AVAA Restitution in Child-Pornography Cases: Paroline’s Relative-Role Framework Remains Controlling; NCMEC Identification Reports May Supply Reliable Proof

I. Introduction

In United States v. Moises Abraham Sotelo (11th Cir. Mar. 10, 2025), the Eleventh Circuit affirmed (1) a 121-month sentence for receipt of child pornography and (2) a $30,000 restitution order to seven victims. The consolidated appeal presented two recurring issues in federal child-exploitation prosecutions:

  1. Sentencing: whether the district court abused its discretion by rejecting the parties’ joint recommendation of a seven-year sentence and instead imposing a longer but still below-guidelines prison term.
  2. Restitution after the AVAA: whether amendments to 18 U.S.C. § 2259 made by the Amy, Vicky, and Andy Act (AVAA) changed the procedure for determining restitution—particularly whether courts must quantify total viewings, apply a heightened evidentiary standard, or deny restitution to victims who are not yet aware that their abuse images circulate online.

The court’s central precedential contribution is its published clarification that the AVAA did not displace the Supreme Court’s approach in Paroline v. United States for setting trafficking/possession restitution, and that district courts may continue to rely on NCMEC identification materials and other record evidence under established reliability principles.

II. Summary of the Opinion

A. Sentence

The Eleventh Circuit held Sotelo’s 121-month sentence substantively reasonable. The district court: (i) correctly calculated an advisory range of 135–168 months, (ii) varied downward based on an overstated criminal history category, and (iii) reasonably weighed aggravating facts (volume and severity of material, including infants/toddlers and sadistic content, and Sotelo’s moderator role) against mitigating arguments (cooperation, expected deportation, and an asserted “usual” sentence of seven years).

B. Restitution

The Eleventh Circuit rejected Sotelo’s challenges to both procedure and amount. It held:

  • The AVAA amendments to § 2259 did not alter the core methodology for determining a defendant’s restitution amount; the court may apply Paroline’s “rough guideposts” to assess the defendant’s relative role.
  • The government was not required to prove the total number of viewers of each victim’s images as a prerequisite to a restitution award.
  • The district court permissibly relied on a NCMEC report and spreadsheet to connect known series and victims to files on Sotelo’s device; the materials bore sufficient indicia of reliability under Eleventh Circuit standards applicable to restitution fact-finding.
  • Victims need not be presently aware that their images circulate online to recover restitution; § 2259 expressly permits reasonably projected future losses.
  • The individual awards (mostly the $3,000 statutory minimum, with higher awards for two victims) were supported by the record and within the district court’s discretion.

III. Analysis

A. Precedents Cited

1. Child-pornography restitution and causation

  • Paroline v. United States, 572 U.S. 434 (2014): The foundational decision. Paroline recognized that a victim’s losses are caused by the broader “trade in her images” and that traditional but-for allocation is often impossible. It therefore endorsed a discretionary approach requiring courts to order restitution in an amount reflecting the defendant’s relative causal role, guided by non-exhaustive factors (the “Paroline factors”).
    Role in Sotelo: The Eleventh Circuit treated Paroline as still controlling post-AVAA and confirmed that the statutory “relative role” language in amended § 2259 aligns with Paroline rather than replacing it.
  • Rothenberg v. United States, 923 F.3d 1309 (11th Cir. 2019): Eleventh Circuit authority on (i) standards of review for restitution legality, factfinding, and amount; and (ii) deference to district courts applying the Paroline guideposts. It also addresses what can qualify as sufficiently reliable evidence for loss estimates (including submissions from counsel).
    Role in Sotelo: The panel relied on Rothenberg to frame appellate deference (“definite and firm conviction” standard for clear error of judgment) and to reject arguments that certain forms of documentation (e.g., counsel declarations) are categorically insufficient.
  • United States v. Osman, 853 F.3d 1184 (11th Cir. 2017): Permits restitution for future expenses (e.g., therapy) when supported by record evidence and reasonably estimated.
    Role in Sotelo: Used to rebut the claim that victims who are unaware of distribution cannot recover projected future costs.
  • United States v. Danser, 270 F.3d 451 (7th Cir. 2001): Cited for the proposition that § 2259 reflects Congress’s intent to provide expansive relief for “the full amount” of losses.
    Role in Sotelo: Reinforced the broad remedial purpose informing the court’s treatment of loss categories and projections.
  • United States v. Sainz, 827 F.3d 602 (7th Cir. 2016): Referenced (via Rothenberg) regarding restitution for future lost earnings under § 2259.
    Role in Sotelo: Supported inclusion of lost income and future earnings analyses.
  • United States v. Groover, 2021 WL 3205719 (11th Cir. July 29, 2021): Noted as an example of similar restitution awards for a victim previously reviewed by the Eleventh Circuit.
    Role in Sotelo: Used to confirm that comparable award ranges have been sustained in this circuit.
  • United States v. Kearney, 672 F.3d 81 (1st Cir. 2012): Quoted for the idea that Congress sought to compensate victims without forcing them to relive trauma as a “condition” of restitution.
    Role in Sotelo: Helped justify a pragmatic evidentiary approach that does not impose undue burdens on victims.

