UNITED STATES of America, Appellee, v. Brian K. ROGERS, Defendant, Appellant.
No. 12-1639.
United States Court of Appeals, First Circuit.
July 2, 2014.
37-40
Although petitioner, in his motion, never asserted that his fear of persecution was not confined to the Swat Valley region or addressed relocation at all, he argues that the BIA “improperly” assumed that his fear of persecution is confined to the Swat Valley region. Not so. None of the evidence that accompanied the motion to reopen even addressed the internal relocation issue. See Abdullah v. Gonzales, 461 F.3d 92, 101 (1st Cir. 2006) (affirming denial of motion to reopen where petitioner‘s motion was not accompanied by any new evidence on the lack of feasibility of relocating elsewhere in Pakistan).
In fact, the only evidence petitioner offers in support of this argument was not presented to the BIA: the 2012 U.S. Department of State Country Report on Pakistan. Put simply, the BIA could not have, as petitioner argues, abused its discretion in overlooking details of the Country Report where the report was not even in the administrative record. Further, we reject petitioner‘s request for us to take judicial notice of the information contained in the Country Report, as it was “neither introduced into the record nor included in support” of the motion to reopen. Hussain v. Holder, 576 F.3d 54, 58 (1st Cir. 2009); see also
We likewise do not consider petitioner‘s argument, also presented for the first time to this court, that the BIA should have considered sua sponte whether the allegations of persecution by the Taliban were in fact government-sponsored. We have consistently held that “arguments not raised before the BIA are waived due to a failure to exhaust administrative remedies.” Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007). Petitioner cannot rescue his motion to reopen by introducing new evidence and new arguments for the first time before this court.
The petition for review is denied as to those arguments presented to the agency. It is otherwise dismissed for lack of jurisdiction.
Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee.
Before LYNCH, Chief Judge, STAHL and THOMPSON, Circuit Judges.
PER CURIAM.
Following his conviction for possession of child pornography, defendant Brian Rogers appealed both his conviction and the district court‘s restitution order requir
Paroline concerned the methodology to be used by the district courts for crafting restitution orders, and confirmed such awards were to be made in the exercise of the court‘s “discretion and sound judgment.” 134 S.Ct. at 1728. It did not change any of the standards relevant to defendant‘s underlying conviction, and defendant does not so argue. We adopt our prior reasoning as to defendant‘s conviction. See Rogers, 714 F.3d at 86-88.
We also affirm the district court‘s restitution order. We review restitution orders for abuse of discretion. United States v. Kearney, 672 F.3d 81, 91 (1st Cir. 2012). Although the district court did not have the benefit of Paroline at the time it made its decision, we conclude, applying Paroline, that the order is not an abuse of discretion. Paroline requires district courts to “determine the amount of the victim‘s losses caused by the continuing traffic in the victim‘s images ..., then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant‘s conduct in producing those losses.” 134 S.Ct. at 1728. Those factors include:
the number of past criminal defendants found to have contributed to the victim‘s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim‘s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant‘s relative causal role.
The district court‘s decision comports with these instructions. The court considered a chart submitted by the government showing the individual amounts of restitution orders to Vicky that had been entered in past cases. The district court excluded past costs and based its award on an estimate of Vicky‘s future therapy costs, occasioned by defendant‘s conduct. It first limited the losses to general losses from “continuing” traffic in Vicky‘s images from the period when defendant had viewed them. It then distinguished the future therapy losses attributable to defendant from the harm resulting from other viewers and from Vicky‘s therapy needs relating to her father and the difficulty of her relationships with male friends. The court further considered the fact that several other defendants had been sentenced and ordered to pay restitution for possessing images of Vicky, and that defendant viewed the images and may also have shared them through a file sharing program. The court commented that it would select a restitution figure representing the cost of 18 therapy visits, but noted that 50 visits would also have been a reasonable conclusion. The court picked a figure at
This order certainly was not an abuse of discretion in light of Paroline. Consequently, we affirm the district court‘s restitution order.
So ordered.