11-3421-cr
United States v. Hagerman

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of December, two thousand twelve.

Present:
         JOHN M. WALKER, JR.,
         ROBERT A. KATZMANN,
         DEBRA ANN LIVINGSTON,
                     Circuit Judges,
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 11-3421-cr

PAUL HAGERMAN,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:         MOLLY CORBETT, Research and Writing Specialist, (Gene V.
                                 Primomo, Assistant Federal Public Defender, Lisa Peebles,
                                 Interim Federal Public Defender, of counsel), Federal Public
                                 Defender Office, Albany, N.Y.

For Appellee:                    RICHARD FRIEDMAN, Appellate Section, Criminal Division,
                                 United States Department of Justice, Washington, D.C.
                                  (Tamara Thomson, Assistant United States Attorney, Northern
                                  District of New York, on the brief), for Richard S. Hartunian,
                                  United States Attorney for the Northern District of New York,
                                  Gregory D. Andres, Acting Deputy Assistant Attorney
                                  General, and Lanny A. Breuer, Assistant Attorney General,
                                  Criminal Division, United States Department of Justice.


Appeal from the United States District Court for the Northern District of New York (Suddaby,
J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment and order of the district court be and hereby are AFFIRMED in

part, REVERSED in part, and REMANDED.

       Defendant-Appellant Paul Hagerman appeals from a judgment and a post-judgment

restitution order of the United States District Court for the Northern District of New York

(Suddaby, J.), convicting him, following his guilty plea, of one count of receiving child

pornography and one count of possessing child pornography, in violation of 18 U.S.C. §§

2252A(a)(2)(A) & (a)(5)(B). On August 17, 2011, the district court imposed a Guidelines

sentence of ninety-seven months’ imprisonment, a life term of supervised release, and a special

assessment of $200. On November 30, 2011, the district court entered a post-judgment order

holding the defendant jointly and severally liable to the victim for $975,917.64 in restitution,

pursuant to 18 U.S.C. § 2259. On appeal, Hagerman contends that his sentence is procedurally

unreasonable because the district court offered only a limited explanation for its sentence, and

substantively unreasonable because it fails to take into account his personal circumstances.

Hagerman also contends that the order of restitution is unlawful because: (1) Hagerman’s

possession of the pornography did not proximately cause the victim’s harm; (2) the monetary

harm the district court attributed to Hagerman’s conduct is too high; (3) he cannot be held jointly

                                                 2
and severally liable for all of the harm suffered by the victim; and (4) the district court failed to

consider his financial ability to pay the restitution award and set an appropriate payment

schedule. We presume the parties’ familiarity with the underlying facts and procedural history

of this case as well as with the issues on appeal.

       We review a district court’s sentence for “reasonableness, which is ‘akin to review for

abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds

of allowable discretion, committed an error of law in the course of exercising discretion, or made

a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)

(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). “A district

court commits procedural error where it fails to calculate the Guidelines range (unless omission

of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the

Guidelines as mandatory,” “does not consider the [sentencing] factors” set out in 18 U.S.C. §

3553(a), “rests its sentence on a clearly erroneous finding of fact,” or “fails adequately to explain

its chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).

Where the Court determines that there was no procedural error in a district court’s sentencing, it

“then considers the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard, taking into account the totality of the circumstances.” United

States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009) (internal quotation marks omitted). Although

we do not presume that a sentence within the Guidelines range is reasonable, United States v.

Dorvee, 616 F.3d 174, 182 (2d Cir. 2010), a district court’s substantive findings will be set aside

only “in exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions,” Cavera, 550 F.3d at 189 (internal quotation marks omitted).


                                                     3
       Hagerman contends that the district court’s imposition of a 97-month term of

imprisonment is procedurally unreasonable because the court offered a very limited explanation

for its sentence. We disagree. Although the district court did not offer a lengthy explanation for

its sentence, viewing the transcript in context, the district court provided a reasoned justification.