2. Proof, hearsay, and reliability in restitution findings

  • United States v. Hairston, 888 F.2d 1349 (11th Cir. 1989) (quoting United States v. Rodriguez, 765 F.2d 1546 (11th Cir. 1985)): Establishes that courts may consider hearsay in restitution determinations if the defendant has an opportunity to refute it and it bears “minimal indicia of reliability.”
    Role in Sotelo: The court reaffirmed this framework as the governing evidentiary standard for restitution and held the NCMEC materials met it.
  • United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011): Describes NCMEC’s function in identifying victims and notifying them when their images are found in prosecutions.
    Role in Sotelo: Provided institutional context supporting the reliability and relevance of NCMEC identification practices.
  • United States v. Miller, 982 F.3d 412 (6th Cir. 2020): Quoted for an accessible explanation of “hash values” as digital fingerprints used to match known child sexual abuse material.
    Role in Sotelo: Supported the government’s description of how series/victims are linked to files without repeated viewing of contraband images.
  • United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016): Cited for NCMEC’s statutory role and functions.
    Role in Sotelo: Reinforced why NCMEC-generated identification data can be treated as inherently more reliable than ad hoc third-party compilations.

3. Constitutional/plain-error arguments raised late

  • Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013): Invoked by Sotelo (for the first time on appeal) to argue that the AVAA’s $3,000 minimum functions like a penalty requiring jury findings.
    Role in Sotelo: The court declined to reach the merits, holding there was no plain error given the absence of controlling Supreme Court or Eleventh Circuit precedent applying Apprendi/Alleyne to the AVAA restitution minimum.
  • United States v. Bobal, 981 F.3d 971 (11th Cir. 2020) and United States v. Lejarde-Rada, 319 F.3d 1288 (11th Cir. 2003): Plain-error framework, including the principle that unsettled questions generally cannot constitute “plain” error.
    Role in Sotelo: These cases provided the doctrinal basis for rejecting new constitutional theories as forfeited and not plainly erroneous.
  • Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006): Mentioned as suggesting Apprendi may not apply to restitution.
    Role in Sotelo: Undermined Sotelo’s attempt to recast the AVAA minimum as clearly subject to Apprendi/Alleyne.
  • United States v. Sperrazza, 804 F.3d 1113 (11th Cir. 2015): Referenced by analogy in rejecting (on plain-error review) an excessive-fines argument; $3,000 is not grossly disproportionate to the gravity of the offense.
    Role in Sotelo: Reinforced that, even if considered, the Eighth Amendment argument was unlikely to succeed.

4. Sentencing reasonableness framework

  • United States v. Livesay, 587 F.3d 1274 (11th Cir. 2009): Abuse-of-discretion review for substantive reasonableness.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc)): Defines when a district court abuses discretion in weighing § 3553(a) factors.
  • United States v. Ramirez-Gonzalez, 755 F.3d 1267 (11th Cir. 2014) and United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018): Confirm broad district-court discretion as to weight of § 3553(a) factors; challenger bears burden.
  • United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) (quoting Ledford v. Peeples, 605 F.3d 871 (11th Cir. 2010)): “Ballpark of permissible outcomes” language.
  • United States v. Duperval, 777 F.3d 1324 (11th Cir. 2015): Disparity claims require similarly situated comparators.
  • United States v. Castaneda, 997 F.3d 1318 (11th Cir. 2021): Within-guidelines expectation of reasonableness; below-statutory-maximum as indicator.
  • United States v. Jordan, 582 F.3d 1239 (11th Cir. 2009): Abuse of discretion includes applying wrong legal standard or improper procedures.

B. Legal Reasoning

1. Why the AVAA did not “replace” Paroline

The panel treated the AVAA as a codification-and-adjustment of the Paroline approach rather than a repudiation. The amended statute now requires: (i) determination of the victim’s full amount of losses, and (ii) a restitution amount reflecting the defendant’s relative role, with a floor of $3,000. The court emphasized that Paroline already directed district courts to do essentially the same relative-causation assessment, using discretionary “guideposts” and expressly rejecting a rigid formula.

Critically, the opinion reasoned that Sotelo’s preferred requirement—proof of total viewings—would be inconsistent with the nature of internet trafficking: it is often indeterminable and potentially limitless. The Eleventh Circuit therefore read “relative role” as a practical, discretionary inquiry that can be satisfied by the type of evidence and factors Paroline contemplated (e.g., number of images possessed, whether distribution occurred, prior recoveries, known prosecutions).

