United States v. Black: Oral AVAA Restitution, Mislabelled Written Judgments, and Plain-Error Review of Child-Pornography Restitution

United States v. Black: Oral AVAA Restitution, Mislabelled Written Judgments, and Plain-Error Review of Child-Pornography Restitution

I. Introduction

In United States v. Richard Roy Black, No. 24-3185 (6th Cir. Nov. 20, 2025) (not recommended for publication), the Sixth Circuit addressed a recurring set of issues in federal sentencing practice:

  • How to characterize a monetary obligation imposed under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (the “AVAA”): is it restitution under 18 U.S.C. § 2259 or an assessment under § 2259A?
  • What standard of review applies to a challenge to restitution when the defendant responded to the district court’s Bostic inquiry with only a generalized objection?
  • What level of factual specificity must a district court provide when setting restitution in child-pornography cases governed by Paroline v. United States, 572 U.S. 434 (2014), as codified by the AVAA?
  • May a district court award AVAA restitution to victims who did not request it?

Richard Black, a registered sex offender, pleaded guilty to two child-pornography offenses after investigators found thousands of child sexual abuse images and videos on a hidden cell phone tied to him via an online chat application. The district court sentenced him to 210 months’ imprisonment, ordered him to pay a total of $152,000 under the AVAA, and imposed a $10,000 special assessment under the Justice for Victims of Trafficking Act of 2015 (JVTA).

On appeal, Black challenged only the AVAA-related financial obligations. He argued that:

  1. The $152,000 obligation—described in the written judgment as an “AVAA assessment”—was improperly imposed because the district court failed to consider the statutory factors applicable to assessments under 18 U.S.C. § 2259A, and because the amount exceeded the statutory maximum for such assessments.
  2. The restitution award itself was defective, both substantively (including awards to victims who did not request restitution) and procedurally (alleged lack of information and findings to support the amounts awarded under Paroline and the AVAA).

The Sixth Circuit largely rejected Black’s arguments but ordered a limited remand to correct two specific errors: (1) the inclusion of restitution for three victims who had not requested it, and (2) the mislabeling in the written judgment of the $152,000 restitution as an AVAA “assessment.”

II. Summary of the Opinion

The panel (Judges McKeague, Griffin, and Mathis, with Judge Mathis writing) reached several key conclusions:

  1. Oral sentence controls; written judgment cannot transform restitution into an assessment. The district court clearly characterized the $152,000 as AVAA restitution at the sentencing hearing. Under Sixth Circuit precedent, the oral sentence is the operative sentence, and a conflicting written judgment is a “nullity.” The court therefore treated the $152,000 as restitution under 18 U.S.C. § 2259, not as an assessment under § 2259A.
  2. Standard of review: plain error applies. Because Black responded to the district court’s Bostic inquiry with only a generalized objection—invoking “all” previously stated objections without specifying restitution-related grounds—the Sixth Circuit held that his challenges to restitution were not properly preserved. Plain-error review therefore governed.
  3. Mandatory restitution for child-pornography “trafficking” offenses under the AVAA. Black’s convictions under 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B) qualified as “trafficking in child pornography” within 18 U.S.C. § 2259(c)(3), making restitution mandatory under § 2259(b)(4)(A). The district court was required to:
    • determine the full amount of each victim’s losses, and
    • order restitution that reflects Black’s “relative role in the causal process” underlying those losses, with each victim entitled to at least $3,000.
  4. Restitution to victims who did not request it was improper. The government conceded that three victims—identified as 8KIDS6, 8KIDS_0, and Teal&Pink Princess 1 (Raven)—had not requested restitution, and thus should not have received it. The Sixth Circuit vacated the restitution awards to those three victims and remanded to allow the district court to correct this error.
  5. No plain error in restitution to the remaining victims. As to all other victims, the court held that:
    • The district court relied on victim impact statements, the government’s sentencing memorandum (describing requested restitution for each victim), and the Presentence Investigation Report (PSR).
    • The judge stated on the record that he was aware of the victim impact and had reviewed the restitution requests, even offering to read the victims’ names, statements, and award amounts into the record—which Black declined.
    • Given Black’s failure to contest the amounts at sentencing, the district court was not required to make more detailed factual findings, and any failure to do so did not constitute plain error.
  6. Limited remand. The Sixth Circuit:
    • affirmed Black’s sentence in all other respects,
    • vacated the sentence in part, to the extent of the improper restitution awards, and
    • remanded with instructions to (a) remove restitution for the three non-requesting victims and (b) correct the written judgment’s mislabeling of AVAA restitution as an AVAA assessment.

