United States v. Jonathon Sainz , 827 F.3d 602 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3585
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONATHON M. SAINZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 707 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED MAY 20, 2015 — DECIDED JUNE 27, 2016
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Defendant Jonathon M. Sainz ap-
peals from his sentence for transporting and possessing child
pornography. Sainz presents two arguments on appeal. First,
he argues that the district court ordered him to pay too much
restitution to one victim of his possession crime. Second, he
argues that the district court erred by imposing three special
conditions of supervised release. We affirm the restitution or-
der, but we order a limited remand to correct some issues of
2 No. 15-3585
vagueness and overbreadth in the conditions of supervised
release.
I. Restitution Order
By pleading guilty, Sainz confessed to possessing thou-
sands of child pornography images. Six images were of a vic-
tim known as “Cindy,” unlawful images of whom have circu-
lated widely on the internet. The government argued in pre-
sentence filings and during the sentencing hearing that Sainz
should pay restitution to Cindy because she was a victim of
his crime. See 18 U.S.C. § 2259(b)(4) (mandating restitution to
victims of child sexual exploitation). Cindy has incurred fi-
nancial losses such as future lost earnings, attorney fees, and
medical and psychiatric expenses.
In the district court, Sainz argued that restitution to Cindy
was not appropriate because he did not cause her losses. He
possessed images of Cindy but had no role in creating or dis-
tributing them. Sainz claimed that he was not a legal cause of
Cindy’s harm because hundreds or thousands of others also
possessed the images, so she would have been harmed by oth-
ers even if he had never possessed the images of her. The court
rejected this argument because the government had shown
that Sainz proximately caused harm to Cindy by viewing the
images, which Cindy said re-victimized her and made her feel
that the abuse was continuing.
The district court’s approach to causation was confirmed
as correct by the Supreme Court’s intervening decision in Pa-
roline v. United States, 572 U.S. —, 134 S. Ct. 1710 (2014). The
Court interpreted 18 U.S.C. § 2259, the statute governing res-
titution for child sexual exploitation offenses, to require the
government to show the defendant’s offense proximately
No. 15-3585 3
caused a victim’s losses. Id. at 1722. In Paroline the Court held
that the defendant was required to pay restitution to the vic-
tim depicted in images he possessed because he caused some
portion of her losses: “While it is not possible to identify a dis-
crete, readily definable incremental loss [the defendant]
caused, it is indisputable that he was a part of the overall phe-
nomenon that caused her general losses.” Id. at 1726. The
Court recognized the ongoing harm possession inflicts on the
victim because “every viewing of child pornography is a rep-
etition of the victim’s abuse.” Id. at 1727.
In light of Paroline, Sainz does not challenge on appeal the
district court’s ruling that he caused harm to Cindy and must
pay her some amount of restitution. Instead, he challenges
only the amount he was ordered to pay, which he argues is
disproportionate to his relative role in causing Cindy’s losses.
We review the calculation of restitution for abuse of dis-
cretion and will set aside an order of restitution only if the
district court used inappropriate factors or did not exercise
discretion at all. United States v. Stein, 756 F.3d 1027, 1029 (7th
Cir. 2014), citing United States v. Frith, 461 F.3d 914, 919 (7th
Cir. 2006). We may find an abuse of discretion, though, where
a district court “based its ruling on an erroneous view of the
law.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990);
see also United States v. Robers, 698 F.3d 937, 941 (7th Cir. 2012)
(de novo review of legality of restitution order).
The government argued to the district court that Sainz
should pay $8,387.43 in restitution, which is 1/136 of Cindy’s
total loss for the relevant time period. The government di-
vided the total loss by 136 because Sainz is the 136th offender
who has been prosecuted and ordered to pay Cindy restitu-
tion. This calculation is known as the 1/n method, where n
4 No. 15-3585
represents the number of defendants who have paid the vic-
tim restitution plus 1 (to count the defendant being sen-
tenced). See United States v. Gamble, 709 F.3d 541, 554 (6th Cir.
2013) (approving a pre-Paroline restitution order using the 1/n
method, calling the method a “pragmatic solution that district
courts may use as a framework”). 1
The district court agreed with the government and or-
dered Sainz to pay Cindy $8,387.43 in restitution, citing Gam-
ble and using the 1/n method. Sainz contends that attributing
1/136 of the total loss to him was an error under Paroline.
