AVAA Assessments Are Mandatory, Amounts Must Be Individually Reasoned: Seventh Circuit Clarifies § 2259A

Introduction

In United States v. Gregory Johnson, the Seventh Circuit addressed a recurring sentencing question at the intersection of child-exploitation penalties and defendants’ financial circumstances: whether a district court may decline to impose an assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act (AVAA), 18 U.S.C. § 2259A, when the defendant is indigent. The panel—Judges Brennan, St. Eve (author), and Maldonado—held that AVAA assessments are mandatory in qualifying cases, regardless of indigency, but the district court retains discretion over the amount (up to the statutory cap) and must explain that amount by reference to specified statutory factors, including the defendant’s financial condition.

The case arose from a 2020 undercover operation in which Johnson responded to a post advertising sex acts with a purported 14-year-old. A jury convicted him of attempting to use a minor to engage in sexually explicit conduct for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e). At sentencing, the district court waived a fine due to inability to pay, excused the $5,000 Justice for Victims of Trafficking Act (JVTA) assessment upon finding Johnson indigent, but imposed a $5,000 AVAA assessment. Johnson appealed the AVAA assessment, arguing both that it conflicted with the indigency finding and that the court failed to adequately explain the amount.

Summary of the Opinion

• AVAA assessments under 18 U.S.C. § 2259A are mandatory in qualifying child-exploitation cases; courts lack discretion to waive them based on indigency.
• The sentencing court retains discretion to set the amount of the assessment (up to $50,000 for production offenses) and must consider the factors in 18 U.S.C. §§ 3553(a) and 3572, including the defendant’s income, earning capacity, and financial resources.
• Merely stating that the court considered the factors is not sufficient; the record must reveal a reasoned and reviewable basis for the amount chosen, especially where other financial findings (e.g., indigency under the JVTA, no ability to pay a fine) suggest tension.
• The Seventh Circuit vacated the $5,000 AVAA assessment and issued a limited remand for the district court to impose an AVAA assessment and explain its basis. The court took no position on whether $5,000 is ultimately appropriate.

Case Background and Issues

Factual and Procedural Background

Johnson was convicted after trial of attempting to induce a minor to produce child pornography (§ 2251(a), (e)). The Presentence Investigation Report (PSR) indicated no current income (other than occasional support from his mother), assets limited to approximately $40,000 in a retirement account and $500 in a savings account, and exposure to a variety of financial penalties:

• Mandatory $100 special assessment under 18 U.S.C. § 3013;
• Discretionary fine up to $250,000 under 18 U.S.C. § 3571(b);
• $5,000 JVTA assessment under 18 U.S.C. § 3014 if the court found he was not indigent;
• An additional assessment under the AVAA, 18 U.S.C. § 2259A.

The district court imposed a 15-year term of imprisonment and 10 years’ supervised release, waived any fine for inability to pay, found Johnson indigent and thus not subject to the JVTA assessment, but imposed a $5,000 AVAA assessment. The court stated that it had considered §§ 3553(a) and 3572 in arriving at the amount.

Issues on Appeal

• Whether § 2259A allows the sentencing court to waive the AVAA assessment based on indigency.
• Whether the district court’s explanation for selecting $5,000 satisfied the statutory requirement to consider §§ 3553(a) and 3572, given its simultaneous findings of indigency and inability to pay a fine.

Analysis

I. Statutory Framework and the Court’s Holding

• 18 U.S.C. § 3013: Courts must impose a $100 special assessment per felony count; this is mandatory. See United States v. Filzen, 991 F.3d 785, 789 (7th Cir. 2021).
• 18 U.S.C. § 3571: Fines are discretionary. Courts must consult § 3572’s factors—including a defendant’s income, earning capacity, and financial resources—and the general sentencing factors in § 3553(a). See United States v. Ellis, 522 F.3d 737, 739 (7th Cir. 2008).
• 18 U.S.C. § 3014 (JVTA): The court “shall assess” $5,000 on any non-indigent person convicted of enumerated offenses, including child-exploitation crimes. Indigency requires considering eligibility for appointed counsel at sentencing and whether the defendant generally lacks the resources to provide for themselves going forward. See United States v. Otradovec, 72 F.4th 794, 797 (7th Cir. 2023).
• 18 U.S.C. § 2259: Restitution for identified victims is mandatory in child-exploitation cases.
• 18 U.S.C. § 2259A (AVAA): In addition to other penalties, the court “shall assess” an amount “not more than $50,000” for child-pornography production offenses. § 2259A(c) requires the court to consider §§ 3553(a) and 3572 when setting the amount.

The Seventh Circuit holds that the AVAA assessment is mandatory and not subject to waiver for indigency. However, the amount is discretionary and must be grounded in the statutory factors, with an explanation sufficient to permit appellate review.