III. Detailed Analysis

A. Characterizing the $152,000: Restitution vs. AVAA Assessment

1. The primacy of the oral sentence

Black’s principal framing argument turned on the label in the written judgment: it described the $152,000 as an AVAA “assessment.” Black then argued that:

  • if the payment was an assessment under 18 U.S.C. § 2259A, the statutory maximum for assessments was exceeded; and
  • the district court did not consider the mandatory statutory factors governing assessments.

The Sixth Circuit began by reaffirming a core sentencing principle: the orally pronounced sentence controls over a conflicting written judgment.

  • Due process and presence at sentencing. Citing United States v. Gagnon, 470 U.S. 522, 526 (1985), and Fed. R. Crim. P. 43(a)(3), the court emphasized the defendant’s right to be present at sentencing. In United States v. Hayden, 102 F.4th 368, 371 (6th Cir. 2024), the Sixth Circuit explained that oral sentencing reflects the seriousness of criminal punishment and ensures the process is not conducted “in secret.”
  • Oral sentence is the sentence; conflicting written judgment is a nullity. Relying on United States v. Shaw, 139 F.4th 548, 552–53 (6th Cir. 2025), the panel reiterated that “the sentence that a district court announces from the bench in the defendant’s presence is the sentence,” and that a written judgment that conflicts with that oral sentence “is a nullity.” A written judgment may be consulted only to clarify an ambiguous oral sentence—not to contradict an unambiguous one.

Here, the oral record was clear and unambiguous. During the sentencing hearing, the district court repeatedly referred to the $152,000 as:

  • “restitution,” and
  • “AVAA restitution,”

and explained that it was:

  • “mandatory if appropriately made,” and
  • “to be applied in no less than $3,000 per victim,”

with the “myriad materials” before the court supporting the resulting total of $152,000.

Thus, any contrary description in the written judgment could not recharacterize the financial obligation as an assessment. The court deemed the written mislabeling a clerical-type error to be corrected on remand but not a substantive basis for reversal.

2. Restitution vs. AVAA assessment: why the distinction matters

The decision underscores the critical difference between:

  • Restitution under 18 U.S.C. § 2259 (as amended by the AVAA) – a compensatory payment that goes directly to identified victims to cover their losses; and
  • Assessments under 18 U.S.C. § 2259A (the AVAA “special assessment”) – a penal financial obligation (a kind of surcharge) paid to government funds to assist child pornography victims more generally, subject to statutory caps and factor-based considerations.

Among other distinctions:

  • Restitution (§ 2259):
    • Mandatory for qualifying offenses.
    • Not subject to a traditional statutory maximum; limited only by the proof of victims’ losses and the defendant’s relative role.
    • Must reflect the victim’s actual or reasonably projected losses and the defendant’s relative causal role in those losses.
  • AVAA assessment (§ 2259A):
    • Statutorily capped per count.
    • Requires consideration of enumerated factors (such as the defendant’s income, earning capacity, and financial resources).
    • Is similar in function to other special assessments and surcharges (e.g., under 18 U.S.C. §§ 3013, 3014).

By holding that the $152,000 was restitution under § 2259, the court sidestepped Black’s arguments about statutory-maximum and factor-consideration requirements applicable to § 2259A assessments. The key legal principle reaffirmed here is that labels in the written judgment cannot override the substance of the oral pronouncement, especially where that pronouncement unmistakably invokes the restitution regime and its specific statutory features (e.g., “no less than $3,000 per victim”).

