author: BALDOCK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold CREIGHTON, Defendant-Appellant.
    No. 15-8118
    United States Court of Appeals, Tenth Circuit.
    FILED April 11, 2017

      Christopher A. Crofts, United States Attorney, and Stephanie I. Sprecher, Assistant United States Attorney, Casper, Wyoming, for Plaintiff-Appellee.
    Megan L. Hayes, Laramie, Wyoming, for Defendant-Appellant.
    Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.

       After examining the briefs and appellate record, this panel has determined unanimously that oral argument would’not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

   BALDOCK, Circuit Judge.

Defendant Harold Creighton tells us his federal sentence of life imprisonment for drug trafficking is the result of prosecuto-rial vindictiveness in violation of the Fifth Amendment’s Due Process Clause. Supreme Court precedent tells us otherwise. We exercise jurisdiction under 18 U.S.C. § 3742(a)(1) and affirm the sentence of the district court.

I.

Defendant was indicted on one count of conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 846. Because Defendant had multiple prior felony drug convictions, he qualified for a sentence enhancement that would raise his statutory sentence on conviction from “ten years or more” to “a mandatory term of life imprisonment without release.” 21 U.S.C. § 841(b)(1)(A). About four weeks before Defendant’s trial, on September 29, 2015, the prosécutor emailed defense counsel. In the email, the prosecutor summarized testimony the Government expected to elicit from cooperating witnesses. The email concluded:

• I believe Mr. Creighton has information that could prove helpful to law enforcement. However, time is of the essence. I have included a proffer letter for your client’s consideration. I need to know if he wishes to proffer [ie., cooperate] by October 2nd, 2015.
• Mr. Creighton is eligible for a sentence enhancement under 21 U.S.C. § 851. I am seeking permission from management to file notice of said enhancement.

ROA Vol. II-Pleadings, at 105-09. In a second email dated October 2, 2015, the prosecutor informed defense counsel that she had received permission to file the § 851 notice of a sentence enhancement and intended to do so on October 5. The prosecutor also indicated she would tender a plea offer that would not account for Defendant’s requested cooperation, but reminded counsel: “I believe your client has information that could assist the Government — if he agrees to proffer and his information does substantially assist the Government, we could negotiate a sentence commensurate with his assistance.” Id. at 110.

Defendant refused to cooperate with the Government or plead guilty. Instead, he exercised his right to a jury trial. A jury found Defendant guilty and, at the Government’s behest and over Defendant’s objection, the district court sentenced him to life imprisonment: “But the reality is, Mr. Creighton, you have committed offenses that qualify you for the enhancement that Congress has set forth. The notice was provided timely. The underlying offenses qualify, and pursuant to the United States law, a life sentence is required.” ROA Vol. Ill-Transcripts, at 29. On appeal, Defendant asks us to quash the Government’s “Information Filed Pursuant to 21 U.S.C. § 851.” This “Information,” filed as promised on October 5, notified both Defendant and the district court that if convicted of the pending charge, Defendant should receive a sentence of life imprisonment. According to Defendant, the “Information” resulted from prosecutorial vindictiveness.

II.

Despite defense counsel’s best efforts to convince us otherwise, the doctrine of stare decisis, in particular Supreme Court precedent, plainly governs our resolution of Defendant’s appeal. In view of such precedent, namely Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), and United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), we have long recognized that to prevail on a claim of prosecu-torial vindictiveness, a defendant initially “must establish either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.” United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). Here Defendant can establish neither. The Supreme Court’s decision in Bor-denkircher squarely precludes a finding of actual vindictiveness in this case, while this same decision in concert with Goodwin precludes us on the undisputed facts presented from recognizing any presumption of vindictiveness that the Government must overcome.

A.

In Bordenkircher, the Supreme Court addressed whether the ’ Fourteenth Amendment’s Due Process Clause was violated “when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.” 434 U.S. at 358, 98 S.Ct. 663 (emphasis added). There, the state prosecutor stated that if the defendant did not plead guilty to uttering a forged instrument in the amount of $ 88.30 and save “the court the inconvenience and necessity of a trial, he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, ... which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions.” Id. at 358-59, 98 S.Ct. 663 (internal footnote and quotation marks omitted).

