Submitted: May 13, 2019
from United States District Court for the Western District of
Arkansas - Texarkana Division
BENTON, WOLLMAN, and GRASZ, Circuit Judges.
Thomas appeals the sentence the district court imposed after
he pled guilty to two counts of receipt of child pornography
in violation of 18 U.S.C. § 2252(a)(2), (b)(1). We
vacate the award of restitution but grant the
government's motion to dismiss the remainder of the
part of his guilty plea, Thomas entered into a plea agreement
that contained an appeal waiver. In the agreement, Thomas
"reserve[d] the right to appeal from a sentence which
exceeds the statutory maximum" but otherwise waived the
right to appeal his sentence, including the restitution
Thomas apparently abused victims for some time, his crimes of
conviction do not account for most of that conduct. In
particular, he received images from and had a
"relationship" with one minor victim for most of
2014, but his only conviction from all of his conduct with
that particular victim was for receiving a sexually explicit
image directly from her on October 30, 2014.
sentencing, the district court imposed two prison sentences
of 180 months, each to run consecutively, for Thomas's
possession of two images of child pornography in October and
December 2014, respectively. The district court ordered
restitution for the October victim's psychological
treatment that occurred six months before the charged conduct
occurred, in April 2014. Thomas appeals the restitution order
and the prison sentence. The government filed a motion to
dismiss Thomas's appeal based on the appeal waiver.
conclude the restitution order in this case survives the
appeal waiver because the order is not authorized by the
statute. We allow appeals of illegal sentences to prevent a
miscarriage of justice. United States v. Andis, 333
F.3d 886, 891-92 (8th Cir. 2003) (en banc).
types of restitution orders could be legal here. The
restitution statute relevant to this case provides for
restitution of all of a victim's losses proximately
caused by the defendant's crimes of conviction. 18 U.S.C.
§ 2259(c). See Paroline v. United States, 572
U.S. 434, 445 (2014) (explaining "§ 2259 is
intended to compensate victims for losses caused by
the offense of conviction" (emphasis added)). An award
of restitution under this statute can also account for the
defendant's contribution to the "continuing and
grievous harm" of reproducing, distributing, or
possessing child pornography depicting the victim. United
States v. Beckmann, 786 F.3d 672, 682 (8th Cir. 2015)
(quoting Paroline, 572 U.S. at 457).
no evidence that either situation applies here. A
victim's counseling expenses typically cannot be
proximately caused by images first obtained six months
after the counseling. See United States v.
Rogers, 758 F.3d 37, 39 (1st Cir. 2014) (affirming an
award of restitution that "excluded past costs and based
its award on an estimate of [the victim's] future therapy
costs, occasioned by defendant's conduct");
United States v. Gamble, 709 F.3d 541, 554 (6th Cir.
2013) ("As a logical matter, a defendant generally
cannot cause harm prior to the date of his offense.").
Here, it appears the treatment expense in the restitution
order arises from Thomas's unconvicted earlier sexual
conduct with the victim in the October image. The restitution
order could account for Thomas's relevant unconvicted
conduct that occurred before the offense of
conviction-including his role in the production of the
pornographic image-but only if it sought to compensate the
victim for losses caused by the particular offense of
conviction. See Paroline, 572 U.S. at 459-60
("There are a variety of factors district courts might
consider in determining a proper amount of restitution,"
including "whether the defendant had any connection to
the initial production of the images."). However, the
record here shows that the restitution order sought to
compensate solely for losses occurring before the offense of
conviction. Additionally, the record does not indicate Thomas
contributed to any continuing distribution. Thus, the
restitution order in this case is an illegal order.
review of the remainder of Thomas's appeal, we conclude
the prison sentence is within the scope of the appeal waiver.
No provision in the waiver allows Thomas to appeal a sentence
within statutory limits. We also see no miscarriage of
justice in his prison sentence on this record. Thus, we grant
the government's motion to dismiss as to the portion of
the appeal addressing Thomas's prison sentence.
troubled that Thomas continues to show no remorse for his
victims, including refusal to pay for a victim's
counseling, but that is not a sufficient basis to impose
restitution without authorization by statute. We vacate the
order of ...