B. Standard of Review: The Bostic Question and Plain Error

1. The Bostic protocol

In the Sixth Circuit, United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), requires district courts, after announcing sentence, to ask whether the parties have any objections not previously raised that the court must address. This “Bostic question” is designed to:

  • give the parties a final opportunity to put specific objections on the record, and
  • allow the district court to correct errors in real time, minimizing the need for appellate intervention and enhancing the record for review.

In Black’s case, when asked, defense counsel responded that he wished to “maintain an objection under Bostic [to] maintain all of his appellate rights,” and then—after the prosecutor sought clarification—asserted objections to “all the grounds” the government outlined (substantive reasonableness, procedural reasonableness, and statutory enhancement), but without any targeted restitution objection.

2. Generalized objections and Simmons: why plain error applied

The court applied United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), which holds that:

“When a party answers the Bostic question in the affirmative, but at such a high degree of generality that the district court has no opportunity to correct its purported error and the court of appeals has been deprived of a more detailed record to review, plain-error review applies.”

Because Black did not specifically object to:

  • the AVAA restitution framework,
  • the categorization of the $152,000 as restitution, or
  • the amounts or bases for restitution to particular victims,

the panel held that he failed to preserve those issues. Consequently, the governing standard was plain errorGreer v. United States, 593 U.S. 503, 507–08 (2021).

3. The plain-error standard

Under Greer (and long-standing Supreme Court doctrine), plain error requires showing:

  1. an error,
  2. that is “plain” (clear or obvious under current law),
  3. that affects the defendant’s substantial rights (usually meaning it affected the outcome), and
  4. that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The Sixth Circuit’s application of this demanding standard made a decisive difference. Even if the restitution record could be critiqued as sparse in some respects, the lack of a specific contemporaneous objection meant that:

  • any deficiencies had to be not only erroneous but also clearly so and outcome-determinative, and
  • the appellate court would give substantial leeway to the district court’s handling of factual detail and evidentiary bases for restitution.

This reinforces for practitioners that generic Bostic answers are effectively treated as no objection at all for purposes of preserving sentencing issues—especially restitution challenges that require a developed record.

C. Restitution Under the AVAA for Child-Pornography “Trafficking” Offenses

1. Mandatory restitution and statutory framework

Black’s convictions were for:

  • knowingly accessing an internet chatroom with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 1), and
  • receiving visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2) (Count 2).

Under 18 U.S.C. § 2259(c)(3), these offenses qualify as “trafficking in child pornography,” which triggers the AVAA’s mandatory restitution regime.

Section 2259(b)(4)(A) provides that restitution is mandatory for defendants convicted of such trafficking offenses. The statute directs that:

  1. The court must determine “the full amount of the victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.” § 2259(b)(2)(A).
  2. The court must then “order restitution in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses.” § 2259(b)(2)(B).
  3. Each victim is entitled to at least $3,000, regardless of the defendant’s precise level of contribution to the victim’s total losses. § 2259(b)(2)(B), (c).

The AVAA thus codifies and refines the Paroline framework, preserving both:

  • the requirement that the restitution amount as to each defendant reflect relative causation, and
  • a statutory floor per victim.

2. Victims who did not request restitution

An important aspect of the decision—though addressed only briefly—is the treatment of victims who did not request restitution. The government conceded that restitution had been awarded to three victims (8KIDS6, 8KIDS_0, and Teal&Pink Princess 1 (Raven)) who had not themselves requested restitution. On that basis alone, the Sixth Circuit held:

  • those victims were not entitled to restitution in this case; and
  • the restitution awards as to those three victims must be vacated on remand.