II. Precedents and How They Shape the Decision

• United States v. Chaoqun, 107 F.4th 715, 725, 735 (7th Cir. 2024): Confirms de novo review of statutory interpretation and of procedural sentencing error, framing how the panel approaches whether the district court properly applied § 2259A and explained its decision.
• Smith v. Spizzirri, 601 U.S. 472, 476 (2024), and Lopez v. Davis, 531 U.S. 230, 241 (2001): “Shall” signals a mandate; the Seventh Circuit applies this textual canon to conclude § 2259A assessments are non-discretionary as to whether they must be imposed.
• United States v. McIntosh, 198 F.3d 995, 1003–04 (7th Cir. 2000): No contradiction exists when a court imposes a mandatory financial sanction but waives a discretionary fine; this supports imposing an AVAA assessment while waiving a § 3571 fine.
• United States v. Picardi, 950 F.3d 469, 476 (7th Cir. 2020); United States v. Lee, 950 F.3d 439, 444 (7th Cir. 2020); United States v. Bauer, 129 F.3d 962, 968 (7th Cir. 1997): Together, these decisions require that when statutes direct courts to consider § 3553(a)/§ 3572 factors in imposing financial penalties, the record must make it clear that the court considered the relevant factors and must provide a reasoned, reviewable basis for the amount.
• United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014): Adoption of a PSR can suffice if the PSR itself supplies an adequate basis and it is clear the court considered the factors. The panel distinguishes this case because the record did not connect PSR facts to an AVAA amount—especially in light of contrary indigency findings.
• United States v. Sayyed, 862 F.3d 615, 619–20 (7th Cir. 2017): Retirement funds can be accessed to satisfy judgments, but the panel notes no indication the district court intended that here; mere existence of retirement assets does not, by itself, show the court applied § 3572(a)(1) in selecting the AVAA amount.
• United States v. Wilcher, 91 F.4th 864, 869 (7th Cir. 2024): Adequacy of a sentencing explanation is reviewed de novo for procedural sufficiency; the court applies this standard to the adequacy of the AVAA amount explanation.
• United States v. Filzen, 991 F.3d 785 (7th Cir. 2021), and United States v. Ellis, 522 F.3d 737 (7th Cir. 2008): Provide the baseline for mandatory special assessments and discretionary fines, demarcating how different financial penalties fit within the sentencing framework.
• United States v. Otradovec, 72 F.4th 794 (7th Cir. 2023): Supplies the indigency test for JVTA assessments, highlighting why a JVTA waiver does not control the AVAA imposition question but is relevant to the AVAA amount analysis.

III. The Court’s Legal Reasoning

• Textual command: Section 2259A states the court “shall assess,” which—absent qualifiers—means imposition is mandatory. The court rejects the argument that indigency allows the court to dispense with the AVAA assessment altogether, distinguishing permissive or conditionally mandatory provisions such as § 3571 (fines) and § 3014 (JVTA).
• Discretion over the amount: While the assessment must be imposed, § 2259A(c) expressly requires consideration of §§ 3553(a) and 3572 in setting the amount, up to $50,000 for production offenses. Those factors squarely include the defendant’s income, earning capacity, and resources, making the defendant’s financial condition relevant to the amount chosen.
• Explanation requirement: It is not enough for the court to recite that it considered the statutory factors. The record must reveal a reasoned basis for the amount selected. Where the court found no ability to pay a fine and deemed the defendant indigent for JVTA purposes, a bare imposition of $5,000 without reconciling these findings is inadequate.
• Inferences from the record: Adoption of the PSR did not cure the deficiency. Although the PSR noted $40,000 in retirement assets, there was no indication the court planned to rely on those assets to fund the AVAA assessment, and the district court’s indigency finding and waiver of other financial penalties created tension that required explanation.
• Rejection of post hoc rationales: The government’s argument that the court might have prioritized the AVAA assessment because § 2259A(d)(2) places AVAA disbursement ahead of most other payments fails. Section 2259A(d)(2) is about the order of disbursement, not about which penalties to impose or in what amount. Moreover, nothing in the record suggested the sentencing court relied on such a rationale.

IV. Standards of Review Clarified

• Interpretation of § 2259A and the adequacy of the sentencing explanation are reviewed de novo as questions of law and procedural sufficiency. See Chaoqun; Wilcher.
• By contrast, if the court properly considers the enumerated factors, the amount selected would be reviewed for clear error. See Lee.

V. Application to This Case and Scope of Remand

The district court correctly recognized the AVAA assessment as mandatory. However, its explanation for choosing $5,000 did not satisfy the requirement to provide a reasoned, reviewable basis tied to §§ 3553(a) and 3572, particularly in light of its findings that Johnson could not pay a fine and was indigent for JVTA purposes. The Seventh Circuit therefore vacated the AVAA assessment and ordered a limited remand for the district court to:

• Impose an AVAA assessment (some amount up to $50,000, as the statute requires), and
• Explain the amount with reference to the statutory factors and in a manner that reconciles the assessment with the court’s other financial findings.

The panel expressly took no position on whether $5,000 is appropriate; the deficiency was procedural, not substantive.

