United States v. Sanderson , 515 F. App'x 16 ( 2013 )

11-2488-cr(L)
United States v. Sanderson
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of March, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 VINCENT L. BRICCETTI,
10 District Judge.*
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18
19 -v.- Nos. 11-2488-cr(L),
20 11-2608-cr(CON),
21 12-321-cr(CON)
22 JARELL SANDERSON, HASSANAH DELIA
23
24 Defendants-Appellants.
25
26
27 FOR SANDERSON: RANDOLPH Z. VOLKELL, Merrick, NY.
28
29 FOR DELIA: RANDALL D. UNGER, Bayside, NY.
*
The Honorable Vincent L. Briccetti, of the United States
District Court for the Southern District of New York, sitting by
designation.
1 FOR APPELLEE: DAVID E. NOVICK, Assistant United States
2 Attorney (Sandra S. Glover, Assistant
3 United States Attorney, on the brief),
4 for David B. Fein, United States Attorney
5 for the District of Connecticut.
6
7 Appeal from the United States District Court for the
8 District of Connecticut (Kravitz, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the order is AFFIRMED.
12 Defendants-appellants Jarell Sanderson and Hassanah
13 Delia appeal from judgments of conviction entered against
14 them by the United States District Court for the District of
15 Connecticut (Kravitz, J.) following guilty pleas by both
16 defendants. Sanderson challenges the district court’s
17 imposition of a Sentencing Guidelines enhancement, and Delia
18 challenges the court’s restitution order. We assume the
19 parties’ familiarity with the facts and procedural history
20 of the case.
21 I. Sanderson
22 Sanderson pled guilty to two counts of Sex Trafficking
23 of a Minor, in violation of 18 U.S.C. § 1591(a) and (b), and
24 one count of Conspiracy to Commit Sex Trafficking of a
25 Minor, in violation of 18 U.S.C. § 1594(c). He contends on
26 appeal that the district court erred in imposing a two-level
27 enhancement under U.S.S.G. § 2G1.3(b)(2)(B), which applies
2
1 if “a participant [] unduly influenced a minor to engage in
2 prohibited sexual conduct.” We review a legal application
3 of the Guidelines de novo and any underlying factual
4 findings for clear error. United States v. Cossey, 632 F.3d
5 82, 86 (2d Cir. 2011) (per curiam).
6 The commentary to § 2G1.3(b)(2)(B) indicates that there
7 is a “rebuttable presumption that subsection (b)(2)(B)
8 applies” if the participant is at least ten years older than
9 the minor. Sanderson does not dispute that he is.
10 Moreover, although Sanderson is correct that factual
11 determinations underlying a Guidelines calculation must be
12 made “with sufficient clarity to permit meaningful appellate
13 review,” United States v. Skys, 637 F.3d 146, 152 (2d Cir.
14 2011), “this obligation may be satisfied by explicitly
15 adopting the factual findings set forth in a defendant’s
16 presentence report.” United States v. Watkins, 667 F.3d
17 254, 261 (2d Cir. 2012) (internal quotation marks and
18 brackets omitted). The district court in this case stated
19 that it was “adopt[ing] the factual statements in the
20 presentence report as the Court’s own findings of fact for
21 purposes of this sentencing.” Special App’x 51.
22
3
1 We have held that if a defendant is subject to the age-
2 based presumptive application of (b)(2)(B) and has “failed
3 to offer any evidence rebutting the presumption on this
4 basis,” the district court is “free to make its finding of
5 ‘undue influence,’ without further explanation, on the basis
6 of the unrebutted presumption alone.” Watkins, 667 F.3d at
7 265. In addition, a “district court that adopts the factual
8 findings of a defendant’s PSR is not required explicitly to
9 provide any further analysis.” Id. at 266. None of the
10 statements to which Sanderson points on appeal can be
11 construed as evidence rebutting the presumption. As such,
12 we find no error in the district court’s application to
13 Sanderson of the two-level enhancement under §
14 2G1.3(b)(2)(B).
15 II. Delia
16 Delia’s only assertion on appeal is that the district
17 court failed to adequately support its imposition of
18 $25,608.80 in restitution for a victim’s future
19 psychological and psychiatric treatment. During Delia’s
20 sentencing, the district indicated that restitution would be
21 a part of the sentence but did not specify an amount. After
22 the government submitted a proposed amount, supported by a
4
1 letter from a social worker who had worked extensively with
2 the victim after the encounter at issue in this case, the
3 district court entered an order adopting the government’s
4 proposed figure without further explanation.
5 “We review an order of restitution deferentially, and
6 we will reverse only for abuse of discretion.” United
7 States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009)
8 (quotation marks omitted). Delia does not argue that the
9 district court lacked the power to order restitution for
10 future treatment. Instead, she points to our recognition
11 that such orders “may be inappropriate where the amount of
12 loss is too difficult to confirm or calculate.” Id. at 486
13 (quotation marks and brackets omitted). She maintains that,
14 as in Pearson, the district court here “did not explain how
15 it estimated the victim[‘s] future expenses” and urges us to
16 “remand the case [] to secure a more thorough explanation
17 from the district court as to the basis for its restitution
18 determination.” Id. at 487.
19 Because the district court adopted the government’s
20 proposed figure in this case, the major problem in Pearson –
21 the court’s failure to explain how it reached its ultimate
22 figure, which differed from what had been proposed – is not
5
1 present. Delia’s challenge is more properly viewed as a
2 contention that the social worker’s letter did not provide a
3 sufficient basis in evidence for the district court to come
4 to its conclusion.
5 Delia’s concerns are not frivolous, and we recognize
6 the difficulty inherent in projecting future medical costs
7 with certainty and the necessity of basing a restitution
8 amount on reliable evidence. However, we find no error in
9 the district court’s order. The government’s proposed
10 figure was supported by the affidavit of a licensed social
11 worker who had worked extensively with the victim, and who
12 stated that she based her conclusions regarding future need
13 for care upon her professional experience. The social
14 worker’s total cost estimate was much higher than the
15 restitution amount ultimately imposed – it was discounted
16 (based on the social worker’s calculation) to reflect other
17 sources of trauma in the victim’s life, and it did not
18 account for possible inflation or increases in the cost of
19 care. Moreover, although Delia filed objections to the
20 government’s submission, she neither requested a hearing at
21 which the social worker could be cross-examined nor
22 submitted any evidence rebutting the social worker’s
23 contentions.
6
1 Under these circumstances, the district court did not
2 abuse its discretion in adopting the government’s proposed
3 figure. See United States v. Doe, 488 F.3d 1154, 1160 (9th
4 Cir. 2007) (an award will be upheld “if the district court
5 is able to estimate, based upon facts in the record, the
6 amount of victim’s loss with some reasonable certainty.”);
7 cf. United States v. Julian, 242 F.3d 1245, 1248 (10th Cir.
8 2001) (remanding for a hearing where the “presentence report
9 contained no evidence regarding the victim’s need for future
10 counseling or the estimated cost of that counseling”).
11 We have considered all of appellants’ arguments and
12 find them to be without merit. For the reasons stated
13 above, the judgment of the district court is AFFIRMED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
7