Although the panel did not engage in a lengthy statutory exegesis here, the logic aligns with the AVAA’s structure, which generally presupposes:

  • identifiable victims,
  • loss calculations grounded in victim submissions (declarations, affidavits, or impact statements), and
  • some form of request or expression of intent to obtain restitution.

The practical takeaway is that in the Sixth Circuit, courts should not award AVAA restitution to purported victims who have not sought it, and the government should ensure the record clearly reflects which victims have submitted restitution requests.

D. Adequacy of the District Court’s Factual Findings and the Role of the Record

1. The Sexton standard: “adequate factual findings” when amounts are disputed

Ordinarily, under United States v. Sexton, 894 F.3d 787, 801 (6th Cir. 2018), a district court must make “adequate factual findings” when calculating restitution. This usually means:

  • identifying the victims,
  • describing the nature and scope of their losses, and
  • explaining how the court arrived at the amounts awarded.

However, Sexton also recognizes a significant qualification:

“But when a defendant does not dispute the amount of restitution, the district court need not make more specific factual findings. A district court thus does not plainly err as a result of failing to make such findings.”

Black’s case fit within this qualification. He did not, at sentencing:

  • contest the total amount of $152,000,
  • challenge any particular victim’s entitlement, or
  • object to any specific figure assigned to a given victim.

As a result, the Sixth Circuit concluded that the district court’s failure to break down the restitution amounts on the record, victim by victim, did not amount to plain error.

2. Evidence relied upon by the district court

The record showed that the district court based its restitution determination on:

  • victim impact statements,
  • the government’s sentencing memorandum detailing the restitution requests of each victim, and
  • the Presentence Investigation Report (PSR), which echoed those requests.

At the sentencing hearing, the court explicitly:

  • acknowledged being “aware of the victim impact” in the case,
  • noted that “the particular restitution requests are referenced not only in the government’s memo, but also in [the PSR],” and
  • offered to read the victims’ names, statements, and award amounts into the record—which defense counsel declined.

In this context, the appellate court held that:

  • the materials before the district court adequately supported the restitution amounts; and
  • the record did not reveal any facially unreasonable awards (aside from the three non-requesting victims conceded by the government).

3. Goodin and tacit agreement to restitution estimates

The panel invoked United States v. Goodin, 815 F. App’x 860, 866 (6th Cir. 2020), which held that:

  • a defendant’s failure to challenge restitution calculations at sentencing suggests that he “agreed the estimates were appropriate reflections of his ‘relative role’” under Paroline, and
  • where the restitution amounts “appear[] facially reasonable,” an appellate court will not find plain error.

Applying those principles, the court concluded that any gaps in the district court’s explicit discussion of Paroline factors or causation did not rise to the level of clear or outcome-determinative error under the plain-error standard.

E. Paroline and Relative Causation in AVAA Restitution

1. Overview of Paroline

Paroline v. United States, 572 U.S. 434 (2014), addressed how much restitution a defendant who merely possesses child pornography should pay in relation to the victim’s total losses. The Supreme Court rejected:

  • a rule requiring the defendant to pay all of the victim’s losses (which would be disproportionate given the myriad other offenders also contributing to the harm); and
  • a rule requiring proof of but-for causation in the ordinary sense (which would often make restitution impossible).

Instead, the Court instructed that district courts should:

  • order restitution in an amount that “comports with the defendant’s relative role in the causal process that underlies the victim’s general losses,” and
  • use “rough guideposts” to approximate a fair contribution, including:
    • the number of offenders involved,
    • whether the defendant distributed or produced images,
    • whether the defendant had any role in creating the initial images, and
    • how many images of the victim the defendant possessed.

The Supreme Court emphasized that it was “neither necessary nor appropriate to prescribe a precise algorithm” for determining the correct restitution amount.

2. AVAA codification and Black’s challenge

The AVAA effectively codifies Paroline in § 2259(b)(2)(B) by requiring restitution that reflects each defendant’s “relative role.” Black argued that the district court lacked sufficient information related to all of the Paroline factors, and thus could not properly calibrate his relative responsibility.

