United States v. Rubalcava: Special‑Needs Trusts and Home Equity as “Financial Resources” for AVAA Assessments

I. Introduction

In United States v. Rubalcava, No. 24‑40463 (5th Cir. Dec. 3, 2025), the Fifth Circuit affirmed a lengthy sentence, restitution order, and substantial monetary assessments imposed on a defendant convicted of sexual exploitation of his minor daughter and stepdaughter and possession of child pornography he produced. While most of the opinion applies existing sentencing and restitution doctrine to very disturbing facts, it makes an especially important contribution in clarifying how courts may treat a defendant’s assets—particularly a special‑needs spendthrift trust and home equity—when imposing special assessments under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (“AVAA”), 18 U.S.C. § 2259A.

The court holds that a defendant’s beneficial interest in a special‑needs trust, and his equity in a residence, can be treated as “financial resources” under 18 U.S.C. § 3572(a) when deciding the amount of an AVAA assessment, even if those assets may be difficult or impossible for the government to reach directly through liens or execution. The court also reaffirms several important sentencing guideline doctrines in child exploitation cases:

• what qualifies as “sadistic or masochistic conduct” under U.S.S.G. § 2G2.1(b)(4)(A);
• what constitutes “force” under 18 U.S.C. § 2241(a) for purposes of U.S.S.G. § 2G2.1(b)(2)(B);
• when the cross‑reference from § 2G2.2 to § 2G2.1 applies; and
• how future counseling costs may be proved for restitution under 18 U.S.C. § 2259.

This commentary analyzes the decision’s background, key holdings, doctrinal foundations, and likely impact on future criminal sentencing and restitution practice, particularly where defendants hold assets in protective trusts.

II. Summary of the Opinion

The defendant, Ulysses Rubalcava, pleaded guilty (without a plea agreement) to:

• one count of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B); and
• two counts of sexual exploitation of children (production), 18 U.S.C. § 2251(a).

The Presentence Investigation Report (“PSR”) calculated an adjusted offense level of 50, capped at 43 under the Guidelines, with a criminal history category I. This produced a guideline range of life imprisonment, capped by statutory maxima of 240 months (possession) and 360 months (each production count). The district court imposed concurrent sentences of 240 and 360 months (30 years), followed by supervised release, and ordered:

• $10,000 in restitution ($5,000 per victim) under 18 U.S.C. § 2259;
• $15,000 in Justice for Victims of Trafficking Act assessments (JVTA), 18 U.S.C. § 3014 ($5,000 per count);
• $30,000 in AVAA assessments under 18 U.S.C. § 2259A ($10,000 per count); and
• $300 in standard special assessments under 18 U.S.C. § 3013.

Total criminal monetary penalties: $55,300.

On appeal, Rubalcava challenged:

1. the $10,000 restitution order;
2. the $30,000 AVAA assessment, particularly the consideration of his special‑needs trust and residence as financial resources;
3. a four‑level “sadistic or masochistic” enhancement under U.S.S.G. § 2G2.1(b)(4)(A);
4. a four‑level “force” enhancement under U.S.S.G. § 2G2.1(b)(2)(B);
5. the cross‑reference from U.S.S.G. § 2G2.2(c)(1) to § 2G2.1; and
6. the resulting guideline calculation and concurrent 240/360‑month sentences.

The Fifth Circuit (Judge Carl E. Stewart, joined by Judges Smith and Haynes) affirmed in full. It held:

• the restitution amount was supported by competent evidence of reasonably foreseeable future counseling costs;
• the district court did not clearly err in considering the defendant’s residence and the special‑needs trust as “financial resources” for AVAA assessment purposes under 18 U.S.C. § 3572;
• the “sadistic or masochistic” and “force” enhancements and the production cross‑reference were properly applied; and
• even assuming any guideline error, it would be harmless because the defendant’s offense level would still produce a life guideline range.