The Supreme Court held the prosecutor did not act vindictively because the prosecutor did “no more than openly present[ ] the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution.” Id. at 365, 98 S.Ct. 663.

While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices is an inevitable — and permissible— attribute of any legitimate system which tolerates and encourages the negotiation of pleas....
It is not disputed here that [the defendant] was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring ... generally rests entirely in [the prosecutor’s] discretion.

Id. at 364, 98 S.Ct. 663.

Bordenkircher is indistinguishable from the present case insofar as it bears on Defendant’s claim of actual vindictiveness. Here, the record indicates the federal prosecutor did nothing more than inform Defendant of his eligibility for an enhanced sentence while suggesting — implicitly rather than overtly — that her pursuit of any such, enhancement would be negotiable if Defendant chose to cooperate with the Government. See United States v. Sarracino, 340 F.3d 1148, 1178 & n.12 (10th Cir. 2003) (relying on Bordenkircher to reject a defendant’s argument that the prosecution acted vindictively in changing a charge of manslaughter to murder based on his refusal to cooperate). While the prosecutor apparently waited until plea negotiations commenced to inform Defendant of his eligibility for an enhancement, the timing of her decision does not assist Defendant. While the prosecutor did not actually file the § 851 notice until after plea discussions had ended, she clearly expressed her intention to do so in her initial email at the outset of those discussions. “This is not a situation ... where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on not pleading guilty.” Bordenkircher, 434 U.S. at 360-61, 98 S.Ct. 663. This case would be no different if the prosecutor filed a § 851 recidivist information at the outset of the prosecution and offered to drop her pursuit of the sentence enhancement as part of a plea bargain. See id.

B.

Unable to establish actual vindictiveness on the part of the prosecutor, Defendant says the circumstances of his case should give rise to a presumption of vindictiveness that the Government must rebut. Notably, neither the Supreme Court nor the Tenth Circuit has ever applied such a presumption in a pretrial setting. In Goodwin, the Supreme Court was asked to do so but declined. There, a federal park officer charged the defendant “with several misdemeanor and petty offenses, including assault.” Goodwin, 457 U.S. at 370, 102 S.Ct. 2485. When the defendant demanded a jury trial, the case was transferred from a magistrate judge to a district judge. The prosecutor newly assigned to the case obtained a four-count indictment against the defendant that included one felony count of forcibly assaulting a federal officer. The question presented was “whether a presumption that has been used to evaluate a judicial or prosecutorial response to a criminal defendant’s exercise of a right to be retried after he had been convicted should also be applied to evaluate a prosecutor’s pretrial response to a defendant’s demand for a jury trial.” Id. at 369-70, 102 S.Ct. 2485.

In refusing to apply a presumption, the Supreme Court offered “good reason” for courts “to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting.” Id. at 381, 102 S.Ct. 2485. The Court explained that a case involving “the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction” presented “a situation very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” Id. at 377-78, 102 S.Ct. 2485 (quoting Bordenkircher, 434 U.S. at 362, 98 S.Ct. 663). “[A] change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.” Id. at 381, 102 S.Ct. 2485. In the pretrial setting “[i]t is unrealistic to assume that a prosecutor’s probable response to [commonplace pretrial posturing] is to seek to penalize and deter.” Id. at 381, 102 S.Ct. 2485. In other words, “changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prose-cutorial ‘vindictiveness.’ ” Id. at 379-80, 102 S.Ct. 2485.

A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bor-denkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.

Id. at 382, 102 S.Ct. 2485. The Supreme Court concluded a presumption of vindictiveness in the pretrial setting was unwarranted because actual vindictiveness was “so unlikely.” Id. at 384, 102 S.Ct. 2485 (emphasis in original).