The Sixth Circuit responded in two ways:

  1. The statute and Paroline do not demand exhaustive factor-by-factor analysis. Relying on Paroline’s own admonition that detailed algorithms are neither required nor appropriate, the panel noted that district courts may consider a “variety of factors” and have substantial discretion so long as they aim to reflect the defendant’s relative role.
  2. Any deficiency was not plain error given Black’s silence below. Because Black did not challenge:
    • the factual underpinnings of the victim loss estimates, or
    • the application of Paroline guideposts to his conduct,
    the Sixth Circuit, echoing Goodin, treated his silence as tacit acceptance of the district court’s approach. On the appellate record, the restitution awards were “facially reasonable,” which foreclosed any finding of clear or outcome-determinative error.

Thus, Black reinforces a practical point: in the AVAA/Paroline context, the absence of a specific, contemporaneous objection severely limits a defendant’s ability to challenge the sufficiency of the causation analysis or the granularity of fact-finding on appeal.

F. Correction of the Written Judgment and Scope of Remand

Finally, the Sixth Circuit addressed two concrete errors in the written judgment:

  1. Mislabelling of restitution as an AVAA assessment. Because the oral sentence clearly imposed $152,000 in AVAA restitution, the contrary label in the written judgment (suggesting an assessment) was erroneous. The panel ordered the district court to correct this to conform the written record to the oral pronouncement.
  2. Inclusion of three victims who did not request restitution. In light of the government’s concession that three identified victims had not requested restitution—and thus were not entitled to it—the court vacated the restitution award only as to those victims and instructed the district court to remove them from the restitution portion of the judgment.

Importantly, the court did not order a full resentencing. Rather, it issued a limited remand:

  • the 210-month term of imprisonment stands,
  • the remaining restitution awards remain intact, and
  • only the specified corrections to the written judgment and victim list are authorized.

IV. Complex Concepts Simplified

For non-specialists, the following clarifications may be useful.

1. Restitution vs. assessments

  • Restitution is money paid by the defendant directly to victims to compensate them for their financial losses (e.g., therapy, lost income, medical costs).
  • Assessments (including AVAA and JVTA assessments) are additional financial penalties, usually paid to the government or designated funds, intended to support victim services in a broader sense rather than compensating individual victims for their own losses.

In Black, the key dispute was whether $152,000 was restitution (compensatory, with no strict cap) or an assessment (penal, with statutory caps and required considerations). The Sixth Circuit held it was restitution.

2. Plain-error review

  • A defendant who does not clearly and specifically object at sentencing is usually limited to plain-error review on appeal.
  • Under this standard, the defendant must prove not only that the district court was wrong, but that:
    • the error was obvious under existing law,
    • it likely changed the outcome, and
    • it seriously undermines the fairness or integrity of the judicial process.
  • This is significantly harder to satisfy than ordinary appellate review.

3. Bostic questions

  • After pronouncing sentence, district courts in the Sixth Circuit must ask: “Do you have any objections to the sentence that have not previously been raised?”
  • Defense counsel must then state any specific disagreements (e.g., “We object to the amount of restitution and the lack of factual findings.”).
  • A vague statement like “We maintain all objections” is not enough to preserve issues for standard appellate review.

4. Paroline and “relative role” in victim losses

  • In child-pornography cases, each victim’s total harm is caused by thousands of offenders worldwide who possess, distribute, and perhaps produce the images.
  • Paroline and the AVAA require courts to estimate how much one defendant should reasonably pay, based on his particular conduct (how many images he had, whether he distributed them, etc.).
  • Courts have flexibility; they do not need to compute exact percentages or apply a rigid formula.

5. Non-publication and precedential value

  • This opinion is marked “NOT RECOMMENDED FOR PUBLICATION,” which generally means it is unpublished and not binding precedent under the Sixth Circuit’s internal rules.
  • Nonetheless, it can be cited as persuasive authority and reflects how the Sixth Circuit currently applies existing precedent to similar issues.