III. Detailed Analysis

A. Factual and Procedural Background

The facts are egregious and drive much of the court’s sentencing analysis. In June 2021, the defendant’s then‑wife, Jazmine, found him in the bedroom of his eleven‑year‑old stepdaughter (Mary Doe), between her legs, attempting to pull down her pants. On searching his phone, she discovered numerous images of him sexually abusing their eight‑year‑old daughter (Jane Doe). Both children later reported in forensic interviews that:

• the abuse began when Jane was around five and Mary was around nine or ten;
• the abuse occurred weekly and involved:
  • oral sex forced on both children;
  • penetration of Jane’s genitals and mouth with the defendant’s penis;
  • penetration of Jane’s genitals and anus with a “pink toy”; and
  • other forms of sexual assault;
• the defendant photographed and video‑recorded the abuse;
• he forced them to watch recordings of their own abuse and other pornography; and
• they experienced physical pain and repeatedly asked him to stop, but he refused.

A forensic examination of his devices revealed 194 images and one video of his abuse of Jane and Mary. He admitted the sexual acts and acknowledged photographing and recording the children.

Financially, the PSR indicated:

• a vehicle worth about $5,000;
• a residence valued around $230,000, with equity of about $57,848; and
• a special‑needs trust at Cadence Bank, with a then‑current valuation of approximately $228,363.40 (and a higher overall asset valuation noted in a statement).

The trust arose from a personal‑injury settlement after a car accident when the defendant was a minor. It was established by court order (2004/2005) as a spendthrift / special‑needs trust for his sole benefit. The trust document also contained spendthrift language barring assignment and attachment by creditors.

The defendant argued he lacked control over the trust: distributions required trustee approval, and the assets could be used only for his “special needs.” The PSR and the probation officer’s commentary, however, indicated he was the primary beneficiary and entitled to recover the principal; moreover, defense counsel conceded that trustee‑approved distributions had been used to purchase a family van and the home.

The district court overruled his objections, adopted the PSR’s findings, and imposed guideline‑range concurrent sentences (capped by statutory maxima). It initially reserved ruling on restitution and AVAA assessments, requested briefing, and then imposed the monetary penalties at a later continued sentencing hearing.

B. Issues on Appeal

The appeal presented six principal sentencing issues:

1. Restitution: Did the government carry its burden of proving the “full amount” of the victims’ losses under 18 U.S.C. § 2259, particularly future counseling costs, sufficient to justify $5,000 per victim?
2. AVAA assessments: Did the district court misapply the factors in 18 U.S.C. §§ 3553(a) and 3572 when it imposed $10,000 per count under § 2259A, especially by treating the special‑needs trust and residence as financial resources?
3. Sadistic/masochistic enhancement (U.S.S.G. § 2G2.1(b)(4)(A)): Did the offense “involve material that portrays sadistic or masochistic conduct or other depictions of violence”?
4. Force enhancement (U.S.S.G. § 2G2.1(b)(2)(B)): Did the offense involve a “sexual act” accompanied by “conduct described in 18 U.S.C. § 2241(a) or (b)”—i.e., force or certain forms of threats?
5. Cross‑reference (U.S.S.G. § 2G2.2(c)(1)): Did Count One (possession) “involve[ ] causing [or permitting] a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction,” thereby triggering § 2G2.1?
6. Overall guideline calculation and sentence length: If any enhancements or cross‑references were erroneous, did they affect the applicable guideline range or the substantive reasonableness of the concurrent 240/360‑month sentences?

C. Restitution Under 18 U.S.C. § 2259

1. Statutory framework

Section 2259, as amended by the AVAA and related legislation, mandates restitution for child exploitation offenses. Key features:

• Restitution is mandatory (“shall order restitution”), 18 U.S.C. § 2259(a).
• The order must cover “the full amount of the victim’s losses,” § 2259(b)(1).
• “Losses” expressly include:
  • psychiatric and psychological care;
  • medical and rehabilitation costs; and
  • any other losses “proximately” caused by the offense.
• The government bears the burden of proving the losses by a preponderance of the evidence, via 18 U.S.C. §§ 3663A, 3664.
• For child‑pornography victims, once total losses are determined, the court must order restitution that reflects the defendant’s relative causation, but “no less than $3,000” per victim. § 2259(b)(2)(B).

