*3 FISHER, Circuit Judge:
Steven Grovo, Joshua Petersen and 11 others from around the United States were indicted for their roles in Kingdom of Future Dreams (KOFD), an online bulletin board dedicated to discussing and exchanging child pornography. Although the other 11 defendants entered plea agreements in separate cases, Grovo and Petersen proceeded to a bench trial on two counts: a charge of engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) and a charge of conspiracy to advertise child pornography under 18 U.S.C. § 2251(d). [1] They were convicted on both counts.
*4 Grovo and Petersen both challenge aspects of their convictions, and Grovo challenges his sentence. Only three of their grounds for appeal merit discussion here. First, Grovo and Petersen argue the government failed to provе they acted “in concert with three or more other persons” when they participated in posting or exchanging child pornography on KOFD’s message boards. See § 2252A(g). Second, both argue the evidence introduced at trial does not prove they knowingly made, printed or published any “advertisement seeking or offering . . . to receive, exchange, buy, produce, display, distribute, or reproduce” child pornography, see § 2251(d)(1), because their posts on KOFD were not “advertisements” to the public at large, but were instead [1] All statutory citations are to title 18 of the United States Code unless otherwise indicated. For the reasons stated in a concurrently filed memorandum disposition,
we reject the defendants’ other arguments.
visible only to other KOFD members. Finally, Grovo challenges the district court’s restitution order, arguing the court erred in apportioning restitution.
We affirm both defendants’ convictions. Because the
district court did not have the benefit of our decision in
United States v. Galan
,
I. BACKGROUND
Grovo’s and Petersen’s convictions arise from their involvement in KOFD, an invitation-only online message board for sharing child pornography and non-pornographic images of children. Individuals could join KOFD only after they were referred by an existing member and the site administrators and other volunteer staff determined they could be trusted. Once members were accepted to the message board, they were able to post in various “rooms” focusing on particular types of content. Members could share files either by posting them directly to a new or existing “thread” in a particular room, or, more commonly, by posting a preview image that would link other members to a third- party file-sharing service where they could view or download the image or video.
The rooms on KOFD were divided into two categories: the upper boards and the lower boards. All members of KOFD had access to the lower boards, where they could post non-nude images of children engaged in lascivious exhibition *5 6 U NITED S TATES V . G ROVO of their genitals – for example, posing in sheer or revealing underwear – in rooms such as “Princesses 9yo and Under” and “Stunning Dolls 10yo to 15yo.” The lower boards also contained rooms for members to discuss how to evade law enforcement and specific rooms – such as the “Wishing Well” and “Wishes” – where members could post requests for images or videos from specific child pornography studios or depicting particular child models.
To gain access to the upper boards, members typically needed to have a record of posting on the lower boards that demonstrated they were “friendly, cooperative members” of the site and signaled their interest in more explicit images. After a vetting process to determine the member could be trusted, a site administrator would grant him access by giving him the password to the upper boards, where members could post and view fully nude images and videos of children engaged in sexually explicit conduct.
KOFD’s 40 to 45 members were therefore divided into different levels that determined their ability to access particular content – such as the upper boards – and their authority over the workings of KOFD as a whole. Administrators had the broadest authority over KOFD’s membership and the technical aspects of its management, with the ability to admit or suspend members and manage the content on the boards. They were assisted by Moderators, who had more limited powers but could delete or modify objectionable posts by members. Legionaires, who were respected members of the board without formal administrative authority, rounded out the volunteer “staff” of KOFD. Non-staff members were divided into two levels based on their ability to access the upper-level content on the site. Castle Dwellers, the lowest level of members, were limited to the lower section of KOFD. After undergoing the vetting process described above, KOFD staff could grant members the status of Castle Resident, which permitted them access to the upper boards as well.
At trial, the government introduced extensive evidence of the defendants’ participation in KOFD. Grovo, under the username “Karomesis,” was actively involved in KOFD as a *6 Castle Resident and posted a total of 330 times in rooms on both the upper and lower boards. In one instance, he started a thread in the upper board which he titled “LEGENDARY WIN . . .” and gave the description “my sin . . . my soul . . . my Adreana (Supermodels 7-17)”. In it, he posted preview images of a prepubescent girl wearing sheer lingerie that exposed her genitals. Four KOFD members, including two staff members, thanked Grovo for his post. Grovo also started a thread in the “Wishing Well” room of the lower boards seeking images of a specific model from Magic- image.com, a popular child pornography studio, and thanked other members who suggested he could join an online group to find the images by using a prepaid and untraceable Visa or Mastercard. He also started a thread entitled “FULL Anonymity” in the lower boards, advising other members on how to use public or unsecured wireless internet connections to make it harder for law enforcement to identify them. He also began another thread alerting KOFD members to a similar child exploitation message board whose owner hаd been arrested on charges related to child pornography.