Before pronouncing its sentence, the district court noted that it had reviewed and considered all

of the information provided to it, and adopted the factual information contained in the

Presentence Report. The court then sentenced Hagerman to 97 months’ imprisonment,

concluding this was “sufficient but not greater than necessary to satisfy the requirements of

justice in this case.” App’x 76–77.

       Immediately after announcing the sentence, the district court also found that the

defendant “need[ed] extensive mental health treatment,” noting that although Hagerman “ha[d]

been victimized himself,” “the need for non-disparate treatment in these types of cases, [together

with] . . . the number of images, the violent nature of the images,” and that the defendant

transported the images on a handheld device, were “all indications of a severe problem that

needs addressing.” Id. at 77. These specific factors were mentioned in connection with the

court’s recommendation that Hagerman participate in mental health and sex offender treatment

while in prison, but they also demonstrate that the district court considered the factors outlined in

§ 3553(a) in fashioning its sentence. For example, the district court’s mention of “the need for

non-disparate treatment in these types of cases,” is a reference to § 3553(a)(6), which sets forth

“the need to avoid unwarranted sentencing disparities among defendants with similar records

who have been found guilty of similar conduct.” This reference identifies the court’s reasoning

for the length of the sentence and does not relate to whether Hagerman could benefit from


                                                  4
mental health and sex offender treatment. Although the district court cannot fashion a sentence

“to promote an offender’s rehabilitation,” Tapia v. United States, --- U.S. ----, 131 S. Ct. 2382,

2391 (2011), we have held that it is not procedurally unreasonable for a court to discuss

rehabilitation in the course of issuing its sentence, so long as the length of the sentence is based

on permissible considerations. See United States v. Gilliard, 671 F.3d 255, 259 (2d Cir. 2012).

Here, in discussing the violent nature of the photographs and the need to avoid unwarranted

sentencing disparities, balancing those factors against Hagerman’s own history of abuse, the

district court gave sufficiently specific “reasons . . . for its chosen sentence.” United States v.

Echeverri, 460 F. App’x 54, 56 (2d Cir. 2012) (summary order) (holding sentence procedurally

unreasonable where district court’s only explanation for sentence was that the “low end” of the

Guidelines range was “sufficient but not greater than necessary” to satisfy § 3553(a)). There is

no “requirement that a sentencing judge precisely identify either the factors set forth in § 3553(a)

or [respond to] specific arguments bearing on the implementation of those factors in order to

comply with [his] duty to consider all the § 3553(a) factors,” United States v. Fernandez, 443

F.3d 19, 29 (2d Cir. 2006) (emphasis omitted), and we conclude that the district court has

sufficiently discharged its duty here.

       Hagerman also argues that the district court’s sentence was substantively unreasonable in

light of his offense characteristics and personal background. In particular, Hagerman notes that

he has no prior criminal history, that he is the victim of sexual abuse, that he has never sexually

abused a minor, and that a psychological assessment concluded that he poses only a low to

moderate risk of reoffending. See, e.g., Dorvee, 616 F.3d at 183-84 (reversing statutory

maximum sentence of 240 months where district court presumed reasonableness based on a


                                                  5
Guidelines range above the statutory maximum and speculated that defendant was at high risk of

re-offending). We do not find this argument persuasive, as this is not an “exceptional case[]

where the trial court’s decision cannot be located within the range of permissible decisions.”

Cavera, 550 F.3d at 189 (emphasis added); see also United States v. Gouse, 468 F. App’x 75, 78

(2d Cir. 2012) (summary order) (affirming as substantively reasonable a 120-month sentence for

child pornography possession, where there was no evidence that defendant had ever had

inappropriate contact with a minor, or had distributed child pornography); United States v.