The Fifth Circuit reviews the legality of a restitution order de novo, and the amount for abuse of discretion (United States v. Villalobos, 879 F.3d 169, 171–72 (5th Cir. 2018)).

2. Evidence and district court’s reasoning

At a dedicated restitution hearing, the district court focused on whether the record would support more than the $3,000 statutory minimum per victim. The government:

• conceded that the minors had not yet begun counseling, partly due to reluctance to revisit their trauma;
• submitted:
  • a detailed victim impact statement by the mother describing profound emotional harm; and
  • a memorandum from a licensed professional counselor estimating that each child would need:
    • weekly one‑hour therapy for one year, then
    • bi‑weekly treatment thereafter,
    at $120 per hour, producing an estimated future counseling cost of $9,360 per child, or $18,720 total.

Acknowledging this evidence and the PSR’s description of the abuse, the district court reasoned that:

• the children will “inevitably” need substantial therapy to address their trauma;
• there may also be medication costs and other treatment expenses; and
• given the evidence, an award of $5,000 per victim is an appropriately conservative estimate of reasonably foreseeable counseling and related costs.

3. Fifth Circuit’s holding on restitution

The Fifth Circuit affirmed, emphasizing:

• Restitution “need not be exact” but must rest on an application of law, not “caprice” (Villalobos; Paroline v. United States, 572 U.S. 434, 461 (2014)).
• The counselor’s memorandum provided “enough evidence to estimate the victim’s losses with some reasonable certainty” (United States v. Etheridge, 2023 WL 5347294, at *4 (5th Cir. Aug. 21, 2023)).
• Combined with the victim impact statements and PSR, the evidence supported a finding that reasonably projected counseling costs would exceed $5,000 per child.

Accordingly, the court concluded the district court did not abuse its discretion in setting restitution at $5,000 per victim (above the $3,000 statutory floor, below the specific estimate of $9,360 per child).

D. AVAA Assessments and the Meaning of “Financial Resources”

1. AVAA statutory structure

The AVAA, 18 U.S.C. § 2259A, creates an additional, mandatory financial assessment for certain child pornography offenses, separate from restitution and ordinary special assessments. Key points:

• For possession offenses (like § 2252A(a)(5)(B)), courts must assess “not more than $17,000” per count. § 2259A(a)(1).
• For “child pornography production” offenses (like § 2251(a)), courts must assess “not more than $50,000” per count. § 2259A(a)(3).
• Unlike restitution, AVAA assessments:
  • do not go to a particular victim;
  • are deposited into the “Child Pornography Victims Reserve,” § 2259B; and
  • do not require proof of individual victim losses (United States v. Madrid, 978 F.3d 201, 206 (5th Cir. 2020)).
• In setting the assessment amount, the court must consider the factors in:
  • 18 U.S.C. § 3553(a) (sentencing factors: nature of offense, history and characteristics, deterrence, etc.); and
  • 18 U.S.C. § 3572 (fine‑related factors, including the defendant’s “income, earning capacity, and financial resources,” the burden of payment, and restitution obligations).

The district court imposed $10,000 per count ($30,000 total), well within the statutory maxima (17k + 50k + 50k = 117k possible).

2. The contested issue: can a special‑needs trust and home equity be counted as “financial resources”?

Rubalcava’s core argument was that he:

• had no unilateral control over the trust corpus (distributions required trustee approval);
• could not assign or encumber the trust assets; and
• therefore, the trust funds and his home should not be treated as available “financial resources” for § 3572 purposes.

He relied on:

• the trust document’s spendthrift provisions; and
• In re Bass, 171 F.3d 1016 (5th Cir. 1999), where the Fifth Circuit held that a court could not interfere with trustees’ discretionary powers over a spendthrift trust to benefit creditors in a bankruptcy context.