Defendant asserts that “threatening to file a § 851 information during plea negotiations and then filing it 20 days before trial and immediately after [he] exercised his right to trial,” if not proof of actual vindictiveness, surely raises the appearance of vindictiveness, necessarily entitling him to a presumption of such. Aplt’s Br. at 5. To be sure, the Tenth Circuit has “rejected the idea that a presumption of vindictiveness may never arise in the pretrial setting.” Raymer, 941 F.2d at 1040. Citing both Bordenkircher and Goodwin, however, we observed in Sarracino that “[mjerely by the appearance of vindictive motives, vindictiveness may not be presumed.” Sarracino, 340 F.3d at 1177-78. Only “in those pretrial decisions which are genuinely distinguishable from Goodwin and Bordenkircher, [will] we look at the totality of the objective circumstances to decide whether a realistic possibility of vindictive prosecution exists.” Raymer, 941 F.2d at 1040. (emphasis added). Defendant’s argument turns entirely on the timing of the prosecutor’s actions. Unfortunately for Defendant, the binding precedent instructs us that timing alone is not enough to give rise to a presumption of prosecutorial vindictiveness in the pretrial setting. “[T]he Supreme Court squarely has held that a prosecutor may threaten to charge a greater offense if a defendant will not plead guilty to a lesser one, as long as the prosecutor has probable cause to believe that the defendant committed the greater offense.” Sarracino, 340 F.3d at 1178 (citing Bordenkircher). This is no different than saying a prosecutor in the course of plea discussions may threaten to subject a defendant to a sentencing enhancement if the defendant declines to cooperate with the Government, as long as the defendant qualifies for the enhancement.

No one in this case disputes that Defendant qualified for the sentencing enhancement provided for in 21 U.S.C. § 841(b)(1)(A). Nor would anyone disagree that the enhancement Defendant has suffered, however justifiable, is a harsh one. But Defendant’s subjection to such enhancement is a matter of congressional prerogative coupled with prosecutorial discretion. His reliance on what is or, what was, the charging policy of the Department of Justice is simply beside the point.. The law is what matters here. And the law is that “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663. A “claim of vindictive prosecution cannot insulate the defendant from the lawful consequences of his tactical choices.” Raymer, 941 F.2d at 1042.

The circumstances of the present case simply do not support Defendant’s argument that his case is distinguishable in a meaningful way- from Bordenkircher and Goodwin. Accordingly, the sentence of the district court is

AFFIRMED.

      . Section 851, which refers to the notice as an "information,” provides in relevant part:
      No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon....
      21 U.S.C. § 851(a)(1).

      . The parties dispute whether Defendant preserved his constitutional claim in the district court. Defendant insists we review his claim de novo while the Government says plain error review is appropriate. But the parties’ dispute over the applicable standard is academic. Our decision that Defendant's claim of prosecutorial vindictiveness fails as a matter of law for lack of proof sounds the death knell of his claim even under the more favorable standard of de novo review.

      . See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Pearce and Blackledge, the defendants exercised their rights to appeal, which resulted in retrials after prior trials and convictions. In each case, the defendant's punishment was greater the second time around. The Supreme Court held the likelihood of vindictiveness on the part of either the trial court or prosecutor under such circumstances justified a presumption that would free the defendant of apprehension of such a retaliatory motive. The Government could overcome the presumption "only by objective information in the record justifying the increased [punishment].” Goodwin, 457 U.S. at 374, 102 S.Ct. 2485.


source: Caselaw Access Project

license: Public Domain

text:
    BOSC, INC.; Thomas Wayne Hayes, Plaintiffs Counter Defendants-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO, Defendant Counterclaimant-Appellee.
    No. 16-2031
    United States Court of Appeals, Tenth Circuit.
    FILED April 11, 2017

      Jared M. Burden (Frederic Dorwart, with him on the brief) Frederic Dorwart, Lawyers, Tulsa, Oklahoma, for Plaintiffs Counter Defendants-Appellants.
    Clinton W. Marrs, Marrs Griebel Law, LTD., Albuquerque, New Mexico, for Defendant Counterclaimant-Appellee.
    Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
   BALDOCK, Circuit Judge.

A New Mexico county board filed a lawsuit in state court agáinst its securities broker and registered agent. The board refrained, however, from serving process while it determined whether arbitration was available. The securities broker and agent nonetheless removed the case to federal court and moved to dismiss the suit. Four days after briefing was complete and about- three months after the board had filed suit, the board voluntarily dismissed the case and filed for arbitration. The securities broker and agent then filed this action to enjoin arbitration, arguing the board waived its right to demand arbitration when it filed the state court action. The district court disagreed and instead granted the board’s counterclaim to compel arbitration. The broker and registered agent appealed the waiver issue. Exercising jurisdiction under 9 U.S.C. § 16(a)(3), we affirm.