2. Reliability of NCMEC identification materials for proving victim linkage

The court held the NCMEC report and spreadsheet were sufficiently reliable despite the spreadsheet’s missing authorship metadata because: (i) the series/victim identifications were consistent across the record, (ii) the NCMEC’s statutory mission and systems make it the principal national repository for such identification, (iii) hash-based matching provides a standardized mechanism to associate files with known series and victims, and (iv) the record included extensive corroborating documentation from victim counsel and experts. In short, the panel endorsed a total-record view of reliability rather than a hyper-technical requirement for a specific affidavit in every case.

3. Restitution for victims not yet aware of online circulation

The court rejected the argument that a victim’s lack of current awareness defeats restitution. Section 2259 expressly includes losses “reasonably projected to be incurred,” and Eleventh Circuit precedent permits future-cost awards supported by record evidence. The district court therefore could award restitution based on reasonable projections of future therapy/medical needs and other compensable categories (including attorney’s fees), even if a child victim has not yet been informed about trafficking.

4. Appellate deference to restitution amounts

Applying Rothenberg v. United States, the panel deferred to the district court’s discretionary calibration of amounts within the statutory framework, especially where the court made individualized findings, considered prior recoveries, and largely awarded the statutory minimum. The Eleventh Circuit treated the awards as comfortably within a “reasonable range” given Sotelo’s possession conduct and the evidentiary record of losses.

5. Sentencing: deference to district court’s weighing of § 3553(a)

The sentencing analysis is conventional but important: even where the government and defendant jointly recommend a sentence, the district court retains discretion to reject it, particularly when aggravating conduct suggests the recommendation would effectively discount offense severity. The Eleventh Circuit credited the district court’s explanation: the court’s downward variance was anchored to an adjustment in perceived criminal history overstatement, while refusing a deeper reduction that would (in the court’s view) undervalue the seriousness of the offense conduct.

C. Impact

  • Procedural stability post-AVAA: The opinion strengthens the position that the AVAA’s changes (including the $3,000 minimum) do not require new, more mathematically exact or viewer-count-based procedures; district courts may continue using Paroline’s factor-guided discretion.
  • Evidence in restitution litigation: By approving reliance on NCMEC identification materials under “minimal indicia of reliability,” the decision supports streamlined proof of victim linkage in a way that may reduce repeated exposure and burdens on victims while still preserving defendants’ opportunity to contest.
  • Victims’ projected-loss claims: The opinion underscores that § 2259’s “reasonably projected” losses are meaningful, and it rejects categorical bars based on a victim’s present awareness—an important point in cases involving very young victims.
  • Constitutional questions deferred, not resolved: The court’s plain-error disposition leaves open (for properly preserved cases) the broader questions about whether Apprendi/Alleyne apply to the AVAA minimum. But practically, it signals that raising those issues for the first time on appeal is unlikely to succeed.

IV. Complex Concepts Simplified

AVAA (Amy, Vicky, and Andy Act)
A 2018 law amending § 2259 to (i) require courts to calculate the victim’s total losses from trafficking, (ii) order restitution reflecting the defendant’s relative role, and (iii) impose a minimum of $3,000 per victim (subject to an aggregate cap at the victim’s demonstrated losses).
Paroline factors (“rough guideposts”)
Practical considerations a court may use to estimate a defendant’s relative contribution to a victim’s overall losses, including how many images the defendant possessed, whether the defendant distributed them, and what is known about other offenders and prior restitution.
“Relative role in the causal process”
The idea that a possessor is not the sole cause of a victim’s losses, but still contributes to them; restitution must reflect that partial contribution without requiring impossible precision.
NCMEC report / hash values
NCMEC uses databases and “hash values” (digital fingerprints) to match files found in investigations to known child sexual abuse material and identified victims, enabling victim notification and restitution claims without repeatedly viewing contraband.
“Minimal indicia of reliability”
A relatively flexible evidentiary threshold allowing courts to consider hearsay at restitution so long as it is reasonably trustworthy and the defendant can respond.
Plain error
A strict appellate standard for issues not raised in the district court; the error must be clear under existing law. If the issue is unsettled, the appellant usually loses.

V. Conclusion

United States v. Moises Abraham Sotelo cements, in the Eleventh Circuit, that the AVAA’s amendments to § 2259 did not change the essential restitution methodology for child-pornography trafficking/possession cases: courts still determine total losses and then select a defendant-specific amount reflecting relative causal responsibility using Paroline’s discretionary guideposts, without requiring proof of total viewings. The decision also approves reliance on NCMEC identification materials under established reliability principles and confirms that restitution may include reasonably projected future losses even for victims not yet aware of online dissemination. Alongside its deferential sentencing holding, the opinion reinforces trial-court discretion—bounded by statutory text and reasoned explanation—in managing both punishment and victim compensation in a uniquely diffuse, multi-offender harm context.