V. Impact and Practical Implications

1. For district judges

  • Clarity at oral sentencing is critical. Judges should:
    • clearly label each monetary component (restitution, AVAA assessment, JVTA assessment, standard special assessment),
    • state the statutory basis, and
    • articulate, at least briefly, the materials relied upon in determining restitution (PSR, victim statements, government submissions).
  • Written judgments must conform to the oral pronouncement. Any mismatch risks confusion and unnecessary appeals; Black shows the appellate court will correct such mismatches but treat them as clerical when oral clarity exists.
  • Victim requests matter. Before awarding AVAA restitution, the court should ensure that the record reflects a request from each victim to whom restitution is awarded.

2. For prosecutors

  • Document victim requests clearly. The government should:
    • obtain and file victim declarations or impact statements including specific restitution requests,
    • ensure that each victim identified in restitution schedules has, in fact, requested restitution, and
    • highlight these in the sentencing memorandum and PSR.
  • Be precise about statutory bases. Sentencing submissions should distinguish restitution under § 2259 from assessments under §§ 2259A and 3014 to avoid confusion.
  • Consider strategic concessions. As in Black, conceding clear errors (e.g., restitution awarded to non-requesting victims) can limit remand to a narrow correction without undermining the entire sentence.

3. For defense counsel

  • Engage restitution calculations early and specifically. Counsel should:
    • review victim impact statements, the PSR, and the government’s restitution calculations in detail,
    • file written objections to specific restitution amounts and victims where warranted, and
    • propose alternative figures or challenge causation where the evidence is weak.
  • Use the Bostic opportunity effectively. When asked by the district court after sentencing, counsel should specifically say, for example: “Yes, Your Honor, we object to the restitution award on the grounds that the court did not make adequate factual findings and that certain victims either did not request restitution or lack a causal connection to Mr. Black’s conduct.”
  • Check for oral–written discrepancies. Counsel should compare the written judgment with the oral pronouncement and, if a discrepancy arises (e.g., a mislabeling of restitution as an assessment), seek correction in the district court.

4. For victims and victim advocates

  • Requests for restitution are essential. Black underscores that in practice, courts may not award AVAA restitution to victims who do not affirmatively request it, at least in the Sixth Circuit’s approach.
  • Detailed statements can influence outcomes. Victim impact statements that describe specific financial losses (therapy, future treatment needs, lost wages) and the ongoing harm from widespread dissemination of images will form the backbone of restitution awards.

VI. Conclusion

United States v. Black is a non-precedential but instructive decision clarifying the handling of AVAA restitution in child-pornography cases within the Sixth Circuit. It reinforces several important principles:

  1. Oral pronouncement controls. The sentencing court’s oral characterization of a financial obligation as “AVAA restitution” governs, even if the written judgment mislabels it as an “assessment.” Written discrepancies will be treated as nullities and corrected to conform to the oral sentence.
  2. Specificity at sentencing preserves rights. Defendants who wish to challenge restitution must do more than generically “maintain objections” under Bostic. Without specific, on-the-record objections, only the demanding plain-error standard applies on appeal.
  3. AVAA restitution is mandatory but structured by relative causation. For child-pornography trafficking offenses, restitution under § 2259 is mandatory and must reflect each defendant’s relative role in causing the victim’s losses, drawing on the Paroline framework. Courts are not bound to a rigid formula, and undisputed restitution amounts, supported by the PSR and victim impact statements, will typically be upheld.
  4. Victim requests are a practical prerequisite. Where victims do not request restitution, courts should not award it under the AVAA; if they do, such awards are vulnerable to correction on appeal, as happened for three victims in Black’s case.

In the broader context of federal sentencing and victims’ rights, Black confirms that precise sentencing records, careful classification of financial penalties, and meaningful participation by all parties at the sentencing hearing are essential to ensuring both fairness to defendants and meaningful enforcement of victims’ restitution rights under the AVAA.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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