. at 214. Even had the government
offered evidence that Anthony’s convicted conduct caused all of R.W.’s harms—and it
22
did not—the sufficient-causation approach would fail, because his crimes postdated,
rather than concurred with, William’s offenses.
We recognize the difficulty in setting a restitution amount in cases like this one,
where the victim’s asserted losses overlap with similar harms that occurred before the
events at issue. But a district court cannot “simply ‘rubber stamp’ a victim’s claim of
loss” because it is difficult to distinguish past and present harms. See Ferdman, 779 F.3d
at 1133. The court need not calculate the harms with “‘exact’ precision,” but it must set a
restitution amount that is “rooted in a calculation of actual loss.” Id. (emphasis in
original) (citations omitted). By ignoring this imperative and ordering restitution for
losses that Anthony did not cause, the district court abused its discretion. See United
States v. Parker, 553 F.3d 1309, 1324 (10th Cir. 2009); United States v. Quarrell, 310
F.3d 664, 678 (10th Cir. 2002). As a result, we will vacate the restitution order and
remand for a recalculation limited to actual losses resulting from Anthony’s offenses of
conviction.
III. Liability for the Charged Conspiracy
Anthony’s second objection is that the restitution award improperly holds him
accountable for all the losses that R.W. and M.M. sustained from the roughly three weeks
and one week in October 2014, respectively, during which Maurice held them captive.
The superseding indictment charged Anthony with conspiring with Maurice, Tonya Gum,
and two other customers to operate a child-prostitution enterprise for those three weeks,
and the jury convicted him of that charge. Anthony now claims a variance between the
broad, charged conspiracy and the proof offered at trial. He argues that, though the
23
evidence demonstrated Maurice’s and Gum’s participation in the broad, charged
conspiracy, it proved only his involvement in a subset of that conspiracy, i.e., a “much
smaller conspiracy” with Gum to obtain R.W. and M.M. for a single sexual transaction. 11
See Appellant’s Opening Br. 18. He argues that restitution should have been limited to
losses resulting from that proved subset of the broad conspiracy.
Ordinarily, we consider the existence of a conspiracy variance in the context of an
appeal from a conviction for the conspiracy charged in the indictment. See, e.g., United
States v. Marquez, 898 F.3d 1036, 1043 (10th Cir. 2018); United States v. Fishman, 645
F.3d 1175, 1189 (10th Cir. 2011). In that context, we inquire (i) whether the evidence at
trial suffices to sustain the jury’s finding that the defendant was a member of the single
charged conspiracy; and (ii) if the evidence proves multiple conspiracies, whether the
variance substantially prejudiced the defendant’s rights. See United States v. Carnagie,
533 F.3d 1231, 1237 (10th Cir. 2008). Prejudice exists if the defendant lacked sufficient
notice of the need to defend against smaller conspiracies, or if the jury imputed to the
11
Anthony characterizes the purported smaller conspiracy as an agreement to
“obtain R.W. and M.M. for sex” on one night. See Appellant’s Opening Br. 23. This
characterization stretches the evidence offered at trial. The evidence established that
Anthony called one of Gum’s escort lines asking for company at his office, and that
Gum put R.W. in touch with him. That R.W.—a minor prostitute—happened to fulfill
Anthony’s request does not prove that he conspired to obtain her for sex. Even less
evidence supported a conspiracy involving M.M., who showed up with R.W. when
she returned to the office after Anthony had located his wallet. Nevertheless, because
Anthony concedes guilt of a conspiracy to obtain R.W. and M.M. for a sexual
transaction, we will assume the existence of such a conspiracy.
24
defendant evidence of guilt offered against coconspirators who were involved in other
conspiracies. United States v. Hill, 786 F.3d 1254, 1266 (10th Cir. 2015).
Here, though he argues that the evidence at trial failed to prove his involvement in
the broad, charged conspiracy, Anthony admits that evidence of his guilt in the smaller
conspiracy sufficed for the jury to convict him of the charged conspiracy. See Appellant’s
Opening Br. 24 (explaining that a conviction “did not require a finding that he joined the
larger, charged conspiracy”). “[W]e look to the elements of the crime as defined by law”
to ascertain what facts the jury had to find to convict. United States v. Caldwell, 589 F.3d
1323, 1333 (10th Cir. 2009) (citation omitted). To convict Anthony of conspiracy to
commit child-sex trafficking, the jury had to find (i) that “two or more persons agreed to
violate” the child-sex-trafficking laws; (ii) that Anthony “knew at least the essential
objectives of the conspiracy”; (iii) that he “knowingly and voluntarily became part of it”;
and (iv) that the “alleged coconspirators were interdependent.” United States v. Serrato,
