NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

Nos. 18-3598 and 19-2178 _____________

UNITED STATES OF AMERICA

v.

RICHARD MURPHY, Appellant _____________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 2-18-cr-00349-001) District Judge: Hon. John Michael Vazquez ______________

Submitted Under Third Circuit L.A.R. 34.1(a) October 24, 2019 ______________

Before: GREENAWAY, JR., PORTER and GREENBERG, Circuit Judges.

(Opinion Filed: December 4, 2019) ______________

OPINION * ______________

GREENAWAY, JR., Circuit Judge.

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. This is a consolidated direct criminal appeal. Defendant-Appellant Richard

Murphy pled guilty to production of child pornography in violation of

(a). In his first appeal, Murphy argues that his custodial sentence is both

procedurally and substantively unreasonable and that he should have received a below

Guidelines sentence. In his second appeal, Murphy argues that the District Court’s order

of restitution was unreasonable. We will affirm.

I. BACKGROUND

Murphy was charged with production of child pornography that involved abuse of

his five-year-old stepdaughter. After executing a search warrant, federal agents

discovered that Murphy had a large collection of child pornography, including images

and videos. Murphy admitted that he had sexually abused his stepdaughter, had used his

cell phone to record the abuse, and had distributed those images and videos to others.

Murphy pled guilty to one count of producing child pornography. In his plea

agreement, he agreed to pay restitution to the victims. His advisory Guidelines range was

262 to 327 months’ imprisonment, which reflected a total offense level of 39 and

Criminal History Category I. Murphy’s defense counsel did not object to the calculation,

but he requested a variance to fifteen years’ imprisonment, the statutory mandatory

minimum. His counsel argued that the Guidelines that apply to child pornography

offenses are too severe and that Murphy’s background should mitigate his punishment.

In particular, his counsel highlighted his community contributions, his efforts to

cooperate, and the sexual abuse he had experienced as a child. He also noted that

Murphy had not sought treatment in jail because he feared retribution. The Government

2 opposed the variance request.

The District Court denied Murphy’s request. After considering victim impact

statements and Murphy’s mitigation arguments, as well as the severity of Murphy’s

conduct, the District Court sentenced Murphy to 300 months’ imprisonment followed by

15 years of supervised release.

Because the Government did not have all of the information needed to determine

restitution by the time of the sentencing hearing, the District Court deferred its decision

on restitution for ninety days. The Government then submitted its restitution request for

both Murphy’s production victim and his possession victims. Murphy opposed any order

of restitution because, he contended, he did not have any financial assets and had already

been punished through his custodial sentence and term of supervised release.

The District Court ordered Murphy to pay a total of $285,910 to the victims

($170,910 to the production victim and $115,000 to the possession victims) and

recommended that Murphy participate in the Bureau of Prison’s Inmate Financial

Responsibility Program.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction under

. We

have appellate jurisdiction under

and

(a).

We generally review the procedural and substantive reasonableness of a district

court’s sentence for abuse of discretion. United States v. Handerhan,

(3d Cir. 2014). However, we review alleged procedural errors for plain error if the

defendant failed to preserve the claim by objecting after the error occurred. United States

3 v. Flores-Mejia,

(3d Cir. 2014) (en banc). “We review de novo

whether restitution is permitted by law and the amount of the award for abuse of

discretion.” United States v. Bryant,

(3d Cir. 2011).

III. DISCUSSION

A. The Reasonableness of Murphy’s Custodial Sentence

Murphy argues that his sentence was procedurally and substantively unreasonable

for four reasons: 1) the District Court failed to consider his mitigating circumstances

arguments; 2) at the sentencing hearing the Government argued for a Guidelines sentence

based on cases that it did not cite in its sentencing memorandum; 3) the Guidelines that

apply to child pornography do not have any empirical basis; and 4) the Guidelines

include enhancements that are inherent in the crime itself. We review these claims for

plain error because Murphy did not object after the alleged errors occurred at his

sentencing hearing. See Flores-Mejia,

.