Paroline addressed a difficult, nearly intractable problem.
The Supreme Court’s decision avoided rigid or mechanical
rules, leaving district courts considerable discretion in decid-
ing the extent of a defendant’s restitution in such cases. The
Court instructed broadly that “a court applying § 2259 should
order restitution in an amount that comports with the defend-
ant’s relative role in the causal process that underlies the vic-
tim’s general losses.” 134 S. Ct. at 1727. The amount of restitu-
tion for a possessor of child pornography like Paroline or
Sainz should be neither “severe” nor a “token or nominal
amount.” Id. “The required restitution would be a reasonable
and circumscribed award imposed in recognition of the indis-
putable role of the offender in the causal process underlying
the victim’s losses and suited to the relative size of that causal
role.” Id.
1 Cindy’s total loss amounted to a little more than $1.1 million, most
of which is future lost earnings. This total includes only expenses incurred
after the defendant’s offense conduct. Sainz does not dispute the govern-
ment’s calculation of the total loss, which is both conservative and well-
documented.
No. 15-3585 5
The Court then discussed “a variety of factors district
courts might consider in determining a proper amount of res-
titution”:
[D]istrict courts might, as a starting point, deter-
mine the amount of the victim’s losses caused by
the continuing traffic in the victim’s images …
then set an award of restitution in consideration
of factors that bear on the relative causal signif-
icance of the defendant’s conduct in producing
those losses. These could include the number of
past criminal defendants found to have contrib-
uted to the victim’s general losses; reasonable
predictions of the number of future offenders
likely to be caught and convicted for crimes con-
tributing to the victim’s general losses; any
available and reasonably reliable estimate of the
broader number of offenders involved (most of
whom will, of course, never be caught or con-
victed); whether the defendant reproduced or
distributed images of the victim; whether the
defendant had any connection to the initial pro-
duction of the images; how many images of the
victim the defendant possessed; and other facts
relevant to the defendant’s relative causal role.
Id. at 1728.
We find no legal error or abuse of discretion in the district
court’s order that Sainz pay Cindy $8,387.43 in restitution.
Though the district court sentenced Sainz before Paroline was
decided, its ruling followed the same procedure of first calcu-
lating total loss and then determining what fraction of that
loss should be attributed to the defendant. The district court
6 No. 15-3585
did not explicitly discuss all of the factors that Paroline said
may be relevant in determining the defendant’s relative role.
The district court’s use of the 1/n method took into account
the number of past criminal defendants found to have con-
tributed to Cindy’s total loss, which is one of the Paroline fac-
tors that was ascertainable in this case.
While a district court could consider additional factors, the
bottom line here is that the amount of the award is substan-
tively reasonable. It is neither severe nor trivial. It is a reason-
able and circumscribed award for Sainz’s relative role in caus-
ing Cindy’s harm. Though he neither produced nor distrib-
uted her images, he possessed them and in doing so re-vic-
timized her and contributed significantly to her harm. The
district court did not abuse its discretion in finding that
roughly $8,400 in restitution was fair for this defendant.
Sainz argues that the 1/n method treats all defendants con-
victed of possessing or distributing any images of Cindy as
equals. When the 1/n method, and only that method, is used,
the restitution amount for each offender does not account for
the offender’s relative role or other individualized factors. The
result depends only on the total loss and the sequence in
which multiple offenders are sentenced. For example, if the
method were strictly applied to all offenders who distributed
or received images of Cindy, the third offender sentenced
would owe a restitution amount of roughly $366,000 to Cindy
(1/3 of her total losses) while the 3000th offender sentenced
would owe about $366 (1/3000 of her total losses).
Sainz argues that use of the 1/n method is contrary to the
instruction in Paroline to award restitution that comports with
the individual defendant’s relative role in causing the harm.
The method does not incorporate any of the offender-specific
No. 15-3585 7
factors discussed in Paroline, such as whether the offender re-
produced or distributed images of the victim, whether the de-
fendant had any connection to the initial production of the
images, and how many images of the victim the defendant
possessed. Sainz believes those factors weigh in favor of lower
restitution in his case because he did not produce or distribute
the images and because he possessed only six images of
Cindy.