742 F.3d 461, 467 (10th Cir. 2014) (quoting Carnagie, 533 F.3d at 1238).
In this case, the district court did not instruct the jury that it could convict only if
Anthony had conspired with all the alleged coconspirators to operate a child-prostitution
enterprise for three weeks. Rather, it instructed the jury on the minimum facts necessary
to convict, i.e., that “at least two individuals reached an agreement” at any time “between
. . . October 8 . . . [and] 27, 2014,” to “engage in sex trafficking of a child.” See ROA vol.
3 at 563. Consistent with these instructions, the jury could convict on evidence proving
only the supposed smaller conspiracy, i.e., that Anthony had agreed with Gum to arrange
a single sexual transaction with R.W. and M.M. No prejudicial guilt-spillover effect was
25
necessary to find Anthony guilty on this conspiracy. In its closing argument on the
conspiracy count, the government focused solely on Anthony’s single transaction with
Gum and not on any facts that might tie him to the broad, charged conspiracy. For
example, it did not argue that Anthony had conspired with the other indicted customers.
And for good reason—despite charging them as coconspirators, the government
introduced no evidence that the customers even knew of each other.
Nevertheless, despite conceding the evidence’s sufficiency for his conviction,
Anthony disputes its sufficiency for the restitution award. He contends that proof of the
minimum facts necessary to convict on the broad, charged conspiracy isn’t sufficient to
justify restitution for the entire conspiracy. Rather, he argues, the scope of his restitution
liability should approximate the scope of the conspiracy proved at trial.
But Anthony failed to preserve this argument in the district court. Before his
sentencing, the government moved for “full restitution” for all losses resulting from the
three-week conspiracy charged in the indictment. ROA vol. 2 at 53. The government
requested that the court hold the alleged conspirators jointly and severally liable for the
award, and at the sentencing hearing, the court indicated that it would grant that request.
Rather than file his own briefing, Anthony joined his codefendant Trung N. Duong’s
response and surreply to the motion. Neither brief mentions Anthony’s trial, much less
suggests a variance between the indictment and the proof offered at trial. In fact, Duong’s
sole argument about “the conspiracy charged in this case,” id. at 209, is that the district
court should apportion restitution liability under 18 U.S.C. § 3664(h) to reflect his “small
role” in it, id. at 210–11. Anthony reiterated this argument in his filing joining Duong’s
26
briefs, asserting that, like Duong, his “role in the conspiracy to which he was convicted”
was as a “one-time” customer. Id. vol. 1 at 226. Thus, Anthony contested only his share
of restitution liability for the charged three-week conspiracy; he did not dispute that he
had joined that conspiracy, nor did he argue that restitution should be limited to some
smaller conspiracy proved at trial. 12
Anthony insists that he preserved this restitution, conspiracy-variance argument by
moving at trial for a general judgment of acquittal under Rule 29. In his view, a general
motion for acquittal preserves “any and all challenges to the sufficiency of the evidence,”
including the evidence for restitution. Appellant’s Reply Br. 12. A general motion for
acquittal, however, constitutes a challenge to “the sufficiency of each essential element of
the government’s case.” United States v. Kelly, 535 F.3d 1229, 1234–35 (10th Cir. 2008).
And restitution is not an “essential element” of the government’s case; it is a remedy that
a district court imposes after the government proves its case and achieves a conviction. A
sufficiency-of-the-evidence challenge under Rule 29, then, does not preserve a challenge
to the evidence supporting restitution. 13 Instead, a defendant must specifically object to
12
Anthony now argues that he “never has” sought apportionment of restitution
liability. Appellant’s Reply Br. 15. Indeed, he “basically concede[s]” the district
court’s authority to impose joint-and-several liability. Id. at 14. At the district court,
though, Anthony adopted Duong’s arguments “in their entirety,” ROA vol. 1 at 226,
and Duong expressly argued that the court should apportion restitution liability rather
than order joint-and-several liability.
13
Anthony indeed preserved a challenge to his conviction as based on
insufficient evidence. Anthony moved for a general judgment of acquittal at the close
of the government’s case-in-chief. The district court reserved decision, then denied
the motion after Anthony rested. Anthony did not then renew his motion, but renewal
wasn’t required in such circumstances to preserve an attack on the sufficiency of the
27
the evidence for restitution to preserve the issue for appeal. See, e.g., United States v.