In addition, the government introduced evidence Grovo replied to threads started by other members in both the upper and lower boards. In an upper-board thread containing images of prepubescent children nude and engaged in sexually explicit activities, Grovo wrote “gracias amigo” to the thread’s creator and commented on the appearance of the models. In a lower-board thread called “Bottom Dwellers – For connoisseurs of young female backsides,” Grovo posted an image of a prepubescent girl wearing a thong and posing on all fours with the camera focused on her buttocks and genitals, accompanied by the comment, “another finely clefted set of buttocks. I’ve always had a fondness for this girls ass, It deserves it’s [sic] own temple IMHO.” Eighteen other members commented on the thread and shared images or links.
Petersen, under the username “aqualung,” was a Castle Resident and posted 440 times on both the upper and lower boards of KOFD. Like Grovo, Petersen both created new threads and replied to threads created by other members. For example, Petersen created a thread in the upper boards entitled “hot LS vid,” referring to the popular child pornography producer LS Studios. The thread included a link to a video of two nude prepubescent girls engaging in sexually explicit conduct. Another thread – which Petersen created and named “LS at its best :)” – linked to a *7 downloadable file of numerous images of child pornography. [3] Petersen аlso commented on a thread on the upper boards entitled “Oceane Dreams – Sets 1 through 27,” which referred to Oceane, a popular underage model, and linked to a third- party site where users could download a file containing numerous images. Petersen thanked the poster on behalf of all the members who downloaded the file without In both of these instances, the Federal Bureau of Investigation (FBI) was unable to recover the content from KOFD, but recovered content from Petersen’s hard drive with identical file names to the posted content and which was consistent with the video and images described in members’ posts thanking Petersen.
commenting. Four other members also posted their appreciation in the thread.
Petersen also crеated threads in the lower boards designed to help other KOFD members. In one, he posted a link to a search engine that would enable members to “just type in the model or the site” they were seeking in order to find images. He also created a thread entitled “the basics of surfin safe” that advised other members on how to disguise their online identities and noted “it takes time and effort but worth it . . . time in jail is lots worse.”
At the close of the government’s case, both Grovo and Petersen moved to dismiss the charges against them under Federal Rule of Criminal Procedure 29, arguing the government did not prove they each acted “in concert with three or more other persons” to knowingly receive or distribute child pornography in a child exploitation enterprise, § 2252A(g), or that their posts on KOFD constituted “advertisement[s] seeking or offering” child pornography, § 2251(d)(1). The district court denied their motions, concluding there was “[c]learly” an agreement between three or more persons to engage in illegal conduct on KOFD and that offering child pornography to the “closed community” of KOFD members constituted an “advertisement” under the statute.
The court convicted the defendants on both charges at a
bench trial. It sentenced Grovo to 360 months in prison and
Petersen to 240 months. It also considered the factors set
forth in
Paroline v. United States
,
10 U NITED S TATES V . G ROVO
II. DISCUSSION
We review de novo the sufficiency of the evidence,
including questions of statutory interpretation.
See United
States v. Garcia
,
A.
Both Grovo and Petersen challenge the sufficiency of the evidence underlying their convictions for engaging in a child exploitation enterprise. To prove those charges, the government needed to show that (1) Grovo and Petersen knowingly distributed, received or accessed with intent to view child pornography “as a part of a series of felony violations constituting three or more separate incidents,” (2) the incidents “involv[ed] more than one victim” and (3) they each “committ[ed] those offenses in concert with three or more other persons.” § 2252A(g). Only the third element is at issue here.
1.
The defendants argue they did not act “in concert with three or more other persons” for the purposes of the statute. In particular, Grovo contends none of his actions were “in concert with” other members of the board because each *9 member acted alone and posted at different times. Petersen argues that only KOFD’s creators and staff could be guilty of engaging in a child exploitation enterprise, and that there was insufficient evidence to conclude he had acted in concert with that enterprise. Neither argument is persuasivе.