The government responded that:

• the only trust document in the record was unsigned, and there was ambiguity as to whether the trust still legally existed (it appeared to have a dissolution‑at‑age‑25 clause);
• even assuming the trust survived, the defendant was its primary beneficiary and had repeatedly obtained distributions—used to purchase a van and the family residence—demonstrating real, practical access;
• home equity plainly constitutes a “financial resource” for § 3572 purposes, regardless of how readily a criminal fine could be executed against it; and
• the district court did not order payment from the trust or home; it simply considered them in evaluating the defendant’s ability to pay.

3. Standard of review

For preserved challenges to AVAA assessments:

• factual findings (e.g., whether an asset is a financial resource) are reviewed for clear error; and
• legal questions (e.g., interpretation of § 3572) are reviewed de novo.

A finding is clearly erroneous only if the appellate court is left with a “definite and firm conviction that a mistake has been committed” (United States v. Odom, 694 F.3d 544, 547 (5th Cir. 2012)).

4. Treatment of home equity as a financial resource

At the continued sentencing hearing, defense counsel stated that:

• the marital home was being sold in the pending divorce; and
• proceeds from that sale could “potentially” be used to satisfy the monetary penalties the government sought.

The PSR showed approximately $57,848 in equity in the home. The district court explicitly relied on this equity as one of the resources relevant to the AVAA assessment. The Fifth Circuit held this was proper:

• Home equity is a classic “financial resource” under § 3572(a)(1).
• Even if state law or marital‑property rules complicate collection, the home’s value can be considered in setting the amount of a criminal fine or assessment.

The court cited the Fourth Circuit’s United States v. Gresham, 964 F.2d 1426 (4th Cir. 1992), which upheld treating a jointly‑owned residence as a financial resource in setting a fine, even though state law might limit enforcement against that property. Gresham articulated an important principle the Fifth Circuit effectively adopts:

“The government's inability to collect a fine from a defendant because of the defendant's inability to transfer an asset in payment of the fine does not affect the legitimacy of the fine.”

5. Treatment of the special‑needs trust as a financial resource

On the trust, the Fifth Circuit’s reasoning is the opinion’s most significant doctrinal development.

The record established:

• the trust was “for the benefit of Ulysses Rubalcava and for no one else”;
• the trust was “set aside for Mr. Rubalcava’s needs”;
• he had repeatedly requested distributions (for a van, for a home, etc.); and
• trustees had historically approved and made those distributions.

Defense counsel’s argument at both sentencing hearings was essentially:

• the trust’s purpose is to fund the defendant’s needs, not those of creditors; and
• spendthrift features and trustee discretion shield the corpus from collection for criminal fines.

The Fifth Circuit agreed that the trust was designed for the defendant’s benefit. But far from undermining the government’s position, that fact supported treating the trust as one of his financial resources:

• Rubalcava clearly had functional access to trust funds via discretionary distributions.
• Distributions had historically been used for substantial purchases (home, vehicle), not mere medical necessities.
• Whether the government could place a lien on the trust or compel trustees to pay was not the relevant question for § 3572; the question was whether the trust, in reality, was part of his financial wherewithal.

Crucially, the Fifth Circuit distinguished In re Bass, 171 F.3d 1016 (5th Cir. 1999). In Bass, the court held that a bankruptcy court could not interfere with trustees’ discretionary powers over a spendthrift trust by requiring them to give advance notice of distributions so creditors could intercept them. That case addressed:

• bankruptcy and creditor‑collection law,
• trustee discretion, and
• direct interference with trust administration.

By contrast, in Rubalcava:

• the sentencing court did not order the trustee to distribute anything;
• it did not purport to attach or encumber the trust corpus; and
• it merely treated the defendant’s beneficial interest and practical access as a “financial resource” under § 3572 in deciding how large an assessment to impose.

The Fifth Circuit thus held that, on this record, it was not clear error for the sentencing court to count the special‑needs trust as part of the defendant’s financial resources.