I.

In 2012 and 2013, BOSC, Inc., a registered securities broker and member of the Financial Industry Regulatory Authority (FINRA), and Thomas Hayes, one of BOSC’s registered representatives, recommended and sold certain investments to the Board of County Commissioners of the County of Bernalillo, New Mexico (“the Board”). In July 2015, the Board filed a lawsuit in New Mexico state court against BOSC, Hayes, and others for allegedly selling it unsuitable investments and recommending investments that conflicted with Bernalillo County’s liquidity needs, in violation of FINRA Rule 2111. The Board did not, however, serve the petition on any of the defendants. According to the Declaration of Clinton Marrs, the Board’s attorney, he refrained from serving the complaint because he had not yet “completed [his] inquiry into whether the Board was required or permitted by contract to arbitrate its claims.” R. at 31.

In September 2015, BOSC and Hayes removed the case to federal court and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Board opposed the motion. In October, four days after briefing on the motion was complete and before the district court ruled on the motion, the Board voluntarily dismissed the case without prejudice because the Board’s attorney was “satisfied that the Board could pursue its claims in arbitration.” R. at 32. Four days after that, the Board initiated FINRA arbitration. Less than three months had lapsed from the time the Board filed the state court action to when it voluntarily dismissed it.

In November 2015, BOSC and Hayes filed this federal lawsuit against the Board for preliminary and permanent injunctive relief in an attempt to enjoin the Board from pursuing FINRA arbitration. BOSC and Hayes asserted that the Board waived its right to arbitration when it filed the state court action. The Board answered the complaint and filed a counterclaim for judgment compelling arbitration. In response, BOSC and Hayes asked the district court for the opportunity to conduct discovery regarding 'the Board’s motivation for filing the state court action.

The district court denied BOSC and Hayes’ requests for injunctive relief and instead granted the Board’s counterclaim to compel arbitration. The district court applied the factors from Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 467-68 (10th Cir. 1988), to conclude the Board did not waive its option to arbitrate. The district court also denied the discovery request, explaining that the Board’s motivation for filing the state court action was irrelevant to the Peterson factors. BOSC and Hayes appealed.

II.

The parties do not dispute that the FINRA rules apply to them and would ordinarily permit the Board, as BOSC and Hayes’ customer, the option to request arbitration. They also agree that the Federal Arbitration Act (“FAA”) applies here. The primary issue is whether the Board waived its right to arbitrate. We review the district court’s decision rejecting the waiver argument de novo but review the factual findings underlying that decision for clear error. In re Cox Enterprises, Inc. Set-top Cable Television Box Antitrust Litig., 835 F.3d 1195, 1205 (10th Cir. 2016).

The FAA’s primary substantive provision declares that a written agreement to arbitrate “a contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. This provision reflects “a liberal federal policy favoring arbitration agreements,” and creates “a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Id. at 24-25, 103 S.Ct. 927. Section 3 of the FAA obliges courts to stay litigation on matters the parties have agreed to arbitrate so long as the applicant for the stay is not in default in proceeding with arbitration, while § 4 authorizes a court that otherwise has subject matter jurisdiction to compel arbitration. See 9 U.S.C. §§ 3 & 4.

We have recognized two forms of waiver, although we have only ever applied the second form: (1) when a party intentionally relinquishes or abandons its right to arbitration; (2) when a party’s conduct in litigation forecloses its right to arbitrate. See In re Cox, 835 F.3d at 1205. The second form of waiver — based on a party’s conduct — came first in this Circuit. In Reid Burton Construction, Inc. v. Carpenters District Council of Southern Colorado, 614 F.2d 698 (10th Cir. 1980), this Circuit’s “leading opinion” on waiver of the right to arbitrate, Hill v. Ricoh Americas Corp., 603 F.3d 766, 772 (10th Cir. 2010), we explained there is “no set rule as to what constitutes a waiver or abandonment of the arbitration agreement; the question depends upon the facts of each case.” 614 F.2d at 702. We noted several factors useful in analyzing waiver, which we later summarized in Peterson:

(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party.