In reviewing whether a sentence is procedurally unreasonable, we consider

whether the district court: 1) correctly calculated the Guidelines range; 2) ruled on any

motions for departures; and 3) considered the § 3553(a) factors, including any requests

for a variance. See United States v. Merced,

(3d Cir. 2010). A

sentence is only substantively unreasonable if “no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district

court provided.” United States v. Tomko,

(3d Cir. 2009) (en banc). “If

the sentence is within the applicable Guidelines range, we may presume that the sentence

is reasonable.” Handerhan, 739 F.3d at 119–20.

4 Murphy’s arguments are unavailing. The transcript of Murphy’s sentencing

hearing reflects that the District Court calculated the Guidelines, weighed the § 3553(a)

factors, and considered Murphy’s request for a variance. The District Court fully

considered all of Murphy’s mitigation arguments on the record. Indeed, the District

Court specifically noted that the mitigating factors bore on its decision not to sentence

Murphy at the statutory maximum: “I know that the family justifiably asked for the

maximum sentence, but I will give as to [sic] the mitigating factors consideration as to

the appropriate sentence.” SA57–58. We do not find that the District Court’s “failure to

give mitigating factors the weight a defendant contends they deserve renders the sentence

unreasonable.” United States v. Bungar,

(3d Cir. 2007).

Nor are we convinced by Murphy’s argument that the Government “ambushed”

him by presenting new case law at the sentencing hearing. 18-3598 Appellant’s Br. 12.

The Government’s sentencing memorandum included the cases that it cited at Murphy’s

sentencing hearing; accordingly, Murphy’s counsel had full notice about these cases and

should have been prepared to respond.

Under the circumstances of this case, we do not find Murphy’s argument that the

child pornography guidelines do not have a sufficient empirical basis compelling. The

District Court was not required to disregard or disagree with the Guidelines. See United

States v. Lopez-Reyes,

(3d Cir. 2009) (holding that the Supreme

Court’s decision in Kimbrough v. United States,

(2007), “does not require a

district court to reject a particular Guidelines range where that court does not, in fact,

have disagreement with the Guideline at issue” and that a district court “is not required to

5 engage in independent analysis of the empirical justifications and deliberative

undertakings that led to a particular Guideline”) (internal quotation marks omitted).

Moreover, as the District Court discussed, the policy arguments that Murphy raises are

applicable to possession, receipt, and distribution of child pornography, not production.

Nor do the cases on which Murphy relies involve production or U.S.S.G. § 2G2.1. See

United States v. Grober,

(3d Cir. 2010) (defendant was sentenced for

transportation, receipt, and possession of child pornography under U.S.S.G. § 2G2.1);

United States v. Dorvee,

(2d Cir. 2010) (defendant was sentenced for

distribution of child pornography under U.S.S.G. § 2G2.2).

Murphy’s argument that his sentence was excessively harsh because the

sentencing enhancements that he received would apply to anyone who violates

(a) is similarly meritless. Murphy disputes two of the sentencing enhancements.

First, he challenges the enhancement that he received under U.S.S.G. § 2G2.1(b)(2)(A))

because the offense involved the commission of a sexual act. Second, he challenges the

enhancement that he received under U.S.S.G. § 2G2.1(b)(3) because he knowingly

engaged in distribution. He argues that both enhancements are “inherent” to violations of

(a) because they would apply to anyone who violates the statute. 18-

3598 Appellant’s Br. 23.

We disagree. Section 2251(a) does not specifically require commission of a

sexual act between the victim and another person; rather, it requires “sexually explicit

conduct.” This may be a sexual act, but it may also be the “lascivious exhibition of the

anus, genitals, or pubic area of any person.”

(2)(A)(v); see, e.g., United

6 States v. Larkin,

(3d Cir. 2010) (holding that two photographs of a

nude five-year-old girl met the definition of “lascivious exhibition” to support a violation

of § 2251(a)). Accordingly, it is possible to violate

(a) without

engaging in the commission of a sexual act.