Sainz also argues that the district court erred by failing to
consider other factors suggested in Paroline. The government
did not present the district court with either a prediction
about the number of offenders likely to be convicted in the
future for contributing to Cindy’s losses or an estimate of the
broader number of offenders who were involved but are un-
likely to be caught. Sainz believes that accounting for these
factors would lead to a lower restitution order in his case be-
cause his role was small as compared to the hundreds or thou-
sands of others who may have also possessed the images.
We do not read Paroline as requiring district courts to con-
sider in every case every factor mentioned. The Supreme
Court made clear that the Paroline factors were permissive, not
mandatory, and were provided as “rough guideposts” that
“district courts might consider in determining a proper
amount of restitution.” Id. at 1728. The Court explained that
“it is neither necessary nor appropriate to prescribe a precise
algorithm for determining the proper restitution amount at
this point in the law’s development,” adding: “These factors
need not be converted into a rigid formula.” Id.
Many of the factors discussed in Paroline refer to infor-
mation that may not even be reliably known. For example, the
government may not be able to produce evidence that would
8 No. 15-3585
provide reasonable predictions about the number of offend-
ers likely to be convicted in the future or the broader number
of offenders who were involved but are unlikely to be caught.
See 134 S. Ct. at 1728. Such predictions might well be mere
guesses. But the Supreme Court made clear in Paroline that the
difficulty of coming up with reasonable estimates for an inde-
terminate number of other offenders should not be a barrier
to all compensation for victims of child pornography. Id. at
1727 (discussing “Congress’ clear intent that victims of child
pornography be compensated by the perpetrators who con-
tributed to their anguish”). As difficult as the problem is, the
Paroline Court left no doubt that “a court must assess as best
it can from available evidence the significance of the individual
defendant’s conduct in light of the broader causal process that
produced the victim’s losses.” Id. at 1727–28 (emphasis
added).
The district court here considered the available evidence,
exercised its discretion, and arrived at a reasonable restitution
award. The court did not err by not addressing every Paroline
factor. Sainz may be correct that the 1/n method is not appro-
priate for all cases because the restitution amount depends so
heavily on the number of offenders previously sentenced.
Where n is very small or very large, a more nuanced method
may be required. But the application of that method to this
case resulted in a reasonable restitution order of $8,400 for an
offender who possessed six images of the victim and indis-
putably contributed to her harm. That amount was not an
abuse of discretion. We affirm the restitution order.
II. Special Conditions of Supervised Release
Sainz’s sentence included several special conditions of su-
pervised release. All were recommended in the presentence
No. 15-3585 9
report, so there was no surprise at sentencing in this respect.
See United States v. Lewis, — F.3d —, 2016 WL 3004435, at *5
(7th Cir. 2016). Sainz did not raise any objections before they
were imposed or address them in his arguments about sen-
tencing. Nor did he assert any (unnecessary) exceptions after
they were imposed. On appeal, however, he challenges three
conditions based on recent decisions of this court. See gener-
ally United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United
States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v.
Siegel, 753 F.3d 705 (7th Cir. 2014); and their numerous prog-
eny.
The challenged conditions will restrict Sainz’s future ac-
cess to sexually explicit material (including material concern-
ing adults), his contact with children, and his use of comput-
ers and the internet. The district court did not take steps that
could, as in Lewis, have resulted in a waiver by the defense of
the issues raised on appeal. United States v. Lewis, — F.3d at —
(finding waiver, or at least forfeiture, where defendant had
advance notice of the conditions to be imposed and declined
the express invitation of the judge—before sentence was im-
posed—to voice objections or “requests for further findings or
elaboration”). The government agrees that a limited remand
is needed to modify these conditions. We do too.
