BLACK, Circuit Judge:
Thomas Patrick Keelan appeals the district court's sentence ordering restitution pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. Keelan argues the district court erred in ordering restitution because (1) 18 U.S.C. § 2422(b) is not a "crime of violence" as defined in 18 U.S.C. § 16(b); (2) the victim did not suffer a bodily injury; (3) a victim cannot recover mental health treatment expenses for a physical injury; and (4) Keelan's criminal offense did not proximately cause the victim's treatment expenses. Upon review, we affirm.
In the fall of 2009, J.S. started his sophomore year in high school at the Hebrew Academy in Miami Beach, Florida. Keelan was J.S.'s English teacher at the academy. J.S. was 15 years old, and Keelan was 51.
Acting on a rumor circulating through the school, Keelan confronted J.S. after class about his cutting. Keelan offered words of comfort and encouraged J.S. to call or text him whenever he felt the urge to cut. At Keelan's suggestion, they began meeting each other during the school lunch hour to play chess in Keelan's classroom and discuss J.S.'s emerging identity issues.
One night Keelan texted J.S. and revealed he was at a gay bar on South Beach. J.S. told Keelan he believed was gay. After this exchange, Keelan and J.S. began texting and talking each day for several hours, and Keelan began inserting sexual innuendo into their conversations. Keelan eventually asked J.S. if he wanted to have sex with him, and J.S. said yes.
At trial, Dr. Terri Patterson, an expert in child exploitation offenses, testified Keelan's interactions with J.S. were part of the "grooming process" typically employed by child predators. The six phases of grooming — identification, connection, information gathering, need fulfillment, sexual inhibition reduction, and preservation — were intended to establish Keelan's psychological control over J.S. Based on her review of the evidence, Dr. Patterson opined Keelan groomed J.S.
On February 14, 2010, Keelan picked up J.S. near the academy and drove J.S. to Keelan's apartment where they performed oral sex. They continued to regularly have oral and anal sex at Keelan's apartment after J.S. transferred to another high school. Upon Keelan's suggestion, they integrated sex toys, bondage, pornography, and sadomasochism into the relationship. Keelan blindfolded, tied, spanked, and whipped J.S.
Fearing others would discover this illicit sexual relationship, Keelan gave J.S. a burner cellphone. Keelan also taught J.S. to begin and end their written conversations with code words and expressions. Using this code, Keelan sought to ensure he was actually texting and emailing J.S., not a parent or law enforcement official.
During J.S.'s junior year of high school, Keelan moved to Virginia to take a new teaching job. Despite the long distance, Keelan selected, reserved, and paid for a room in a Hollywood, Florida hotel where he and J.S. had sex.
For reasons unknown to J.S., his parents began to suspect he was in an inappropriate relationship with Keelan. During his senior year of high school, J.S.'s parents enrolled him at a wilderness camp in Georgia and a residential treatment center in Texas. J.S. could not communicate with Keelan during this time. When Keelan returned to Florida, J.S. decided he wanted to cooperate with law enforcement officials.
A few months before his 18th birthday, J.S. made wiretapped phone calls to Keelan. Keelan revealed he kept one of J.S.'s old vocabulary tests in which J.S. scored a perfect 20 out of 20. Keelan kissed it "every day" and kept it as a talisman of J.S. During one call, Keelan admitted he was masturbating to the sound of J.S.'s voice and said he loved the way J.S. performed oral sex.
Later that day, Keelan arrived at the hotel where officers arrested him and searched his car. The search uncovered a wide array of sex toys, bondage devices, lubricant, and pornographic DVDs featuring young adult males. Following his arrest, Keelan admitted to his sexual relationship with J.S.
After a three-day trial, a jury convicted Keelan of knowingly using means of interstate commerce to persuade, induce, or entice J.S. (a minor) to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
The district court sentenced Keelan to two concurrent prison terms of 200 months and a 25-year term of supervised release. Pursuant to 18 U.S.C. § 3664(d)(5), the district court found J.S.'s losses were not yet ascertainable and deferred a restitution ruling because the family of J.S. had not yet produced an accounting of his mental health treatment costs. The district court later referred the restitution issue to a magistrate judge because the paper record alone was insufficient to determine the appropriate amount of restitution.
The magistrate judge conducted a restitution hearing on August 7, 2013. The magistrate judge admitted into evidence several invoices from family therapists and psychological counselors. The invoices included fees for mental health treatment.
The magistrate judge entered a Report and Recommendation (R & R) recommending Keelan pay $104,886.05 pursuant to the MVRA, 18 U.S.C. § 3663A. The R & R concluded Keelan committed a crime of violence that resulted in bodily injury to the minor victim, and restitution was necessary for mental healthcare to treat harm directly and proximately caused by Keelan's criminal offense. The R & R calculated the cost of treatment administered after February 14, 2010, the date on which Keelan first sexually abused J.S. Keelan filed a timely objection to the R & R.
The district court adopted the R & R, ordered Keelan to pay the amount specified therein, and incorporated that order into an amended judgment. Keelan timely filed a notice of appeal.
We review de novo "the legality of an order of restitution." United States v. Washington, 434 F.3d 1265, 1267 (11th Cir.2006). We review for clear error "factual findings underlying a restitution order." Id. at 1267.
Keelan argues the district erroneously ordered restitution under the MVRA. The
Keelan proffers four reasons the district court erred in ordering restitution. We address each argument in turn.