Magner, 455 F. App’x 131, 134-35 (2d Cir. 2012) (summary order) (affirming 108-month

sentence in same circumstances). Moreover, unlike Dorvee, Hagerman was not sentenced to the

240-month statutory maximum, nor did the district court speculate in considering his likelihood

of reoffending. See, e.g., United States v. Aumais, 656 F.3d 147, 149 & 157 (2d Cir. 2011)

(affirming 121-month sentence, and noting that, unlike in Dorvee, the district court's sentence

was “well short of the statutory maximum”); United States v. Henchey, 443 F. App’x 617,

619-620 (2d Cir. 2011) (summary order) (affirming as substantively reasonable a 120-month

sentence for possessing and receiving child pornography for defendant with no past

inappropriate contact with minors, and distinguishing Dorvee on the ground that the sentence

was “well below . . . the statutory maximum”). Accordingly, we do not conclude that

Hagerman’s sentence was substantively unreasonable.

       Next, Hagerman objects to the district court’s restitution order on multiple grounds.

First, Hagerman contends that the district court erred in concluding that he proximately caused a

portion of Vicky’s harms. We disagree. In our decision in Aumais, we joined the majority of

our sister circuits in holding that where an individual depicted in child pornography seeks


                                                6
restitution from a defendant who has been convicted for possessing that pornography, the

victim’s losses “must be proximately caused by the defendant’s offense.” Aumais, 656 F.3d at

153. That standard has been met here. The district court reasonably found that Vicky had actual

knowledge of Hagerman’s offense conduct as her representative had informed her of this action,

and that her knowledge that Hagerman was among those who had downloaded her picture had

caused her actual and ongoing psychological harm, as demonstrated in her victim impact

statement and psychological evaluations. See United States v. Kearney, 672 F.3d 81, 99–100

(1st Cir. 2012) (holding proximate cause satisfied where victim submitted evidence of notice and

harm).

         Hagerman also objects to the district court’s determination of the amount of restitution

attributable to his conduct. Although the district court determined that Hagerman proximately

caused only $6,636.24 of Vicky’s recoverable losses, the district court nevertheless held

Hagerman jointly and severally liable for all $975,917.64 of those losses. Both parties agree that

the imposition of joint and several liability was improper in the circumstances of this case. We

also agree. In Aumais, we held that the wording of “[s]ection 3664(h) implies that joint and

several liability may be imposed only when a single district judge is dealing with multiple

defendants in a single case” and “does not contemplate apportionment of liability among

defendants in different cases, before different judges, in different jurisdictions around the

country.” Aumais, 656 F.3d at 156. The district court’s imposition of joint and severally

liability in this single action against Hagerman is squarely foreclosed by Aumais.1


         1
         The district court’s opinion argues that Aumais and the cases on which it relied were
wrongly decided. It is well-established, however, that a panel of this Court does not have the
authority to overrule a precedent set by a prior panel. See, e.g., United States v. Minaya, 321 F.

                                                  7
       We hold that Hagerman should only be responsible for the losses that he proximately

caused. The district court determined that Hagerman, as one of approximately 146 defendants

successfully prosecuted for the unlawful possession of child pornography featuring Vicky,

contributed to 1/146 or 0.68% of the harm she sustained from the downloading of her images

from the Internet. The district court also found that the harm caused her to suffer total economic

losses of $1,224,697.04, of which $248,779.40 had been collected through restitution payments

from other defendants, leaving $975,917.65 unpaid and recoverable. Then the district court

applied the percentage of harm caused by Hagerman to the unpaid loss balance to find Hagerman

as having proximately caused $6,636.24 of Vicky’s unpaid losses. We find this approach to

determining the proximate loss amount, on a per capita basis, to be reasonable but misapplied in

the actual calculation. Since a total of 146 individuals generated a total of $1,224.697.04 in

losses, Hagerman’s share should be 1/146 of that total or $8,388.31. The district court’s

calculation overlooks the fact that some of the 146 defendants had already paid their restitution

to the victim and cannot be counted on to make further contributions toward the unpaid loss

balance. Counting them among the remaining contributors improperly reduced Hagerman’s

share of the burden.

