D.C. No. 4:11-CR-0083-JHP-1, N.D. Okla.
Before KELLY, BALDOCK, and MORITZ, Circuit Judges.
ORDER AND JUDGMENT [*]
Nancy L. Moritz Circuit Judge
Joseph Eddy Benoit appeals the district court's amended judgment sentencing him to eighty months' imprisonment for the receipt of child pornography and awarding the victim $13, 200 in restitution. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Benoit was indicted on charges of receiving and possessing child pornography after police "found over 320 images and approximately eighty videos of child pornography" on his computer. United States v. Benoit, 713 F.3d 1, 7 (10th Cir. 2013) (Benoit I). A jury convicted Benoit on both counts.
At sentencing, the government sought restitution on behalf of the victim, ("Vicky"), depicted in two images and four videos possessed by Benoit. Although Vicky did not appear or testify at the sentencing hearing, her attorney testified Vicky "feels hurt all over again to think that someone . . . is . . . looking at pictures of her" being raped, and that "with the images being out on the Internet and proliferating, that it's an ongoing thing that keeps the original trauma alive and happening over and over and over again." R., Vol. I (Part #1) at 633-34. According to Vicky's attorney, Vicky receives counseling, which she funds partly with restitution awards.
At the conclusion of the hearing, the district court sentenced Benoit to concurrent terms of 125 and 120 months' imprisonment on the receipt and possession counts, respectively, and awarded Vicky $11, 466 in restitution under 18 U.S.C. § 2259. That sum comprised $5, 950 in legal fees and $5, 516 as restitution, the latter of which was calculated by dividing Vicky's total losses ($1, 224, 694.04) by the number of restitution judgments she had received at the time of the hearing (222). See Benoit I, 713 F.3d at 22.
On appeal, this court in Benoit I held Benoit's dual convictions for receipt and possession of child pornography violated double jeopardy, and the court remanded to district court to vacate one of the convictions and the related sentence. Benoit I, 713 F.3d at 18. Regarding restitution, the panel held the government must show "the victim's losses are proximately caused by the defendant's offense, " id. at 20, and the government could not meet this standard simply by showing Benoit "participated in the audience of persons who viewed [Vicky's] images, " id. at 22 (internal quotation marks omitted). Instead, the panel required "specificity" between the victim's losses and the defendant's actions. Id. at 22 & n.8 (criticizing the district court's approach of "dividing a victim's total damages by the number of end-viewers of child pornography" without "factual findings as to whether the number of judgments was approximately equal to the number of end-users or whether Benoit caused approximately the same amount of damages as other end-users"). Thus, the panel additionally remanded the case "for a redetermination of the portion of damages allocable to Benoit, if any." Id. at 22-23.
In the interim between this court's remand and Benoit's resentencing, the Supreme Court decided Paroline v. United States, 134 S.Ct. 1710 (2014). There, the Court held the government must prove proximate cause to recover restitution for the victim under § 2259. Further, the Court offered various factors for determining the restitution amount. Id. at 1722, 1728.
On remand, the district court vacated Benoit's possession count. The revised Presentence Investigation Report (PSR) calculated Benoit's offense level under U.S.S.G. § 2G2.2 as 33, which included, among other things, a two-level enhancement for using a computer to receive child pornography. Because Benoit had no prior criminal convictions, his criminal history fell in category one with a resulting sentencing guidelines range of 135 to 168 months' imprisonment. Further, the PSR indicated the government sought restitution on Vicky's behalf in the amount of $777, 017.67, including $5, 950 for attorney fees.
Benoit objected to the revised PSR, requesting a downward departure and/or a variance to a sentence of no more than 41months. Benoit urged the court to award either no restitution or "no more than the $950" awarded in United States v. Betche, No. 12-CR-102 (N.D. Okla.), another child pornography case involving Vicky. R., Vol. I (Part 1) at 558, 562.
At the resentencing hearing, the district court granted Benoit's request for a variance, in part, decreasing the offense level from 33 to 28. The district court explained its variance, noting "th[e] two level enhancement [for using a computer to receive pornographic images] applies in virtually every case and, thus, fails to differentiate among offenders with respect to their involvement in child pornography communities." R., Vol. IV at 36. Further, the district court observed the lack of evidence showing Benoit had "a history of criminal sexually dangerous behavior or noncriminal sexually deviant behavior suggesting sexual dangerousness." Id. at 37. Finally, the district court indicated it granted a five-level variance based on the 18 U.S.C. § 3553(a) factors, "includ[ing] the nature and circumstances of the offense, the seriousness of the offense, and the need to afford adequate deterrence to criminal conduct." Id. at 36-37. The offense-level variance resulted in a new guidelines range of 78-97 months, and the district court sentenced Benoit to 80 months.
Before awarding restitution of $13, 200, the district court noted its awareness of Paroline and characterized Benoit as "a receiver, viewer, and possessor of [Vicky's] images" whose actions "directly and proximately resulted in [her] losses." R., Vol. IV at 24. The district court also discussed the specific Paroline ...