Even assuming arguendo that this was error, the court added an alternative holding: any such error would be harmless. The equity in the home (~$57,848) and the vehicle (~$5,000), standing alone, were sufficient to support total monetary penalties of $55,300. Thus, the panel was not left with a “definite and firm conviction” that a mistake had been made.

6. Practical rule emerging from Rubalcava

The core new rule is functional rather than formal:

Courts may treat a defendant’s beneficial interest in a special‑needs or spendthrift trust, and non‑liquid assets such as home equity, as “financial resources” under 18 U.S.C. § 3572 when determining the amount of AVAA assessments (and, by extension, fines), even if:

• the defendant cannot freely assign or encumber the asset;
• a creditor may not be able to place a lien on the asset; or
• collection from that asset is legally constrained.

This aligns the Fifth Circuit with the broader principle articulated in Gresham: collection difficulties do not negate an asset’s status as a financial resource at sentencing.

E. Sentencing Guidelines Enhancements

1. Sadistic or masochistic conduct (U.S.S.G. § 2G2.1(b)(4)(A))

Section 2G2.1(b)(4)(A) requires a 4‑level increase if:

“the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence.”

Under Fifth Circuit precedent (United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017); United States v. McGavitt, 28 F.4th 571 (5th Cir. 2022)) the question is whether:

• an objective observer of the image would perceive the depicted conduct as causing the minor victim physical or emotional pain at the time of creation.

The focus is on what the images show, not:

• whether the defendant was seeking sexual gratification from causing pain; or
• the victim’s subjective experience (beyond what the image and corroborating evidence demonstrate).

The Fifth Circuit has repeatedly held this enhancement appropriate where:

• a young child is anally or vaginally penetrated, often by an adult male or a sexual device (Lyckman, 235 F.3d 234 (5th Cir. 2000); Canada, 110 F.3d 260 (5th Cir. 1997)); or
• a child is forced to orally copulate a parent, given the inherent humiliation and degradation (McGavitt and similar cases).

In Rubalcava, the images showed:

• oral sex forced on Jane and Mary;
• penetration of Jane’s genitals and anus with a sexual device;
• penetration with the defendant’s penis; and
• children reporting pain and repeatedly asking him to stop.

These facts fall squarely within prior case law: the sexual acts were “likely to cause pain in one so young” and were inherently degrading. The court thus affirmed the enhancement.

2. Force enhancement (U.S.S.G. § 2G2.1(b)(2)(B))

Section 2G2.1(b)(2)(B) adds 4 levels if the offense involved:

“the commission of a sexual act; and (ii) conduct described in 18 U.S.C. § 2241(a) or (b).”

Section 2241(a) defines aggravated sexual abuse by:

• using force to cause another person to engage in a sexual act; or
• threatening or placing the person in fear of death, serious bodily injury, or kidnapping.

The key question here was whether the defendant “used force.” Fifth Circuit precedent explains that:

• “Force” includes any “restraint sufficient to prevent the victim from escaping the sexual conduct” (United States v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998));
• Such force may be implied from “a disparity in size and coercive power between the defendant and his victim” (United States v. Simmons, 470 F.3d 1115, 1121 (5th Cir. 2006)); and
• Explicit threats, weapons, or physical injury are not required.

Although the defendant did not preserve an objection to this enhancement (triggering plain‑error review), the record made the presence of force clear:

• At re‑arraignment, the prosecutor described the conduct as “forced” oral sex and forced watching of pornographic videos and recordings; the defendant affirmed these facts as true.
• Both children reported that:
  • they asked him to stop, but he continued; and
  • Mary said he “would grab her head back and forth” while forcing oral sex.
• The disparity in size, age, and authority between an adult stepfather/father and two minor children further implied coercive force and inability to escape.

On these facts, the panel held there was no plain error in applying § 2G2.1(b)(2)(B).

