United States v. Ephraim Aguirre Ii

with whom Judges TALLMAN and N.R. SMITH join, specially concurring:

Our review of the restitution order is controlled by United States v. Kennedy, 643 F.3d 1251, 1263-64 (9th Cir.2011), but if I were writing on a blank slate, I would affirm because $3,000 is a reasonable assessment of the victims’ losses attributable to Aguirre’s offense.

As the district court indicated here, and we noted in Kennedy , it is difficult to determine the extent to which a defendant’s possession of Amy’s and Vicky’s images can be said to have proximately caused their trauma and need for counseling because countless individuals, most of whom will never be discovered, have contributed to their need for lifetime counseling by exchanging their images. In Kennedy , we focused on the government’s failure to establish that Amy and Vicky needed additional counseling after finding out that the defendant possessed their images. Id. at 1263-64, 1264-65 . In my view, this focus sets too narrow of a causation standard in light of the law’s approach to issues of concurrent independent causes, as well as Congress’s intent to fully compensate victims of child pornography.

In general, courts have recognized that…

MEMORANDUM ***

Ephraim Aguirre, II, appeals his sentence and an order of restitution following his guilty plea to two counts of receiving or distributing child pornography in violation *672 of 18 U.S.C. § 2252 (a)(2). We have jurisdiction under 18 U.S.C. § 8742 and 28 U.S.C. § 1291 . We affirm Aguirre’s sentence. However, we vacate and remand the order of restitution because, under the standard articulated in United States v. Kennedy, 648 F.3d 1251 , 1263-64 (9th Cir.2011), the government failed to carry its burden of proving by a preponderance of the evidence that Aguirre’s offense proximately caused $3,000 in losses to the victims Amy and Vicky.

On appeal, Aguirre raises challenges to a five-level sentencing enhancement applied to him, the overall length of his sentence in light of the § 3553(a) factors, and the restitution ordered. We review the sentence imposed by the district court for an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). We review the legal basis for the restitution order de novo. United States v. Laney, 189 F.3d 954, 964-65, 966 (9th Cir.1999).

1. Aguirre challenges the district court’s imposition of a five-level…

FILED

NOT FOR PUBLICATION AUG 18 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10175

Plaintiff - Appellee, D.C. No. 1:08-cr-00434-AWI-

v.

MEMORANDUM *

EPHRAIM JOE AGUIRRE, II,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding

Submitted February 16, 2011** San Francisco, California

Before: TALLMAN, CALLAHAN, and N.R. SMITH ***, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** Due to the death of the Honorable David R. Thompson, the Honorable N. Randy Smith, United States Circuit Judge for the Ninth Circuit, has been drawn to replace him on this panel. Judge N.R. Smith has read the briefs and reviewed the record. Ephraim Aguirre, II, appeals his sentence and an order of…