United States v. Ricky Funke
2017 U.S. App. LEXIS 1202
8th Cir.2017Background
- Defendant Ricky J. Funke pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252A; he possessed over 600 images/videos, including 21 videos from the “Vicky series.”
- Some images dated back to 2001 and included depictions of rape and bondage; Funke also shared files via BitTorrent.
- Guideline range calculated at 135–168 months; district court denied a downward variance and sentenced Funke to 135 months (bottom of the range).
- Victim “Vicky” sought $27,500 in restitution and attorney fees; the government recommended, and the court ordered, $3,500 restitution.
- Funke appealed both the sentence and the restitution order; the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantive reasonableness of sentence | N/A (government supported guideline sentence) | Funke: court undervalued military service, clean record, long employment and should vary downward | Sentence within guideline range; Funke failed to rebut presumption of reasonableness; no abuse of discretion |
| Whether "costs incurred" under §2259 includes future costs | Vicky: future therapy costs are compensable | Funke: future costs should not be included as "costs incurred" | Court adopts circuit consensus that §2259 allows estimated future losses; restitution may include future therapy costs |
| Proximate causation for restitution under Paroline | Vicky: restitution appropriate for her losses attributable to continuing traffic in images | Funke: his possession does not proximately cause Vicky’s total losses; award must trace to him | Court applied Paroline factors (relative causal role, number of images, distribution, etc.) and found $3,500 reasonable; no abuse of discretion |
| Amount of restitution | Vicky sought $27,500 | Funke: amount excessive given his role | Court found $3,500 consistent with Paroline and comparable Eighth Circuit precedents; affirmed |
Key Cases Cited
- United States v. Paroline, 134 S. Ct. 1710 (2014) (Supreme Court guidance on restitution under §2259 when multiple offenders contribute to victim’s losses)
- United States v. Evans, 802 F.3d 942 (8th Cir. 2015) (standard of review for restitution and example of restitution amounts to same victim)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (presumption of reasonableness for within-guidelines sentences)
- United States v. Scales, 735 F.3d 1048 (8th Cir. 2013) (presumption of reasonableness for guideline sentences)
- United States v. Rogers, 758 F.3d 37 (1st Cir. 2014) (approving restitution for estimated future therapy costs under §2259)
- United States v. Pearson, 570 F.3d 480 (2d Cir. 2009) (future medical expenses recoverable under §2259)
- United States v. Danser, 270 F.3d 451 (7th Cir. 2001) (future counseling expenses compensable under §2259)
- United States v. Beckmann, 786 F.3d 672 (8th Cir. 2015) (affirming similar restitution amount for Vicky where defendant possessed multiple videos)