We begin by construing the language of the statute. The
Supreme Court has recognized that “the plain meaning of the
phrase ‘in concert’ signifies mutual agreement in a common
plan or enterprise,” and requires the same mens rea as a
conspiracy charge.
Rutledge v. United States
,
We agree with these circuits that the Supreme Court’s construction of 21 U.S.C. § 848 informs our reading of § 2252A(g). Both sections criminalize analogous behavior: Section 848 targets continuing criminal drug enterprises whereas § 2252A targets continuing enterprises dedicated to distributing, receiving or accessing child pornography. Furthermore, the two statutes use similar language: Like § 2252A(g), § 848 prohibits committing a “series of violations” “in concert with . . . other persons.” 21 U.S.C. § 848(c)(2). We see no reason to depart from our sister circuits’ sensible construction of the statute.
The elements of conspiracy are well-trod territory in оur
precedent; the “gist” of the offense “is the confederation or
combination of minds.”
United States v. Lapier
, 796 F.3d
1090, 1095 (9th Cir. 2015) (quoting
United States v. Basurto
,
497 F.2d 781, 793 (9th Cir. 1974)). Read in this light,
§ 2252A(g)’s “in concert with” prong requires the
government to prove the defendant and three others had “not
only the opportunity” to unite for a common purpose, “but
*10
also the actual meeting of the minds.”
Id.
(quoting
Basurto
,
It is an entirely separate proposition to suggest the statute
also requires that each
individual
predicate felony have been
committed “in concert with” three other persons. We agree
with the Sixth Circuit that the morе natural reading of
§ 2252A(g) is that “the required total of three other persons
may be tallied by considering the predicate counts together.”
Daniels
,
Grovo argues the members’ activities on KOFD could not
have occurred “in concert” because each member posted
individually and at different times, often on different days,
and could review other members’ posts at their own leisure.
We reject this suggestion, however, because it misstates the
requirement of the statute. As noted above, § 2252A(g)’s
reference to committing the predicate series of violations “in
concert” with others requires proof, consistent with the
general mens rea of conspiracy, that the defendant agreed in
a common enterprise with three other persons to distribute,
receive or access with intent to view child pornography.
§ 2252A(g)(2). Grovo’s reading of the statute would impose
the anomalous and atextual requirement that participants in a
child exploitation enterprise act simultaneously. That has
never been required to support a showing of conspiracy. On
the contrary, “[o]ne may join a conspiracy already formed
and in existence, and be bound by all that has gone on before
in the conspiracy, even if unknown to him.”
United States v.
Knight
,
Petersen’s argument that only the creators or staff of
*11
KOFD can be liable for the entire child exploitation
enterprise is equally unpersuasive. In his view, § 2252A(g)
criminalizes the creation of the exploitation enterprise itself
– here, the KOFD message board – but does not reach the
members who merely participated in the exchange of child
pornography without creating or managing the website. But
this distinction appears nowhere in the statute. Section
2252A(g) merely requires that the defendant commit the
series of predicate offenses “in concert with thrеe or more
other
persons
,” not three or more administrators or organizers
of the scheme. § 2252A(g) (emphasis added). In this respect,
the text of § 2252A(g) is broader than that of 21 U.S.C.
§ 848, considered in
Rutledge
, which specifically requires the
offenses be undertaken “in concert with five or more other
persons with respect to whom such person occupies a position
of organizer, a supervisory position, or any other position of
management.” We will not override Congress’ decision to
use the word “person” by reading the statute instead to
specifically require an organizer, supervisor or manager.
See
also Wayerski
,
2.
So long as Grovo and Petersen acted in an agreed-upon
common enterprise with at least three other KOFD members,
they are guilty of participating in a child exploitation
enterprise in violation of § 2252A(g). Taking the evidence in
the light most favorable to the prosecution, we conclude a
rational trier of fact could have found beyond a reasonable
doubt that this was the case.
See Nevils
,
Petersen urges, correctly, that a member’s mere presence in the upper level of the KOFD forums cannot constitute agreement to a common enterprise. See, e.g. , United States v. Melchor-Lopez , 627 F.2d 886, 891 (9th Cir. 1980) (“[S]imple knowledge, approval of, or acquiescence in the object or purpose of the conspiracy, without an intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator.”). Although the government must show some actual meeting of minds between the coconspirators, it may do so “through
U NITED S TATES V . G ROVO
15
‘circumstantial evidence that defendants acted together in
pursuit of a common illegal goal.’”
