United States v. Kevin Esler , 531 F. App'x 502 ( 2013 )

Case: 11-30479 Document: 00512284717 Page: 1 Date Filed: 06/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2013
No. 11-30479 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
KEVIN D. ESLER,
Defendant – Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CR-35-1
Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
Kevin D. Esler was charged in a two-count indictment with receipt of child
pornography and possession of child pornography. He pled guilty, however, only
to the receipt count. At sentencing, the district court imposed an upward
variance, sentencing Esler to 70 months of imprisonment followed by a 20-year
term of supervised release. The court further ordered $37,750 in mandatory
restitution pursuant to 18 U.S.C. § 3663(a) and § 2259. Esler objects to both the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-30479 Document: 00512284717 Page: 2 Date Filed: 06/24/2013
No. 11-30479
restitution order and the conditions of supervised release. Finding no error, we
AFFIRM.
I.
When he was 18 or 19 years old, Esler befriended 12-year-old J.S., the
victim, while playing an online video game. The two exchanged text messages
in which Esler sent pornographic images to J.S., discussed sexual acts with him,
and continually requested pictures of J.S.’s genitals, which J.S. was reluctant –
and initially unwilling – to provide. Esler told J.S. that he was bisexual,
depressed, and that he had suicidal thoughts and would kill himself if J.S. did
not send the requested picture. Eventually J.S. complied and sent Esler a
picture of his erect penis via text message. After receiving the photo, Esler
immediately demanded that J.S. send additional pictures. Moreover, Esler
threatened to post the original photo online if J.S. did not comply with his
demand.
During this time period, J.S.’s mother noticed that he had stopped eating,
had trouble sleeping, and had started to lose weight. Although J.S. had
previously gotten As in school, he began getting Cs, and his teachers started
sending notes home. J.S.’s mother eventually discovered the text messages from
Esler on J.S.’s cell phone. She subsequently notified the authorities. During the
investigation, authorities discovered both the original image of J.S. and a nude
image of an unidentified child. They also discovered sexually explicit text
messages Esler had sent to a 15-year-old girl, which discussed Esler’s sending
sexually explicit images.
Esler pled guilty to receiving child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and was sentenced to a 70-month prison term. On appeal, he
challenges the district court’s restitution order and two of his conditions of
supervised release.
2
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No. 11-30479
II.
First, we address Esler’s argument with respect to his conditions of
supervised release. We review conditions of supervised release for abuse of
discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001).
Both of the conditions Esler challenges restrict his contact with children.1
The broader condition states:
The defendant shall not have any contact with any child under the
age of 18 . . . without the prior approval of the United States
Probation Office. If approved, the defendant must be accompanied
by a responsible adult who is aware of his/her conviction and
supervision status, and who has been approved in advance by the
United States Probation Office. Contact includes, but is not limited
to: physical contact, verbal communication, and/or electronic
communication such as e-mail. Contact also includes congregating
and/or loitering around school yards, playgrounds, swimming pools,
arcades, zoos or other places frequented by children under the age
of 18. Incidental contact in normal daily commercial life such as,
but not limited to, making purchases at a retail establishment, is
permissible.
The second, more specific condition states:
The defendant shall not date or cohabitate with anyone who has
children under the age of 18 without approval of U.S. Probation.
Esler objected to both conditions in his pre-sentencing memorandum, and the
district court noted his objection at the sentencing hearing. Esler generally
argues that the conditions are overly restrictive and constitute an excessive
burden on his liberty. The government, however, properly notes that Esler’s
conduct targeted minors, and as such, it is reasonable to monitor his contact
with children following his release from prison.
1
Esler also challenges the condition of supervised release restricting his access to the
internet. His argument, however, is without merit in the light of United States v. Miller, 665
F.3d 114, 133-34 (5th Cir. 2011).
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In United States v. Miller, 665 F.3d 114 (5th Cir. 2011), we affirmed a 25-
year term of supervised release, where the defendant had “pled guilty to one
count of transportation of child pornography.” 665 F.3d at 116. Although the
condition at issue in Miller restricted the defendant’s internet usage, our
discussion with respect to the role of the Probation Office is relevant here. See
id. at 127. We assumed “the Probation Office [would] reasonably exercise its
discretion,” and noted that, “The district court’s restrictions . . . permit flexibility
by allowing the probation officer to consider all the circumstances.” Id. at 133-34
(citation omitted). As such, we concluded that, “This is a reasonable means of
balancing [the defendant’s] rights and the goal of protecting minors.” Id. at 133.
In the instant case, both challenged conditions permit Esler to seek
exceptions from the Probation Office. Thus, in the light of Miller and Esler’s
conduct in targeting children through a video game system, we conclude that the
district court did not abuse its discretion in imposing the conditions of
supervised release.
III.
Next, we address Esler’s challenge to the district court’s restitution order.