3. Cross‑reference from § 2G2.2(c)(1) to § 2G2.1

Section 2G2.2(c)(1) provides that if:

“the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct … apply § 2G2.1.”

This cross‑reference effectively treats the possession offense as a production offense for guideline purposes when the defendant’s conduct involved causing minors to engage in sexually explicit conduct for the purpose of producing images.

Rubalcava argued that the district court did not make a sufficient inquiry into his intent or purpose when photographing the minors. But the evidentiary record was straightforward:

• The grand jury indictment on Counts Two and Three alleged sexual exploitation “for the purpose of producing a visual depiction,” and he pleaded guilty to those counts.
• He admitted:
  • performing oral sex on Jane and Mary;
  • photographing them naked with his smartphone;
  • transferring images to a desktop computer and creating folders to view them later; and
  • that the phone contained depictions of Jane performing sexual acts.

Those admissions satisfy the “purpose of producing a visual depiction” requirement. The Fifth Circuit cited United States v. Caudill, 427 F. App’x 301 (5th Cir. 2011), which upheld application of similar enhancements where a defendant took illicit photos while sexually abusing a child.

Because the defendant did not preserve an objection, the court reviewed for plain error and found none.

4. Harmlessness of any guideline calculation error

Even apart from upholding the enhancements and cross‑reference, the panel added a significant alternative holding on harmless error:

• With all enhancements, the adjusted offense level was 50, capped at 43.
• Rubalcava conceded that even if some enhancements were removed, his “corrected” offense level would still be at least 44—i.e., still above the cap.
• Either way, the guideline range is life imprisonment, constrained only by statutory maxima (240 and 360 months).

Thus, even had there been mistakes in applying some enhancements, they would not have changed the applicable guideline range, nor the permissible statutory sentence. Under United States v. Randall, 924 F.3d 790, 795 (5th Cir. 2019), a guideline error is harmless if it does not affect the defendant’s substantial rights—i.e., does not change the guideline range or the ultimate sentence.

Here, because any plausible recalculation still yields a life‑range recommendation, any guideline error would be harmless.

F. Precedents and Doctrinal Context

The opinion synthesizes and extends a number of precedents:

• Restitution and loss estimation
  • Paroline v. United States, 572 U.S. 434 (2014) – held that restitution for child pornography requires consideration of the defendant’s relative role in the victim’s losses; exact precision is not required, but awards must be grounded in evidence and law, not speculation.
  • United States v. Villalobos, 879 F.3d 169 (5th Cir. 2018) – confirmed that restitution orders under § 2259 need not be mathematically exact but must be based on a reasonable estimate; applied the Paroline framework.
  • United States v. Etheridge, 2023 WL 5347294 (5th Cir. 2023) – restated the standard that the government must provide enough evidence to estimate losses with “reasonable certainty.”
  • United States v. Reese, 998 F.2d 1275 (5th Cir. 1993) – general restitution principles on proof of loss estimation.
• Sadistic/masochistic enhancement
  • United States v. Canada, 110 F.3d 260 (5th Cir. 1997) – upheld the enhancement where images depicted penetration of a young child with sexual devices.
  • United States v. Lyckman, 235 F.3d 234 (5th Cir. 2000) – enhancement applied when sexual acts were likely to cause pain to very young victims.
  • United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017) – refined the objective‑observer test for pain or humiliation.
  • United States v. McGavitt, 28 F.4th 571 (5th Cir. 2022) – reiterated the objective‑observer standard and applied the enhancement to humiliating oral sex acts between a minor and parent.
• Force enhancement and § 2241
  • United States v. Lucas, 157 F.3d 998 (5th Cir. 1998) – defined “force” under § 2241 as restraint sufficient to prevent escape.
  • United States v. Simmons, 470 F.3d 1115 (5th Cir. 2006) – clarified that force can be implied from size/power disparity.
• AVAA assessments and financial resources
  • United States v. Madrid, 978 F.3d 201 (5th Cir. 2020) – held that AVAA assessments go to a reserve fund, not individual victims, so proof of victim loss is not required.
  • United States v. Gresham, 964 F.2d 1426 (4th Cir. 1992) – persuasive authority holding that an asset can be a “financial resource” even if the government may not be able to collect against it directly.
  • In re Bass, 171 F.3d 1016 (5th Cir. 1999) – limited the ability of courts to interfere with discretionary spendthrift trust distributions for creditor benefit in bankruptcy; distinguished here.
• Harmless guideline error
  • United States v. Randall, 924 F.3d 790 (5th Cir. 2019) – guideline error is harmless if it does not affect the ultimate sentence or guideline range (applying Fed. R. Crim. P. 52(a)).