Lapier
,
The government introduced ample proof at trial that Grovo and Petersen both were more than merely present on the KOFD boards, and did more than simply acquiesce in the exchange of child pornography between its members. On the contrary, they were active participants in the community, and a reasonable factfinder could infer from their activities that they agreed with other members to further the board’s common goal of sharing, accessing and viewing child pornography. Both defendants posted hundreds of times on KOFD, gained admission to the upper level of the KOFD board after being admitted and elevated through a vouching process by the Administrators, Moderators and Legionaires, repeatedly accessed and distributed child pornography in accordance with the rules of vаrious forums, repeatedly thanked other members for posting child pornography, and posted tips on how to ensure anonymity and security from law enforcement.
Much of this evidence also supports the court’s finding that Grovo’s and Petersen’s activities were in coordination with three or more persons. Many of the KOFD threads introduced at trial involved the individual defendants and *13 three or more other members either posting content or responding appreciatively to others’ posts. These interactions alone support a finding the defendants acted in concert with three or more individuals. Moreover, as noted above, the defendants had to be referred by an existing member to join KOFD and underwent the board’s vetting process to become Castle Residents, which had to be authorized by at least one of KOFD’s three administrators and may have involved discussions among the rest of KOFD’s seven-member staff.
In sum, we have no trouble concluding a reasonable factfinder could determine Grovo and Petersen acted “in concert with” at least three other individuals. The evidence supports their convictions for participating in a child exploitation enterprise in violation of § 2252A(g), and the district court did not err in denying their Rule 29 motions.
B.
Grovo and Petersen next challenge the sufficiency of the
evidence for their convictions of conspiracy to advertise child
pornography in violation of § 2251(d). To convict, the
government needed to prove (1) an agreement between two
or more persons to commit the crime of advertising child
pornography; and (2) that Grovo and Petersen intended to
advertise child pornography.
Cf. United States v. Moe
,
1.
The definition of “advertisement” under § 2251(d) presents a question of first impression in this circuit. In the defendants’ view, an advеrtisement for child pornography must be published in the press or broadcast over the air, or must otherwise be publicly and generally known. They argue that, because their posts on KOFD were visible only to members of that message board and not to the public as a *14 whole, they cannot be guilty of advertising child pornography.
Again, in questions of statutory interpretation, “our starting point is the plain language of the statute.” United States v. Williams , 659 F.3d 1223, 1225 (9th Cir. 2011). Webster’s offers the following definitions of “advertisement”:
1. “[t]he action of advertising: a calling attention to or making known” – where “advertising” is further defined as “the The statute also forbids knowingly making, printing, or publishing “any notice . . . seeking or offering” child pornography. § 2251(d). Because the indictment charged Grovo and Petersen with conspiring only to advertise child pornography, we need not determine what constitutes a “nоtice” under the statute.
action of calling something . . . to the attention of the public esp. by means of printed or broadcas t paid announcements”;
2. “a calling to public attention: publicity”; 3. “a public notice; esp: a paid notice or announcement published in some public print . . . or broadcast over radio or television.”
Advertisement , Webster’s Third Int’l Dictionary 31 (ed. Philip Babcock Grove 2002). The American Heritage Dictionary similarly defines “advertisement” as a “[a] notice, such as a poster or a paid announcement in the print, broadcast, or electronic media, designed to attract public attention or patronage.” Advertisement , Am. Heritage Dictionary 25 (5th ed. 2011). Black’s Law Dictionary has a narrower, commercial definition, describing an advertisement as “[a] commercial solicitation; an item of published or transmitted matter made with the intention of attracting clients or customers.” Advertisement , Black’s Law Dictionary (10th ed. 2014).
None of these definitions limits an advertisement to publication in the press or broadcast over the air. At most, they merely note that an advertisement “especially” includes communications “such as” those published in the press or broadcast. The means of publication or broadcast are not the *15 definitive features of an “advertisement,” so long as the advertisement calls attention to its subject or makes a particular thing known. We therefore hold that an 19 advertisement need not necessarily be published in the press or broadcast over the air.
To be sure, four of the five definitions above involve some form of “public notice” or calling “public attention” to something. Although this supports the defendants’ argument that an “advertisement” may require some public component, it does not compel us to adopt their argument that an “advertisement” must be targeted to the entire public as a whole . Assuming without deciding that an “advertisement” under § 2251(d) requires some public component, we hold that advertising to a particular subset of the public is sufficient to sustain a conviction under the statute.