A. General Appropriateness of Conditions
First, though, we reject Sainz’s challenge to the need for
and sufficiency of the district court’s findings for all three
challenged conditions. Given the nature of Sainz’s crimes of
transporting and possessing child pornography through use
of a computer and the internet, the general need for re-
strictions on access to sexually explicit materials, contact with
minors, and internet and computer use is so obvious that the
10 No. 15-3585
district judge did not need to explain further than he did. See
United States v. Jones, 798 F.3d 613, 620 (7th Cir. 2015) (deter-
mining that conditions of supervised release are “appropri-
ately tailored … so long as they are warranted by the defend-
ant’s history and characteristics”); United States v. Castaldi, 743
F.3d 589, 594-95 (7th Cir. 2014) (in reviewing sufficiency of
findings and explanations in sentencing, “we try to take care-
ful note of context and the practical realities of a sentencing
hearing”), quoting United States v. Gary, 613 F.3d 706, 709 (7th
Cir. 2010) (sentencing judge “need not belabor the obvious”).
At Sainz’s sentencing hearing, the district judge reviewed
the relevant factors in great detail, including his crimes and
his history and characteristics, and thus satisfied the explana-
tion and consideration requirements of 18 U.S.C. §§ 3553(a)—
(c). Sentencing Tr. at 39-46. Most of those reasons given for the
prison portion of the sentence, including the defendant’s
“grooming” of children in his extended family, obviously ex-
tended to the challenged conditions of supervised release.
The district judge was not required to repeat himself or to be-
labor the obvious.
B. Access to Sexually Explicit Material
One condition will prohibit the defendant from possessing
or controlling “any pornography, sexually oriented or sex-
ually stimulating materials including visual, auditory, tele-
phonic, or electronic media, computer programs or services”
and from patronizing places “where such material or enter-
tainment is available.” The parties agree that this provision
needs to be narrowed for reasons explained at length in Siegel,
753 F.3d 705, 712-13 (7th Cir. 2015). A limited remand will be
sufficient to accomplish the required tailoring consistent with
Siegel.
No. 15-3585 11
C. Contact With Children
Another condition will prohibit the defendant from hav-
ing “contact with any person under the age of 18 except in the
presence of a responsible adult who is aware of the nature of
[Sainz’s] background and current offense and who has been
approved by the probation officer and treatment provider.”
Such conditions that “bar nearly all contact with minors may
be appropriate in certain circumstances.” United States v.
Goodwin, 717 F.3d 511, 524 (7th Cir. 2013). But the parties agree
that this provision needs to be modified to make clear that it
does not prohibit incidental contact with children such as in
ordinary commercial settings. For example, suppose Sainz
wants to buy a hamburger at a restaurant that employs a few
sixteen- and seventeen-year-olds. Doing so could violate this
condition as written. We agree that this provision needs to be
narrowed along the lines we have drawn in other cases, such
as by adding exceptions for commercial business and cases of
incidental or unintentional conduct with minors in general.
Baker, 755 F.3d 515, 526–27 (7th Cir. 2014). We therefore vacate
this condition of Sainz’s supervised release and remand to
modify it consistent with Baker.
D. Paying for Computer Monitoring
The last challenged condition will require the defendant
to comply with a computer and internet monitoring program
administered by the probation office. The court ordered as
part of that condition: “The costs of monitoring shall be paid
by the defendant at the monthly contractual rate.” We said in
Siegel that such a provision should specify that the defend-
ant’s supervised release could not be revoked for mere inabil-
ity to pay since that would amount to imprisonment for debt.
12 No. 15-3585
We told the district court in Siegel to make that explicit on re-
mand. United States v. Siegel, 753 F.3d at 714; see also Baker, 755
F.3d at 529.
If we examine conditions of supervised release in the ab-
stract, years before they will take effect, we can imagine many
possible misunderstandings or mistakes that might be made
in administering them. One such mistake would be revoca-
tion for mere inability to pay, as mentioned in Siegel and Baker.
The speculative possibility that such an issue would arise
would not justify a remand at this time. See, e.g., United States
v. Silvious, 512 F.3d 364, 370-71 (7th Cir. 2008) (error in super-
vised release condition was not plain error because 18 U.S.C.
§ 3583(e) provides means to modify conditions after release).
Since the case must go back to modify the other two condi-
tions, however, the district court should, consistent with Siegel
and Baker, add the caution to this condition on remand.
The district court’s restitution order is AFFIRMED. The
special conditions of supervised release addressing access to
sexually explicit materials, contact with children, and use of
computers and the internet are VACATED and the case is
REMANDED to the district court for the limited purpose of
modifying those conditions in a manner consistent with this
opinion.