       Hagerman next contends that the district court abused its discretion in declining his

request to hold an evidentiary hearing to resolve certain issues related to the court's restitution

award. We have observed that:

       [I]n the context of contested issues regarding the propriety of a restitution award, . . . the
       sentencing procedures employed to resolve such disputes are within the district court's
       discretion so long as the defendant is given an adequate opportunity to present his



App’x 37, 42 (2d Cir. 2009) (summary order).

                                                  8
       position[.] The district court is not required, by either the Due Process Clause or the
       federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving
       sentencing disputes. All that is required is that the court afford the defendant some
       opportunity to rebut the Government's allegations.

United States v. Sabhnani, 599 F.3d 215, 257-258 (2d Cir. 2010) (internal quotation marks and

alterations omitted). Pursuant to 18 U.S.C. § 3664(d)(5), so long as the victim’s losses are

ascertainable at least ten days before sentencing, and the documents supporting the victim’s

losses are provided to the defendant within this time-frame, the district court may decide

restitution at the sentencing hearing without holding a separate evidentiary hearing. See also

Fed. R. Crim P. 32(i)(2) (“The court may permit the parties to introduce evidence on the

[parties’] objections [to the probation officer’s presentence report].” (emphasis added)). As

such, at the sentencing phase of a criminal proceeding, a defendant has no right to “a hearing at

which to cross-examine his victims.” United States v. Morrison, 153 F.3d 34, 54 (2d Cir. 1998).

       Here, Hagerman contends that the exhibits submitted by the government and Vicky in

support of a restitution award are not “reliable and accurate” because they are “unsworn” and are

based on information “non-specific to Mr. Hagerman.” Pet’r’s Br. 48 (citing United States v.

Pugliese, 805 F.2d 1117, 1124 (2d Cir. 1986) (sentencing court has “due process obligations . . .

to consider only reliable and accurate information”)). Further, Hagerman requested a hearing to

determine: (1) whether he actually viewed the images of Vicky, (2) whether his offense conduct

proximately caused Vicky’s harms, (3) what portion of the damages should be attributed to (a)

Vicky’s biological father, who sexually abused Vicky and distributed images of the abuse on the

internet, (b) others that viewed the images, and (c) those viewers of the images who have sought

to contact Vicky, and (4) what amount of counseling Vicky is entitled to. Hagerman thus

contends that he “objected . . . with specificity” to Vicky’s and the government’s submissions

                                                9
prior to sentencing, and that, accordingly, the statements made in those submissions cannot be

relied upon unless substantiated by “sworn testimony subject to cross-examination.”

       We disagree that any further corroboration through an evidentiary hearing was required

here. As an initial manner, § 3664 expressly provides that “[n]o victim shall be required to

participate in any phase of a restitution order.” 18 U.S.C. § 3664(g)(1); see also United States v.

Fatico, 579 F.2d 707, 713 (2d Cir. 1978) (“Due process does not prevent use in sentencing of

out-of-court declarations” by a person whose true identity is not disclosed “where there is good

cause for the nondisclosure of [her] identity and there is sufficient corroboration by other

means.”). The district court had determined by a preponderance of the evidence after careful

review of the records submitted by the government that Vicky’s re-victimization by those who

downloaded her images from the Internet was responsible for all of her recoverable losses. This

is because she was recovering through therapy from her original abuse when she learned that her

images were being distributed on the Internet. It was this startling discovery that “threw her

world into chaos” and continues to haunt her even as she is now secure in her knowledge that her

original perpetrator is in prison and cannot harm her again. The district court was persuaded by

Vicky’s psychological reports and victim impact statements that her ongoing suffering is nearly

exclusively the result of her re-victimization.