Grovo urges us to consider dictionary definitions
suggesting “public” may refer to matters which are “exposed
to general view” or “open.”
Public
,
Webster’s Third Int’l
Dictionary
1836. His argument ignores other definitions,
however, which refer to matters relating to “community
interests as opposed to private affairs,” or matters “accessible
to or shared by all members of the community,” and which
clarify the public may be either “the people
as a whole
” or
may refer – with equal validity – to some “organized bоdy of
people” or “a group of people distinguished by common
interests or characteristics.”
Id.
;
see also Public
,
Am.
Heritage Dictionary
1424 (defining “public” to include “[a]
group of people sharing a common interest”). Under these
Both defendants argue they benefit from the rule of lenity, but that rule
applies “only when a criminal statute contains a ‘grievous ambiguity or
uncertainty,’ and ‘only if, after seizing everything from which aid can be
derived,’ the Court ‘can make no more than a guess as to what Congress
intended.’”
Ocasio v. United States
,
20 U NITED S TATES V . G ROVO definitions, which accord with a commonsense understanding of what it means to advertise publicly, something may be public even though it is directed only to a subset of the population as a whole. We would call an advertisement placed in an alumni magazine, neighborhood circular or high school yearbook an “advertisement,” for example, notwithstanding that it is publicized to only a cohort of the community that shares a particular affiliation or interest.
The Tenth Circuit reached a similar conclusion in
United
States v. Franklin
,
Franklin
’s reasoning accords with the view of other
courts that communications to specific, closed communities
can constitute advertisement within the meaning of § 2251.
See Wayerski
,
Here, the defendants’ posts were shared with a closed community of 40 to 45 individuals on the KOFD message boards. Their posts constitute advertisements under § 2251(d).
2.
Having concluded that a post on KOFD can satisfy the legal definition of an advertisement under § 2251(d), we turn to the defendants’ individual motions challenging the sufficiency of the evidence underlying their convictions. We conclude the evidence is sufficient to sustain both defendants’ convictions.
As an initial matter, a reasonable factfinder could determine KOFD involved a conspiracy dedicated to advertising – and, indeed, exchanging and viewing – child pornography. A former member of KOFD testified its “theme” was “models under the age of 18,” which included child pornography. Notwithstanding KOFD’s general rule purporting to forbid members from posting child pornography, members regularly posted and requested child pornography with the acquiescence and participation of the board administrators. Specific rooms on the board were designated for particular types of child pornography, and the Petersen’s argument that § 2251(d) and (e) apply only when a defendant has produced the pornography in question is foreclosed by United States v. Williams , 659 F.3d at 1225, which held there is “no requirement that a defendant personally produce child pornography in order for criminal liability to attach” under § 2251(d).
“Wishing Well” allowed members to request images produced by specific studios or depicting specific underage models. Furthermore, members were accepted to KOFD and advanced to the upper levels based in part on their demonstrated interest in child pornography.
The evidence against Grovo was sufficient to allow a rational factfinder to conclude beyond a reasonable doubt that he participated in KOFD with an intent to advertise child pornography. His post in the Wishing Well requesting pictures from the well-known child pornography studio Magic-image.com was an “advertisement seeking . . . to receive” child pornography from other members. § 2251(d).
The evidence against Petersen was also sufficient. He
argues his activities were “ambiguous” and observes there is
no evidence that he ever posted to the Wishing Well itself.
The first of these contentions is wrong; the second is
irrelevant. Among Petersen’s other posts, he started two
threads – one entitled “hot LS vid,” the other “LS at its best
:)” – both of which included video and image files. Although
*18
the government was unable to download the attached files
from links posted to KOFD, it recоvered files with identical
file names from Petersen’s computer that contained child
pornography consistent with the descriptions in other
members’ appreciative responses to Petersen’s posts. The
evidence identified “LS” as the name of one of the most
popular child pornography studios. A rational factfinder
could conclude beyond a reasonable doubt that these two
posts were advertisements “offering to . . . display” child
pornography to other KOFD members. § 2251(d)(1).
Petersen’s posts are not ambiguous merely because they did
not contain an explicit declaration he was “offering child
pornography.” On the contrary, no “particular magic words
or phrases need to be included” to make a communication аn
advertisement.
See Rowe
,
Because these two KOFD threads support Petersen’s conviction, the absence of additional posts in the Wishing Well itself is immaterial. The government presented ample evidence at trial showing KOFD members, including the defendants, advertised child pornography in other rooms throughout the upper and lower boards.