Keelan argues 18 U.S.C. § 2422(b), which prohibits knowingly persuading, inducing, enticing, or coercing a minor to engage in sexual activity, is not a crime of violence as defined in 18 U.S.C. § 16(b).
The ultimate issue is one of first impression in this Court: whether 18 U.S.C. § 2442(b) is a "crime of violence" under 18 U.S.C. § 16(b).
In looking at the elements and nature of the offense, we must decide if only the ordinary violation of the statute at issue must present such a risk, or if all violations of the statute must present such a risk. The parties did not brief whether the "ordinary case" standard established in James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007), also applies to § 16(b). This gloss on the categorical approach requires a court to ask if the "ordinary," rather than the hypothetical and "unusual," violation of the statute at issue qualifies as a crime of violence. Id.; see United States v. Chitwood, 676 F.3d 971, 977 (11th Cir.2012) ("[I]t is the `ordinary' or `generic' case that counts."). Despite the parties' failure to brief this question, we answer it because, in light of binding Supreme Court precedent, doing so is a necessary, logical step to determine if § 2422(b) is categorically a crime of violence under § 16(b). See James, 550 U.S. at 208, 127 S.Ct. at 1597 (using "ordinary case" standard when applying categorical approach).
All other circuits to examine the issue have held the proper inquiry under § 16(b) is whether the conduct encompassed by the elements of the offense raises a substantial risk the defendant may use physical force in the "ordinary case", even though, at the margin, some violations of the statute may not raise such a risk. United States v. Avila, 770 F.3d 1100, 1107 (4th Cir.2014) (quoting James, 550 U.S. at 208, 127 S.Ct. at 1597) (applying "ordinary case" standard to § 16(b) analysis); United States v. Fish, 758 F.3d 1, 10 (1st Cir.2014) (same); Rodriguez-Castellon v. Holder, 733 F.3d 847, 853-55 (9th Cir.2013) (same); United States v. Echeverria-Gomez, 627 F.3d 971, 978 (5th Cir.2010) (same); Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir.2009) (same); United States v. Sanchez-Garcia, 501 F.3d 1208, 1213 (10th Cir.2007) (same). We follow this uniform rule and adopt the "ordinary case" standard for analyzing § 16(b).
Applying the categorical approach looking only to the ordinary case, we hold 18 U.S.C. § 2422(b) qualifies as a crime of violence under 18 U.S.C. § 16(b). Our precedent suggests this result. Section 2422(b) criminalizes using or attempting
Keelan argues the evidence before the district court was insufficient to conclude J.S. suffered a "bodily injury" under 18 U.S.C. § 3663A(b)(2). Keelan forfeited his right to seek review on this issue, however, because he failed to raise a specific objection to this factual finding in the R & R, and the district court adopted the R & R's factual finding in a short opinion. See Fed.R.Crim.P. 59(a) ("Failure to object in accordance with this rule waives a party's right to review."); Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.1993) ("When the magistrate provides such notice and a party still fails to object to the findings of fact and those findings are adopted by the district court the party may not challenge them on appeal in the absence of plain error or manifest injustice."). Keelan has failed to show plain error or manifest injustice, and has thus forfeited review of this issue.
Keelan argues the district court erred in ordering restitution because there is no nexus between J.S.'s bodily injuries and his mental health treatment. Keelan asserts the MVRA limits restitution to medical services that treat only the bodily injury itself, not the psychological consequences flowing from that injury. We disagree.
Keelan's argument runs afoul of the MVRA's plain language. Under the MVRA, the defendant must "pay an amount equal to the cost of necessary medical and related professional services... relating to physical, psychiatric, and psychological care, including nonmedical care and treatment." 18 U.S.C. § 3663A(b)(2)(A) (emphasis added). The statutory language does not limit restitution only to care necessary to narrowly treat the physical manifestation of the victim's injury. The statute explicitly encompasses mental health treatment necessary to treat the psychological trauma of the victim. The plain language of the MVRA is buttressed by Congress's choice to define "bodily injury" in Title 18 as, inter alia, "impairment of ... [a] mental faculty," Id. § 1365(h)(4); § 1515(a)(5). Surely Congress did not intend to define the impairment of a mental faculty as a bodily injury but then leave victims without the ability to recover the treatment costs for such an injury. The district court accordingly did not err in ordering restitution for J.S.'s mental health treatment.
Finally, Keelan argues J.S.'s bodily injury did not proximately cause his mental health treatment because J.S. suffered from several psychological problems prior to Keelan's sexual abuse. Keelan contends the evidence showing J.S. cut himself before the sexual relationship demonstrates the absence of proximate causation.
The district court did not clearly err in finding Keelan's offense "directly and proximately" caused J.S. to incur $104,886.05 in mental health expenses, see 18 U.S.C. § 3663A(a)(2). Contrary to Keelan's argument, we have held a "[d]efendant's conduct need not be the sole cause of the loss." United States v. Robertson,
The R & R adopted by the district court carefully analyzed the factual and temporal basis of J.S.'s mental health treatment. Although Dr. Patterson had testified Keelan began grooming J.S. in the fall of 2009, the magistrate judge excluded all costs prior to February 14, 2010 — the day Keelan first sexually abused J.S. — finding there was "no doubt" Keelan proximately caused J.S.'s psychiatric problems after that date.
In light of the foregoing reasons, we affirm Keelan's conviction and sentence.
We do not decide whether our precedent mandates the rule sought by the Government, but simply note our reasoning in Rutherford and Searcy is consistent with our holding in this opinion.