Rubalcava uses these precedents to reinforce established principles in restitution and guideline application, while extending the AVAA/§ 3572 analysis into the realm of special‑needs and spendthrift trusts.

G. Impact and Practical Implications

1. For sentencing courts

The decision gives district courts in the Fifth Circuit wide latitude to:

• Look beyond liquid assets and wages when assessing a defendant’s “ability to pay” AVAA assessments and fines.
• Count:
  • home equity;
  • beneficial interests in trusts, including special‑needs or spendthrift trusts; and
  • other non‑liquid property;
  as “financial resources,” even if traditional creditor remedies would struggle to reach them.
• Impose AVAA assessments that, in combination with restitution and other assessments, approach the defendant’s total asset base, especially in grave offenses.

Judges should still:

• articulate on the record their consideration of § 3553(a) and § 3572 factors;
• consider the burden on the defendant and the need to preserve the ability to pay restitution, see 18 U.S.C. § 3572(b); and
• avoid direct orders aimed at trust trustees that would conflict with Bass‑type restrictions.

2. For defense counsel and defendants

Defense attorneys should draw several lessons:

• Trust structures will not automatically shield assets from consideration in criminal sentencing. If the defendant is a primary beneficiary and historically uses the trust to fund substantial personal expenditures, courts are likely to treat the trust as part of his financial resources.
• Collection vs. consideration: the fact that the government may not be able to garnish or attach an asset directly does not prevent the court from considering its value at sentencing.
• Preserve objections: Many of the guideline issues in Rubalcava were reviewed only for plain error because counsel failed to object below. In a case with such a high offense level, even a successful appellate argument may end up harmless.

3. For victims and prosecutors

Victims’ counsel and prosecutors gain:

• reaffirmation that future therapy and counseling needs can support meaningful restitution even before extensive treatment occurs, if supported by expert estimates; and
• a strong precedent to argue that defendants with substantial assets in protective vehicles (e.g., personal‑injury trusts, family trusts, home equity) are not “indigent” for AVAA purposes.

Prosecutors should still:

• obtain and document financial records carefully (including trust account statements, property records, valuations);
• introduce expert evidence (e.g., therapist estimates) to support restitution amounts; and
• frame AVAA assessment requests in light of both the severity of the offense and the defendant’s total financial picture.

4. For trust and estate planners

For lawyers designing special‑needs or spendthrift trusts, Rubalcava is a cautionary reminder that:

• even robust spendthrift and discretionary structures do not prevent criminal courts from treating a beneficiary’s interest as part of his financial resources for purposes of fines and assessments;
• while such structures may still afford protection from private creditors or bankruptcy claims, they are not a shield against all criminal monetary consequences; and
• courts will look to the practical realities of access and benefit, not merely formal restrictions in the trust instrument.

H. Simplified Explanations of Key Legal Concepts

1. AVAA assessment vs. restitution

• Restitution (§ 2259):
  • Money paid to the victims;
  • Must be tied to the victims’ actual or reasonably projected losses (e.g., therapy, medical care, lost income);
  • Requires proof and causation analysis.
• AVAA assessment (§ 2259A):
  • Additional penalty payable to the government’s Child Pornography Victims Reserve fund;
  • Does not depend on a specific victim’s quantified losses;
  • Amount is based on general sentencing and financial factors (severity of offense, defendant’s resources, etc.).