C.
Finally, Grovo challenges the district court’s method of
calculating restitution. Although we find his arguments
unpersuasive, we believe the district court’s methodology for
determining restitutionary losses was flawed in light of our
subsequent decision in
United States v. Galan
,
Under § 2259, a district court must order defendants “to
pay the victim [of child pornography] . . . the full amount of
the victim’s losses as determined by thе court.” In
Paroline
v. United States
,
Grovo first argues the district court erred in failing to
fashion restitution “in an amount that comports with [his]
relative role in the causal process.”
Id.
at 1727. But
Paroline
did not abrogate the longstanding rule that a defendant
convicted of conspiracy is liable for restitution for “not only
those [harms] resulting from the defendant’s individual
actions, but also others caused by the сonspiracy itself.”
United States v. Laney
,
*20 losses proximately caused by the conspiracy – not those caused by the individual defendant.
Grovo also argues the district court’s determination of relative causation was an abuse of discretion because application of the Paroline factors should have reduced the value of the victim’s losses. But Paroline adopted a flexible approach to causation, see id. at 1723–24, which gives district courts “wide discretion” in fashioning restitution orders, id. at 1729. Here, the district court properly considered each Paroline factor in determining the relative causal significance of the defendants’ conspiratorial conduct. It first divided the total amount of general losses by the number of previous restitution orders (factor 1) and concluded “[t]here is no information on which to reasonably predict future offenders” (factors 2 and 3). It then noted the KOFD board had one image of the victim (factor 6) that had been viewed 29 times (factor 4), but the defendants had not been involved in producing the image (factor 5). Concluding “these factors do not show a need to impose a greater award of restitution than those general losses attributable to the conspiracy,” the court did not further modify the award based on the Paroline factors.
Grovo suggests the district court should instead have
applied a “tiering” analysis that groups defendants together
based on the
Paroline
factors, as the district court did in
United States v. Gamble
,
Notwithstanding the district court’s careful and thorough
examination of the
Paroline
factors, however, we must vacate
the restitution order and remand for recalculation of the
victim’s general losses under the rule articulated in
United
States v. Galan
In
Galan
– which we decidеd after the
sentencing below – we held a district court must, “to the
extent possible,” disaggregate losses caused by “the original
abuser’s actions” and losses caused by “the ongoing
distribution and possession of images of that original abuse.”
*21
Galan
, 804 F.3d at 1290–91. The district court, however,
concluded below that “[t]he disaggregation of costs is not
necessarily a brightline . . . and the continued harm and abuse
arising out of the viewing of child pornography images may
be part of a continuing, concerted harm,” drawing that
proposition in part from the district court’s decision in
Galan
,
which we had not yet overruled. It then determined that the
“total amount of [the victim’s] general losses” was equal to
the total future treatment costs the victim expected to incur in
her lifetime. As in
Galan
, the district court reached this
dеtermination by relying on a psychological report that
focused “primarily on the resulting harms and costs from her
initial abuse” and showed only that her ongoing costs were
“at least in part
related to
” – not caused by – “the continuing
traffic in her image.” The injuries caused by the initial abuse
Because the government raised
Galan
in a citation of supplemental
authorities submitted to the court under Federal Rule of Appellate
Procedure 28(j) and the parties addressed it at oral argument, the issue is
properly before us. Although the government argues we should review for
plain error, we do not do so where, as here, “the new issue arises while the
appeal is pending because of a change in the law.”
United States v.
Flores-Payon
,
may certainly have been aggravated by subsequent viewing, but neither the district court nor the psychological report concluded subsequent viewing caused all of the victim’s losses.
Under Galan , that failure to disaggregate losses caused by the initial abuse was an abuse of discretion, and we must vacate and remand for recalculation of the victim’s general losses. We emphasize, however, that the district court’s method of apportioning that loss between the defendants here was sound under Paroline . After the court properly disaggregates the victim’s general losses, it is therefore permitted to reapply that method in reaching the individual restitution amount.
III. CONCLUSION
For the foregoing reasons, we affirm the defendants’ convictions under § 2252A(g) and § 2251(d). We vacate the district court’s restitution order and remand to allow the district court to disaggregate the portion of the victim’s losses caused by the original abuse from those attributable to continued viewing of her image, consistent with the rule announced in United States v. Galan .
AFFIRMED IN PART; VACATED AND REMANDED IN PART.