Wright, 848 F.3d 1274, 1284 (10th Cir. 2017); United States v. Zhou, 717 F.3d 1139,
1154 (10th Cir. 2013); United States v. Overholt, 307 F.3d 1231, 1253 (10th Cir. 2002).
Because Anthony forfeited his conspiracy-variance argument, we review it for
plain error. See United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011). We will
reverse only if (i) there is an error; (ii) that is plain, i.e., “clear or obvious under current
law”; (iii) “that affects substantial rights”; and (iv) that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Goode, 483 F.3d
676, 681 (10th Cir. 2007) (citation omitted).
Anthony argues that the district court erred by compensating losses beyond his
proved conduct underlying his conspiracy conviction. We have long held that a defendant
convicted of a conspiracy offense is liable in restitution for all losses that proximately
result from the conspiracy itself, including losses attributable to coconspirators. See, e.g.,
United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003); United States v. Nichols,
169 F.3d 1255, 1278 (10th Cir. 1999); United States v. Brewer, 983 F.2d 181, 184–85
(10th Cir. 1993). And we have equated the conspiracy of conviction for restitution
purposes with the “offense as outlined in the indictment.” United States v. Alisuretove,
788 F.3d 1247, 1258 (10th Cir. 2015). In those cases, though, the evidence offered at trial
evidence for his conviction. See United States v. Wahl, 290 F.3d 370, 373–75 (D.C.
Cir. 2002) (holding that a defendant doesn’t forfeit a sufficiency challenge by failing
to renew a Rule 29 motion made after the close of the government’s case-in-chief
where the district court reserved decision until after submitting the case to the jury).
But, as explained above, a preserved challenge to the evidence for a conviction
doesn’t preserve a challenge to the evidence for restitution.
28
proved the defendant’s membership in the broad, charged conspiracy—not a subset of it
with a non-fatal variance.
So this leaves Anthony room to argue that the conspiracy proved at trial, not the
broader conspiracy charged, determines the scope of his restitution liability. In effect,
Anthony suggests that, for restitution purposes, the conspiracy of conviction must
conform to the proof at trial rather than the scope of the indictment.
The threshold matter, of course, is whether the conspiracy proved at Anthony’s
trial varied from the conspiracy charged in the superseding indictment. See United States
v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005). At a minimum, the evidence proved
that for three weeks in October 2014, Maurice and Gum conspired to operate a
prostitution enterprise, which included two prostituted minor females. Maurice and Gum
played interdependent roles to ensure the success of the enterprise: Maurice recruited and
controlled the girls, while Gum advertised the girls’ services and connected them with
customers. The government offered no evidence, however, that Anthony ever joined this
broad conspiracy. Instead, it proved that Anthony and Gum agreed to arrange a single
commercial sex transaction with R.W. on October 24, 2014.
The main deficiency in proof concerns the second and third conspiracy elements,
i.e., knowledge of the conspiracy’s objective and knowing participation in it. See United
States v. Pickel, 863 F.3d 1240, 1252 (10th Cir. 2017) (noting the “overlap[]” between
these elements). To demonstrate knowing participation, the evidence must “show that the
defendant shared a common purpose or design with his alleged coconspirators.” United
States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009) (citation omitted). Though the
29
defendant need not know “the existence or identity” of all conspirators or “the full extent
of the conspiracy,” he must have a “general awareness of both the scope and the objective
of the enterprise to be regarded as a coconspirator.” United States v. Evans, 970 F.2d 663,
669–70 (10th Cir. 1992) (citation omitted). The knowing requirement is subjective, so we
“examine the conspiracy from th[e] defendant’s point of view.” Id. at 674.
Here, nothing suggests that Anthony shared his alleged coconspirators’ purpose to
operate a child-prostitution enterprise throughout October 2014. From his perspective,
Anthony sought to obtain R.W. and M.M. from Gum to have sex with on a single night.
