United States v. John Mobasseri ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0554n.06
No. 19-3792
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Sep 28, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
JOHN S. MOBASSERI, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellant. )
)
BEFORE: SUHRHEINRICH, LARSEN, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. John Mobasseri pleaded guilty to one count of
receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count
of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court
sentenced Mobasseri to a 136-month prison term and ordered him to pay restitution to four victims
totaling $30,000. We later vacated the restitution order because it was entered “without any
explanation at all of the particular amounts it ordered.” United States v. Mobasseri, 764 F. App’x
549, 550 (6th Cir. 2019). On remand, the district court, following a hearing, issued an opinion
ordering restitution totaling $20,500. We now affirm.
Background. Our initial opinion recounts much of the relevant history underlying today’s
appeal, and we recount just some that history here. See generally Mobasseri, 764 F. App’x at 549–
50. As part of his guilty plea, Mobasseri admitted to using his computer to search for and download
images and videos depicting minors engaged in sexually explicit conduct. He also utilized peer-
No. 19-3792, United States v. Mobasseri
to-peer software that enabled third parties to download the material he possessed. Utilizing this
software, the government downloaded from Mobasseri’s computer roughly 1,600 files, many of
which contained child pornography. During a subsequent search of Mobasseri’s home, the
government seized 24,104 images and 924 videos of child pornography saved on Mobasseri’s
laptop and external drives.
Prior to Mobasseri’s sentencing, four victims—Vicky, Chelsea, Pia, and Cindy—sought
restitution totaling $33,000. In addition to sentencing Mobasseri to 136-months imprisonment,
the district court also imposed a total restitution amount of $30,000. We later vacated the
restitution award. On remand, the district court conducted a restitution hearing. Applying
18 U.S.C. § 2259 (mandatory restitution) as well as the factors articulated in Paroline v. United
States, 572 U.S. 434, 460 (2014), the court lowered the total restitution amount to $20,500, payable
to the victims as follows:
• Vicky, $5,000: Base amount $3,000; number of images $1,000; attorneys’ fees
$1,000.
• Chelsea, $7,000: Base amount $3,000; number of images $1,000; attorneys’ fees
$3,000.
• Pia, $4,500: Base amount $3,000; age of victim in images $1,000; attorneys’ fees
$500.
• Cindy, $4,000: Base amount $3,000; attorneys’ fees $1,000.
Legal standard. As instructed by § 2259(a), the district court “shall order” restitution for
any offense involving the sexual exploitation of children and child pornography. See also
Paroline, 572 U.S. at 443 (explaining that § 2259(a) requires a district court to order restitution
for all offenses under Chapter 110 of Title 18, which includes distribution and possession of child
pornography under §§ 2252(a)(2) and 2252A(5)(B)). The restitution order should equal “an
amount that comports with the defendant’s relative role in the causal process that underlies the
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victim’s general losses.” Id. at 458. Because the award is tied to the government’s ability to prove
the defendant’s offense is the proximate cause of the victim’s losses, a restitution award is limited
to the harms reasonably foreseeable to result from the defendant’s conduct. United States v.
Hargrove, 714 F.3d 371, 375 (6th Cir. 2013) (explaining that where a victim’s injury is the type
the statute was designed to prohibit, it is more likely the injury was proximately caused by the
defendant) (citing United States v. Gamble, 709 F.3d 541, 549 (6th Cir. 2013)).
Paroline sets forth factors relevant to that determination. Of those factors, critical here are
whether the defendant reproduced or distributed images of the victim; whether the defendant had
any connection to the initial production of the images; how many images of the victim the
defendant possessed; and reasonable predictions of the number of future offenders likely to be
convicted for crimes contributing to the victim’s general losses. Paroline, 572 U.S. at 460. Those
factors act as “rough guideposts” in determining § 2259 restitution amounts, with the district court
free to exercise its independent judgment and discretion. Id.
With those standards in mind, we review a restitution award for an abuse of discretion.
United States v. Evers, 669 F.3d 645, 654 (6th Cir. 2012). That is, we will reverse a restitution
award only when we are left with a “definite and firm conviction that the [district] court committed
a clear error of judgment.” United States v. Batti, 631 F.3d 371, 379 (6th Cir. 2011) (quoting
United States v. Hunt, 521 F.3d 636, 648 (6th Cir. 2008)). While the district court’s discretion is
ample, the district court cannot, as we previously explained, fail to provide any explanation
whatsoever as to its restitution order. Mobasseri, 764 F. App’x at 550.
Restitution award. The district court did not err in ordering Mobasseri to pay restitution
totaling $20,500. Recognizing the difficulty in this setting in tracing a particular amount of a
victim’s losses to a defendant’s conduct, the district court set out a consistent framework,
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applicable for each victim, to accomplish the restitution goals reflected in § 2259 and Paroline.
The court first determined the “full amount” of each “victim’s losses” proximately caused by the
offense, as required by § 2259(b)(1), which can include any costs incurred or reasonably projected
to be incurred in the future. 18 U.S.C. § 2259(c)(2); see also Hargrove, 714 F.3d at 375
(explaining “the harm endured by the subject of child pornography upon realizing that others are
viewing her image is part of what the child pornography prohibitions are designed to deter,”
making “attendant costs, to the extent factually caused by the viewing,” as ones “proximately
caused” by the defendant’s conduct) (internal quotations and citations omitted).
Second, the district court established a baseline restitution amount for each victim. See
United States v. Reynolds, 626 F. App’x 610, 620 (6th Cir. 2015) (affirming the district court’s
per-victim baseline amount). In arriving at that baseline amount, the court cited statutory
indicators demonstrating Congress’s approval of a $3,000 per victim floor restitution amount. See,
e.g., 18 U.S.C. § 2259(b)(2)(B). The court thus set the baseline for each victim at $3,000.
Next, the district court analyzed the Paroline factors, emphasizing the one it found
particularly relevant here: the number of images Mobasseri possessed of each victim. Paroline,
572 U.S. at 460. The court increased the restitution amount for each victim based on the number
of images Mobasseri possessed following the graduated scale found in USSG § 2G2.2(b)(7).
Finally, the district court considered a host of additional factors also considered by other
courts, including the frequency of views and shares of images, the means by which the images
were acquired, Mobasseri’s individual contribution to the market, and the nature of the victim’s
images. See, e.g., United States v. Lloyd, No. 5:18CR336, 2020 WL 4038241, at *3 (N.D. Ohio
July 17, 2020); United States v. Monzel, 930 F.3d 470, 481 (D.C. Cir. 2019); United States v.
Gamble, No. 1:10-CR-137, 2015 WL 4162924, at *3 (E.D. Tenn. July 9, 2015); Reynolds, 626 F.
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App’x at 620. Taking all of these considerations together, the court ordered Mobasseri to pay
restitution totaling $20,500. The four victims each received the baseline amount and attorneys’
fees; two received $1,000 increases based on the number of images Mobasseri possessed; and one
received a $1,000 increase due to her age in the images.
Mobasseri contends that this framework failed to limit the respective awards to losses
proximately caused by his conduct. We disagree. To be sure, harms that do not stem from the
type of injury the statute is designed to prohibit or are too attenuated fail to satisfy proximate cause.
See, e.g., Evers, 669 F.3d at 660 (declining to award restitution for child care expenses because
the loss of a sex offender as a babysitter is not the sort of harm contemplated by the statute). But
here, the district court carefully applied the Paroline factors and explained how it calculated each
victim’s restitution amount, demonstrating why each victim’s losses resulted from the type of
injury child pornography laws are designed to prevent.
As this methodology was based on sufficient evidence and sound reasoning, we AFFIRM.
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