We review the legality of a restitution order de novo. United States v. Arledge,
553 F.3d 881, 897 (5th Cir. 2008). But, if the order is legally permitted, we
review the amount of restitution for an abuse of discretion. Id. In this case, the
district court ordered $37,750 in restitution for J.S.’s private school tuition and
the cost a new cellular phone.2
18 U.S.C. § 3663(a) and § 2259 were the statutory bases for the district
court’s restitution order. Cf. United States v. Love, 431 F.3d 477, 479 (5th Cir.
2
To the extent Esler challenges the amount of the restitution award, the district court
properly tailored the order to allow for reductions in the amount of restitution based on
financial aid receipt or eventual admittance into one of the select prep schools. We thus find
that the district court did not abuse its discretion in determining the proper amount.
4
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2005) (“A federal court cannot order restitution ‘except when authorized by
statute.’” (citation omitted)). Pursuant to section 2259(a), “the court shall order
restitution for any offense under this chapter.” Id. And, it is undisputed that
Esler’s conviction for receipt of child pornography is covered under section 2259.
Section 2259(b)(1) requires that, “The order of restitution . . . direct the
defendant to pay the victim . . . the full amount of the victim’s losses.” Id.
(emphasis added). Indeed, we previously have stated that section 2259 “reflects
a broad restitutionary purpose,” and even when “full restitution may appear
harsh, it is not grossly disproportionate to the crime of receiving and possessing
child pornography.” In re Amy Unknown, 701 F.3d 749, 760, 772 (5th Cir. 2012)
(en banc), petition for cert. filed (Jan. 31, 2013) (No. 12-8505), and petition for
cert. filed (Jan. 31, 2013) (No. 12-8561).
Applicable to the instant case is section 2259(b)(3)(F). Subsection (F)
requires restitution for “any other losses suffered by the victim as a proximate
result of the offense.” Id. (emphasis added). Thus, unlike the other provisions
of section 2259(b)(3), subsection (F) requires a showing of proximate cause before
restitution can be ordered.
In In re Fisher, 640 F.3d 645 (5th Cir. 2011), we addressed proximate
cause with respect to the Crime Victims’ Rights Act. See id. at 648. We stated
that, “A person is proximately harmed when the harm is a reasonably
foreseeable consequence of the criminal conduct.” Id. (citing United States v.
Vaknin, 112 F.3d 579, 590 (1st Cir. 1997), for its formulation of proximate cause
as a requirement that ensures “the causal nexus between the conduct and the
loss is not too attenuated (either factually or temporally)” (internal quotation
marks omitted)); see also Lewis v. Walston & Co., Inc., 487 F.2d 617, 622 (5th
Cir. 1973), disagreed with on other grounds by Pinter v. Dahl, 486 U.S. 622
5
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(1988) (defining proximate cause with reference to whether the individual’s
actions “were a ‘substantial factor’ . . . and thus the ‘proximate cause’”).
Esler’s primary argument is that his conduct of conviction—receipt of child
pornography—was not the proximate cause of J.S.’s substantial academic
decline. He rather ironically suggests that, if he is responsible at all for J.S.’s
poor grades, it was his post-offense threats and harassment of J.S. that
proximately caused the academic decline. The victim impact statements indicate
that J.S. certainly suffered harm from Esler’s post-offense threats. But, in order
to conclude that the restitution award legally was permissible, we must
determine only whether J.S.’s academic decline was “a reasonably foreseeable
consequence of [Esler’s] criminal conduct”—i.e., Esler’s coercive actions in
soliciting and receiving J.S.’s photo. See Fisher, 640 F.3d at 648.3
A review of the record demonstrates clearly that Esler’s criminal conduct
was causally related to, and had a substantial nexus with, J.S.’s academic
decline. The government references numerous examples of J.S.’s erratic
behavior that are correlated with his failings in school. For example, J.S.
actively was attempting to conceal his contact with Esler from his family; he was
worried about his family discovering the image of his genitalia and learning that
he had sent the image to Esler; and J.S. suffered great shame when the image
actually was discovered by his mother. Sufficient evidence thus exists to link
Esler’s persistent requests for J.S. to take and send a nude
photograph—combined with Esler’s apparent threat to commit suicide if J.S. did
not provide such a picture—with J.S.’s scholastic decline.
3
Contrary to Esler’s argument, we are not required to apportion the amount of loss
between his conduct of conviction and his post-offense threats and harassment of J.S. All that
we must decide is whether his receipt of child pornography was a substantial factor in causing
J.S.’s harm. See Lewis, 487 F.2d at 622; see also United States v. Crandon, 173 F.3d 122, 126
n.2 (3d Cir. 1999).
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It is reasonably foreseeable that harassing a minor into sending a nude
image of himself would cause great stress and anxiety such that his academic
achievement would be impacted. We therefore find that the restitution order
was legally imposed pursuant to 18 U.S.C. § 3663(a) and § 2259.
IV.
For the foregoing reasons, the sentence and restitution order imposed by
the district court are
AFFIRMED.
7