Peterson, 849 F.2d at 467-68 (alterations in original) (quoting Reid Burton, 614 F.2d at 702). We do not apply the Peterson factors mechanically so that “each factor is assessed and the side with the greater number of favorable factors prevails,” nor do we consider this list exhaustive or exclusive. Hill, 603 F.3d at 773. Instead, “these factors reflect principles that should guide courts in determining whether it is appropriate to deem that a party has waived its right to demand arbitration,” even when the party did not subjectively intend to do so. Id.

We then acknowledged the first form of waiver — based on a party’s intent — in Hill v. Ricoh in 2010, but we have yet to apply it in any case as the basis for our holding. We explained that “a party should not be permitted to demand arbitration when it has previously waived its right to arbitrate in the narrow sense of waiver typically used in the criminal-law context, where a waiver is an ‘intentional relinquishment or abandonment of a known right.’ ” Hill, 603 F.3d at 773 (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also In re Cox, 835 F.3d at 1205 (“A party can ‘subjectively’ waive its right to arbitration if it intentionally relinquishes or abandons that right; once it has done so, it has no right to demand arbitration later.”). We commented that “[a] party’s conduct may evince such an intentional relinquishment,” such as when an employer refuses an employee’s repeated requests to arbitrate but then demands arbitration when she files suit. Hill, 603 F.3d at 773 (analyzing Brown v. Dillard’s, Inc., 430 F.3d 1004 (9th Cir. 2005)). Such external conduct may reveal a party’s intentions.

BOSC and Hayes first argue that the Board intentionally waived its right to demand arbitration when it filed the state court lawsuit. They urge us to adopt a bright-line rule that plaintiffs who later seek arbitration on the same issues have necessarily waived their right to arbitrate. Alternatively, they argue the Peterson factors support a finding that the Board waived its right to arbitrate by its conduct. While BOSC and Hayes primarily argue we may rule in their favor as a matter of law, they argue in the alternative that the district court erred in denying their request for discovery regarding why the Board filed the original state court action in the first place. We address each of these arguments in turn.

A.

BOSC and Hayes argue that the Board’s conduct in filing the original state action evinces its intent to waive its right to arbitrate. They urge the Court to apply a bright-line rule, rather than the Peterson factors, and hold that a party who files litigation intentionally abandons its right to arbitrate. They assert other circuits have so held.

The cases BOSC and Hayes cite in support of their bright-line rule do not convince us and, in fact, do not support such a strict rule under federal law at all. Take for example their reliance on the Second Circuit’s 1933 case Krauss Brothers Lumber Co. v. Louis Bossert & Sons, 62 F.2d 1004 (2d Cir. 1933). There, the plaintiff corporation sued the defendant corporation in state court for the purchase price of some “small timbers.” 62 F.2d at 1005. The defendant answered, alleged several defenses and counterclaims, and offered to submit the controversy to arbitration per the parties’ agreement. The plaintiff noticed the case for trial, later moved unsuccessfully for a voluntary dismissal, and then attempted to accept the offer to arbitrate. The plaintiff then filed a suit in federal court to enforce the contract’s arbitration clause. The defendant argued the plaintiff waived its right to arbitrate, but the district court nonetheless issued an order compelling arbitration. The Second Circuit affirmed. It first noted that “[t]he state action was indeed a repudiation of the plaintiffs own promise to arbitrate; it gave the defendant an election, taking the plaintiff at its word, to put an end to the arbitration clause, or to insist upon performance.” Id. at 1006. But because the defendant never expressly withdrew its offer to arbitrate, the plaintiff accepted the offer when it tried to discontinue the state court case and pursue arbitration. Id. The case turned on the defendants’ offer to arbitrate, a situation admittedly not present here, but it shows that the Second Circuit considers the circumstances presented rather than applying a bright-line rule against plaintiffs who later request arbitration.