2. “Financial resources” under 18 U.S.C. § 3572

When a court imposes fines or AVAA assessments, it must consider:

• the defendant’s income (wages, salary, business income, etc.);
• earning capacity (future ability to earn, given education, skills, and—here—length of incarceration); and
• financial resources (all property, accounts, beneficial interests, and other assets that realistically add to his wealth).

“Financial resources” is broad. It includes real estate, vehicles, investment accounts, trust interests, and other property—not just cash.

3. Special‑needs and spendthrift trusts

• A special‑needs trust typically:
  • holds settlement funds for a disabled person;
  • is managed by a trustee; and
  • distributes funds for the beneficiary’s needs in the trustee’s discretion, often to preserve eligibility for public benefits.
• A spendthrift trust typically:
  • forbids the beneficiary from assigning his interest;
  • prevents creditors from attaching the beneficiary’s interest; and
  • limits creditor recourse to distributions actually made to the beneficiary.

Rubalcava confirms that:

• even if creditors cannot directly seize trust assets, a criminal court may still:
  • regard the trust as part of the defendant’s financial resources; and
  • impose fines or assessments that take account of that wealth.

4. “Sadistic or masochistic” conduct in child‑pornography guidelines

In guideline terms, “sadistic or masochistic conduct” does not require:

• a clinical diagnosis of sadism or masochism; or
• direct proof that the offender wanted to cause pain to get sexual pleasure.

Instead, the enhancement applies if:

• an ordinary person looking at the image would see that the child is experiencing pain or humiliation; and
• the conduct is inherently painful (e.g., penetration of very young children) or degrading (e.g., forced oral sex on a parent).

5. “Force” under § 2241(a)

For purposes of the guidelines, “force” in sexual abuse does not mean only:

• weapons,
• visible injury, or
• explicit threats.

It can also mean:

• any physical restraint that prevents the victim from leaving or avoiding the sexual acts; or
• the inherent coercion when an adult in a position of authority overpowers a child who says “no” but is physically unable to stop the abuse.

6. Plain error and harmless error

• Plain error (for unpreserved issues):
  • There must be a legal error;
  • it must be “clear or obvious”; and
  • it must affect substantial rights (typically, change the sentence or guideline range);
  • even then, the appellate court has discretion whether to correct it, usually only if it seriously affects the fairness or integrity of proceedings.
• Harmless error:
  • Even if there was an error, it will be disregarded if it did not affect the outcome (e.g., would not change the guideline range or sentence).

In Rubalcava, many guideline challenges were unpreserved and therefore reviewed for plain error; in addition, the court found that any conceivable guideline miscalculation would be harmless because the offense level would still yield a life guideline range.

IV. Conclusion

United States v. Rubalcava is a significant Fifth Circuit decision that:

• reaffirms robust application of guideline enhancements in egregious child‑exploitation cases; and
• clarifies that a defendant’s beneficial interest in a special‑needs or spendthrift trust, as well as non‑liquid assets like home equity, may be treated as “financial resources” under 18 U.S.C. § 3572 when determining AVAA assessments.

On restitution, it confirms that expert estimates of future therapy needs, together with victim impact evidence and the nature of the crime, can support awards substantially above statutory minimums, without precise invoices. On sentencing, it underscores that:

• “sadistic or masochistic” enhancement applies whenever the images objectively depict painful or humiliating acts against very young victims;
• “force” can be inferred from physical control and power disparities, especially when a child says “no” and is ignored; and
• cross‑references from possession to production guidelines are readily triggered when the defendant himself caused and recorded the abuse.

Perhaps most importantly, Rubalcava closes a potential loophole whereby substantial wealth held in protective trusts could escape consideration at criminal sentencing. By distinguishing between collection and consideration of assets, the Fifth Circuit ensures that defendants who have real access to trust‑based resources can be required to contribute meaningfully to AVAA assessments and other monetary penalties, consistent with the gravity of their offenses and congressional intent to support child‑pornography victims.