Impact and Practical Implications

For District Courts

• AVAA assessments cannot be waived for indigency; courts must impose some assessment in qualifying cases.
• The amount must be the product of a documented, individualized analysis under §§ 3553(a) and 3572. Judges should tie facts—assets (including retirement accounts), earning capacity during and after incarceration, support obligations, restitution obligations, length of sentence, and deterrence needs—to the dollar figure.
• Adequate explanations can draw from adopted PSR facts, but courts should explicitly connect those facts to the amount and address apparent tensions (e.g., finding indigency under JVTA while imposing a significant AVAA sum).
• Avoid using the JVTA’s $5,000 as a default benchmark. The AVAA contains no fixed minimum for production offenses—only a maximum. The amount should not be reflexive but reasoned.
• If contemplating reliance on particular assets (e.g., retirement funds), payment schedules, or programmatic collection mechanisms, courts should say so to create a reviewable record.

For Defense Counsel

• Indigency will not eliminate the AVAA assessment, but it is central to the amount. Build a record on current resources, realistic earning potential post-release, restitution obligations, and hardship considerations under § 3572(a).
• Request an explicit, factor-by-factor explanation that reconciles any AVAA amount with findings on fines and JVTA indigency. Propose a concrete amount and payment plan supported by the PSR and evidence.
• Where retirement funds exist, be prepared to address whether and how those funds should (or should not) be considered given penalties, tax consequences, and actual accessibility.

For Prosecutors

• Argue that AVAA imposition is mandatory, but ensure the record supports the amount with § 3572(a) evidence (assets, earning capacity, payment schedule feasibility, and deterrence).
• Avoid post hoc rationales on appeal not supported by the sentencing record (e.g., disbursement priority under § 2259A(d)(2) unmoored from the court’s stated reasoning).

For Probation Officers/PSR Authors

• Include detailed, forward-looking analyses of earning capacity, asset liquidity (including retirement accounts), support obligations, and any practical barriers to payment to facilitate a reasoned AVAA amount.
• Discuss how the § 3572(a) factors map onto realistic payment schedules during custody and supervised release.

For the Law of Restitution and Related Penalties

• The decision harmonizes the roles of multiple financial sanctions: mandatory imposition (AVAA and § 3013), discretionary imposition (fines, conditioned JVTA), and mandatory restitution. It underscores that ability to pay influences amount and planning, not whether certain assessments apply.
• Courts should be mindful of § 2259A(d)(2)’s disbursement priority while recognizing it does not itself supply a rationale for choosing an amount; any consideration of prioritization must be expressly connected to the § 3572 factors and the record.

Complex Concepts Simplified

• Mandatory vs. discretionary: “Shall assess” means the court must impose the AVAA assessment. By contrast, fines under § 3571 are discretionary, and JVTA assessments apply only if the defendant is not indigent.
• Assessment vs. fine vs. restitution:
  • Assessment: A fixed or capped monetary amount imposed by statute to support victim-related purposes (e.g., AVAA; § 3013 special assessment), independent of victim-specific losses.
  • Fine: Punitive monetary penalty paid to the government, imposed at the court’s discretion with consideration of ability to pay.
  • Restitution: Compensation paid to identified victims to cover their actual losses; generally mandatory in child-exploitation cases (§ 2259).
• JVTA indigency: A forward-looking inquiry that considers appointed-counsel eligibility and whether the defendant generally lacks resources to provide for themselves going forward. A JVTA indigency finding removes the JVTA assessment but does not negate the AVAA’s mandatory imposition.
• Standards of review: Procedural adequacy and statutory interpretation are reviewed de novo; once proper procedures are followed, the particular amount is reviewed for clear error.
• PSR adoption: A court may adopt the PSR’s findings, but to support a financial penalty amount, the PSR must contain a sufficient factual basis and the court must make clear it relied on those facts in applying statutory factors.
• Priority of disbursement: § 2259A(d)(2) establishes the order in which collected funds are distributed (AVAA first in many cases). It does not dictate whether or how much to impose.

Conclusion

United States v. Gregory Johnson establishes an important clarifying rule in the Seventh Circuit: AVAA assessments under 18 U.S.C. § 2259A are mandatory in qualifying child-exploitation cases, regardless of a defendant’s indigency. Yet the amount is not automatic. Sentencing courts must exercise informed discretion within the statutory cap and must connect the amount to the § 3553(a) and § 3572 factors—particularly the defendant’s financial condition and earning capacity—through a reasoned explanation apparent on the record.

The decision’s practical message is twofold. First, courts cannot elide the AVAA assessment because a defendant is indigent or unable to pay a fine. Second, courts must avoid rote amounts (such as defaulting to the JVTA’s $5,000) without demonstrating individualized consideration. By vacating the $5,000 assessment and issuing a limited remand solely to secure a reasoned explanation for the AVAA amount, the Seventh Circuit reinforces a consistent, principled approach to financial penalties: mandatory where Congress says “shall,” discretionary but explainable as to amount, and always reviewable for procedural soundness.