Subsequent Second Circuit decisions bear this out, with each case turning on the amount of litigation conducted after filing the case and the length of delay. See Chatham Shipping Co. v. Fertex S.S. Corp., 352 F.2d 291, 293 (2d Cir. 1965) (“The eases are altogether clear that the mere filing of an action for damages on a contract does not preclude a subsequent change of mind in favor of arbitration therein provided; the earliest point at which preclusion may be found is when the other party files an answer on the merits.” (internal citations omitted)); Farr & Co. v. Cia. Intercontinental de Navegacion de Cuba, S.A., 243 F.2d 342, 348 (2d Cir. 1957) (holding that the plaintiff did not waive its right to arbitration when it filed suit because “the libel never got beyond the initial stage of filing; no party was served or entered appearance; no property was attached, no answer filed”); cf. Kulukundis Shipping Co., S/A, v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942) (“A plaintiff who brought suit on a contract, without seeking to avail himself of its arbitration clause, has been held to have waived his rights thereunder, so that he could not subsequently, after a long delay, ask the court ... to stay the action pending arbitration. Within limits, much might perhaps be said for such a holding, on the ground that a party should not thus first set in motion judicial proceedings and then arrest them.” (emphasis added)).

Likewise, the Seventh Circuit case that BOSC and Hayes cite does not create a' bright-line rule but rather a presumption that may be overcome. In Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388 (7th Cir. 1995), the Seventh Circuit held that “an election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.” Id. at 390 (emphasis added). In that case, the Seventh Circuit was faced with a defendant who removed to federal court, demanded and received almost two thousand documents in discovery but “dragged its heels in responding” to the plaintiffs discovery demands, and waited about five months after a trial date was set before demanding arbitration. Id. at 389. This conduct “manifested an intention to resolve the dispute through the processes of the federal court,” and the defendant did not rebut the presumption that it had waived its right to arbitrate by electing to proceed judicially. Id. at 390, 391. But the Seventh Circuit mentioned several situations in which a party that invokes judicial process might nonetheless retain its right to arbitrate:

We have said that invoking judicial process is presumptive waiver. For it is easy to imagine situations — they have arisen in previous cases — in which such invocation does not signify an intention to proceed in a court to the exclusion of arbitration. There might be doubts about arbitrability, and fear that should the doubts be resolved adversely the statute of limitations might have run. Some issues might be arbitrable, and others not. The shape of the case might so alter as a result of unexpected developments during discovery or otherwise that it might become obvious that the party should be relieved from its waiver and arbitration allowed to proceed. We need not try to be exhaustive. It is enough to hold that while normally the decision to proceed in a judicial forum is a waiver of arbitration, a variety of circumstances may make the case abnormal, and then the district court should find no waiver or should permit a previous waiver to be rescinded. In such a case prejudice to the other party, the party resisting arbitration, should weigh heavily in the decision whether to send the case to arbitration, as should the diligence or lack thereof of the party seeking arbitration — did that party do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration?

Id. at 390-91 (citations omitted) (second emphasis added).

The Seventh Circuit revisited its presumptive waiver rule in Grumhaus v. Comerica Securities, Inc., 223 F.3d 648 (7th Cir. 2000). There, the plaintiffs filed suit in state court and litigated their claims for several months. Id. at 651. The state court dismissed' the complaint, but the plaintiffs waited several more months before filing a suit in federal court to formally demand arbitration. Id. The plaintiffs argued that they “never submitted their state court action for judgment,” but the Seventh Circuit pointed out that, by filing suit (and, we assume, by serving process), the plaintiffs would be entitled to a default judgment if the defendants failed to respond to the suit. Id. at 651-52. The Seventh Circuit thus presumed the plaintiffs waived their right to arbitrate by filing the state court action and, because no special circumstances existed to rebut that presumption, held that their lack of diligence in seeking arbitration counseled against absolving them of their waiver. Id. at 653.