In fact, in its closing argument, the government described the “purpose of the agreement”
from Anthony’s perspective as “having sex,” not as running a prostitution enterprise. See
ROA vol. 3 at 573. The government now argues that Anthony knowingly provided
money for the enterprise’s “continued operation” and for the “provision of R.W. and
M.M. to others.” Appellee’s Br. 49. Yet nothing suggests that Anthony considered or was
motivated by the enterprise’s viability or others’ ability to obtain escorts from it. True, he
likely knew that paying for sex with the victims facilitated a broader enterprise. And
action that “facilitate[s] the venture as a whole” tends to prove the interdependence
element of a conspiracy. United States v. Acosta–Gallardo, 656 F.3d 1109, 1124 (10th
Cir. 2011). But “[m]ere knowledge” that his actions furthered an illegal enterprise, even
in conjunction with his participation in a small part of the enterprise, doesn’t by itself
establish that Anthony “joined in the grand conspiracy.” See United States v. Ellis, 868
F.3d 1155, 1176 (10th Cir. 2017) (citation omitted); cf. Evans, 970 F.2d at 670 (noting
that it would “pervert the concept of conspiracy” to treat a drug dealer as a member of a
30
“vast conspiracy” with the Medellin drug cartel simply because the dealer knows his
supply is traceable to the cartel). 14
We therefore conclude that a variance occurred between the indictment and the
proof at trial. As explained above, the evidence for the smaller conspiracy was sufficient
to convict Anthony of the charged offense. But that doesn’t end the matter. In our view,
where a variance occurs, and evidence for a smaller conspiracy proved at trial satisfies
only the minimum facts necessary for the elements of the charged conspiracy offense, the
smaller conspiracy constitutes the conspiracy of conviction for restitution purposes. To
base restitution liability on a defendant’s having been a coconspirator in the broad,
charged conspiracy, when the evidence offered at trial shows otherwise, would
contravene the “bedrock principle that restitution should reflect the consequences of the
defendant’s own conduct.” Paroline, 572 U.S. at 455.
The government emphasizes that the evidence at trial proved the existence of the
“full conspiracy.” Appellee’s Br. 50. We agree, but the evidence failed to prove that
Anthony was a coconspirator in it. The government adds that the district court properly
“impose[d] joint liability on all defendants for loss caused by others participating in the
scheme.” Id. at 45 (quoting United States v. Moeser, 758 F.3d 793, 797 (7th Cir. 2014)).
Again, we agree on the permissibility of joint-restitution liability, but the “scheme” for
14
The government insinuates that Anthony conceded joining the broader
conspiracy when at trial his counsel admitted “some voluntariness there to do this
agreement.” Appellee’s Br. 49 (emphasis omitted) (quoting ROA vol. 3 at 598). But
the “agreement” to which counsel referred was Anthony’s agreement with Gum to
obtain a prostitute. Counsel never admitted that Anthony had joined a broader
agreement to traffic children for profit.
31
which such liability can be ordered is the one proved at trial. The government, however,
contends that the district court properly held Anthony liable for the charged conspiracy
because it couldn’t “substitute its view of the evidence . . . for the jury’s verdict.” Id. at
50 (quoting United States v. Morgan, 635 F. App’x 423, 443 (10th Cir. 2015)). But the
verdict did not include a finding that Anthony had joined the broad, charged conspiracy;
it simply found him guilty of the conspiracy offense, based on proof satisfying only the
minimum facts necessary for the offense. Regardless, conforming restitution liability to
the proof does not disturb the jury’s verdict.
Because the district court erred by ordering restitution for the broad conspiracy,
we must next determine whether the error is plain. Plain error exists if it is “‘clear or
obvious’ under ‘current, well-settled law.’” United States v. Story, 635 F.3d 1241, 1248
(10th Cir. 2011) (quoting United States v. Whitney, 229 F.3d 1296, 1308–09 (10th Cir.
2000)). In general, this means that “either the Supreme Court or this court must have
addressed the issue.” United States v. Ruiz–Gea, 340 F.3d 1181, 1187 (10th Cir. 2003).
Here, Anthony falters. He cites no Supreme Court or Tenth Circuit authority ruling
as we have today—that restitution liability for a conspiracy with a non-fatal variance is
measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy
charged in the indictment. It is a matter of first impression for us whether a defendant’s
conviction for a smaller conspiracy limits his restitution liability. Thus, the district court’s
error in using the broad, charged conspiracy to measure restitution in this case is not plain
32
under “well-settled law.” See Story, 635 F.3d at 1248. And that leaves Anthony unable to
meet the plain-error standard.
CONCLUSION
We vacate the district court’s restitution order and remand for a recalculation of
restitution based on actual losses resulting from Anthony’s offenses of conviction.
33