Further, § 2251(a) does not require that the defendant personally distribute child

pornography. Rather, it requires that the defendant know or have reason to know that the

depictions will be distributed or that the depictions have been produced or transmitted

through interstate commerce. Specifically, a defendant violates § 2251(a) if he:

knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

(a). Accordingly, a defendant may violate § 2251(a) without personally

engaging in the distribution of child pornography.

Although the District Court could have granted Murphy’s request for a variance, it

was under no obligation to do so. We do not fault this decision; the crime that Murphy

committed was extremely serious and the District Court sentenced him within the

Guidelines range. As the District Court noted, “[t]here’s very few cases that are more

serious behavior than involved in this one.” We thus find no procedural or substantive

error in the District Court’s sentencing.

7 B. The Reasonableness of Murphy’s Order of Restitution

Murphy also argues that he should not have been ordered to pay restitution

because he does not have any financial resources and has already been punished through

his custodial sentence and term of supervised release. 1 Notably, before the District Court

Murphy did not dispute any of the evidence or calculations that the District Court used to

reach its restitution order; in fact, he specifically said that he “cannot go through each and

every request.” App. 200. He only made an objection to the restitution order as a whole.

On appeal, however, Murphy raises additional challenges to the restitution order.

He argues that: 1) he cannot pay because he does not have a job; 2) that one of the

victim’s restitution requests did not have an empirical basis; and 3) that it will be harmful

to his victims if he continues to make payments long into the future.

We do not find any of these arguments convincing. Murphy specifically agreed to

pay restitution in his plea agreement. Moreover, restitution is mandatory under

: “The issuance of a restitution order under this section is mandatory.”

(b)(4)(A). In particular, “[a] court may not decline to issue an order under this

section because of—(i) the economic circumstances of the defendant.”

(b)(4)(B)(i). The court must order the defendant to pay “the full amount of the

1 On this claim, there is some question as to whether Murphy timely appealed the District Court’s restitution order. However, the Government has agreed to waive any objection based on timeliness so that we may decide Murphy’s claim on the merits. We will do so. See Virgin Islands v. Martinez,

, 327–28 (3d Cir. 2010) (noting that “[b]ecause Rule 4(b) is not grounded in statute . . . we are not deprived of appellate jurisdiction if a party fails to invoke the rule properly upon an untimely notice of appeal”). 8 victim’s losses,” including medical services, therapy, transportation, housing, and child

care expenses, lost income, attorneys’ fees, and “any other relevant losses.”

(b)(2)(A);

(c)(2). Accordingly, Murphy’s argument that he

should not be required to pay restitution because he does not have any money is

unavailing.

Since Murphy failed to challenge the District Court’s process for arriving at the

restitution, we review for plain error. Section 2259 requires the district court to award

“the full amount of the victim’s losses suffered as a proximate result of the offense.”

United States v. Crandon,

(3d Cir. 1999). The government must prove

the amount of the victim’s loss by a preponderance of the evidence.

. A district

court need not use precise empirical analysis to reach a restitution amount; as the

Supreme Court has held, “[t]his cannot be a precise mathematical inquiry and involves

the use of discretion and sound judgment.” Paroline v. United States,

(2014).

Murphy argues that the District Court should not have relied on the restitution

request submitted by the family of his production victim because it did not have any

empirical basis. According to the Government, the family requested more than a million

dollars for present and future therapy needs and lost wages even though they did not have

the assistance of a forensic psychiatrist or legal counsel to reach this number. But the

record belies Murphy’s assertion that the District Court “embrace[d] this fictitious

number.” 19-2178 Appellant’s Br. 8. The Government provided sufficient evidence to

“demonstrate[] the amount of the loss sustained” as a result of Murphy’s conduct,

9 including a letter from the victim’s therapist and her mother’s employer.

(e). Murphy has not disputed these letters or offered any other evidence. The

District Court reached its restitution order based specifically on the evidence of the

victim’s loss: instead of more than a million dollars, the District Court awarded the

production victim $170,910.

Finally, there is no basis whatsoever in the case law or statutes for Murphy’s

argument that restitution will harm his victims. We see no error in the District Court’s

restitution award.

IV. CONCLUSION

For the reasons set forth above, we will affirm.

10