       Hagerman does not rebut these findings. More broadly, despite ample opportunity,

Hagerman has never once indicated what evidence he would submit, or testimony he would

elicit, at a restitution hearing. He has remained silent throughout, including: (a) his July 22,

2011 sentencing memorandum, submitted in anticipation of the sentencing hearing; (b) his

counsel’s opportunity at the sentencing hearing to object to the PSR, which stated that the “net


                                                  10
amount of economic losses” suffered by Vicky for restitution purposes is “$975,917.64,” PSR ¶

13; see App’x 76 (no objection when the district court expressly adopted all “the factual

information contained in the Presentence Report”); (c) the two months in between the August 17

sentencing hearing and the district court’s November 30 restitution order, during which time

Hagerman submitted nothing to the court relevant to restitution; and (d) his brief in the instant

appeal, see Pet’r’s Br. 50-53.

       Moreover, many of the issues identified by Hagerman as needing to be further developed

at a hearing are purely legal, not factual. Specifically, in contending that a hearing is necessary

to resolve issues of causation — i.e., whether Hagerman proximately caused Vicky’s harm, and

if so, how damages should be apportioned between the various perpetrators who caused Vicky

harm — Hagerman does not identify any underlying unresolved factual disputes relating to these

issues. Further, as to the issues not relating to causation, Hagerman did not proffer any evidence

indicating that he had a fact-based disagreement with the information contained in Vicky’s

submissions. In other words, Hagerman did not indicate that he would testify that he had not

actually viewed the images, nor did he indicate that he had a fact-based objection to the forensic

accounting of the monetary harm Vicky has suffered as a result of her victimization.

       Because Hagerman failed to proffer any evidence he would offer at a restitution hearing,

and because he failed to identify any factual issues susceptible to resolution at a hearing, we

conclude that the district court did not abuse its discretion in ordering restitution based on the

parties’ submissions alone. See United States v. Pierre, 285 F. App’x 828, 829 (2d Cir. 2008)

(summary order) (holding the “District Court did not abuse its discretion in choosing not to hold

a hearing before ordering restitution in the amount of $618,312” where it gave defendant “the


                                                 11
opportunity to challenge the restitution amount” (internal quotation marks omitted)); United

States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (“All [the process] that is required [to award

restitution] is that the court afford the defendant some opportunity to rebut the Government's

allegations.” (internal quotation marks omitted)); see also United States v. Payne, 125 F.3d 845,

1997 WL 609128, at *4 (2d Cir. Oct. 3, 1997) (summary order) (holding no abuse of discretion

in denying request for restitution hearing where “the district court afforded the appellant ample

opportunity to object to the loss figures in the PSR and to present evidence in support of his

position”).

       Finally, Hagerman contends that remand is necessary because the district court failed to

consider his ability to pay restitution, and did not determine whether restitution would be

payable immediately or according to a schedule of payments. Although the district cannot

consider ability to pay in determining the amount of any restitution award, 18 U.S.C. §§

2259(b)(4)(B), 3664(f)(1)(A), the court is obligated to set the defendant’s restitution payment

schedule “in consideration of . . . the financial resources and other assets of the defendant,” 18

U.S.C. § 3664(f)(2); see United States v. Lucien, 347 F.3d 45, 53 (2d Cir. 2003) (“[T]he record

must disclose some affirmative act or statement allowing an inference that [in determining the

schedule of payments] the district court in fact considered the defendant's ability to pay.”

(internal quotation marks omitted)). The district court here already recognized that it neglected

to set a payment schedule, and sought leave from this Court to correct its mistake after

Hagerman filed his noticed of appeal. Since we reverse on the ground that the district court

incorrectly calculated the amount of harm attributable to Hagerman, however, there is no need to

grant the district court’s request for leave to correct the order. When the district court


                                                 12
reconsiders the appropriate calculation of the restitution owed by the defendant on remand, the

district court should also consider the defendant’s financial circumstances in setting a restitution

payment schedule that accords with the “interest of justice.” 18 U.S.C. § 3572(d)(1).

       Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED, the restitution order is REVERSED, and the case is REMANDED for further

proceedings consistent with this Order.


                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




                                                 13