BOSC and Hayes’ remaining cases, which rely on state rather than federal law, do not offer persuasive reasoning, if any reasoning at all, for adopting a bright-line rule. In Quality Improvement Consultants, Inc. v. Williams, 129 Fed.Appx. 719 (3d Cir. 2005) (unpublished), the Third Circuit applied Minnesota law and concluded the plaintiff “substantially invoked litigation by filing a complaint in federal court and thus waived its right to arbitrate at least those claims contained in the complaint,” without offering any further analysis. Id. at 722. And in WorldSource Coil Coating, Inc. v. McGraw Construction Co., 946 F.2d 473 (6th Cir. 1991), the Sixth Circuit applied Illinois law to hold that, “[ujnless authorized by contract, submission of arbitrable issues in a judicial proceeding constitutes a waiver of the right to compel arbitration regardless of the prejudice to the other party.” Id. at 479. While the majority addressed conduct inconsistent with the right to arbitrate, we find the dissent’s reasoning more compelling as to why simply filing a lawsuit should not constitute automatic waiver:

Under the rule announced by the majority, a party would be deemed to have waived arbitration if it filed a complaint containing arbitrable issues and then the following day, upon reconsideration, dismissed the matter pursuant to Fed. R. Civ. P. 41(a)(1). Such a result is clearly anomalous. The opposing party might not even have been served with the complaint. ... Obviously, no Illinois courts [sic] has, or would, find that such actions constitute a waiver. If the mere filing of a complaint followed by immediate dismissal does not constitute submission of issues, some line drawing must be done. I conclude that in the context of waiver of arbitration, “submission of issues” under Illinois law means that the court is called on to decide the issue. Accordingly, the mere filing of a complaint would not constitute submission of an issue. A trial or dispositive motion would, on the other hand, constitute submission of an issue because the court (or jury) would be called on to decide an issue.

Id. at 483 (Gadola, J., dissenting).

We decline to adopt a bright-line rule of waiver just because a party has filed a lawsuit, primarily because the circumstances of this case demonstrate how such a rule would not be wise. Although the Board took a step towards choosing litigation over arbitration when it filed the original state-court action, it stopped short of voluntarily submitting the issues to a court for decision by refraining from serving process on BOSC and Hayes. If the Board had done nothing else after filing, it would not have been entitled to default judgment but would have instead risked dismissal for failure to prosecute. See NMRA Rule 1-004 (requiring plaintiffs to serve process “with reasonable diligence”); NMRA Rule 1-041(E)(2) (providing that a court may, on its own motion, dismiss without prejudice an action if the party filing the action “has failed to take any significant action in connection with the action or claim within the previous one hundred and eighty (180 days)”). And the Board dismissed the action before a court could rule on the motion to dismiss, a motion that BOSC and Hayes took it upon themselves to file even when they had not yet been served. The Board did not voluntarily submit its claims to a court for decision; instead the Board attempted to prevent a court from deciding those claims while it determined if arbitration was available. We decline the invitation to create a bright-line rule simply because of the Board’s prior status as a plaintiff.

B.

We now turn to the Peterson factors to determine whether the Board waived its right to arbitrate through its conduct. Those factors include (1) whether the Board took actions inconsistent with its right to arbitrate; (2) the extent to which the Board substantially invoked the litigation machinery; (3) the length of the Board’s delay before requesting arbitration and nearness to trial; (4) the claims the Board filed before requesting arbitration; (5) whether important intervening steps had taken place, such as the Board taking advantage of judicial procedures unavailable in arbitration; and (6) whether the delay affected, misled, or prejudiced BOSC and Hayes. Our overarching consideration is “whether the party now seeking arbitration is improperly manipulating the judicial process.” Hill, 603 F.3d at 773.

We hold the Board did not waive its right to arbitrate. First, the Board took some actions inconsistent with its right to demand arbitration: it filed the state court action involving the claims it now seeks to arbitrate and further filed a response to the motion to dismiss. But it did not go so far as to voluntarily submit its claims to a court for relief as it refrained from serving BOSC and Hayes and further dismissed the case entirely before the district court could rule on the motion to dismiss. See Farr & Co., 243 F.2d at 348 (holding a plaintiff did not waive its right to arbitrate because the suit “never got beyond the initial stage of filing; no party was served or entered appearance; no property was attached, no answer filed”). As to the second factor, the Board’s conduct in filing the state court action may have invoked the litigation machinery as the Board took at least the first step to litigate rather than arbitrate, but we cannot say it “substantially invoked” that machinery here. On the contrary, what got the ball rolling was BOSC and Hayes’ removal to federal court and their filing of a motion to dismiss even though they had not been served. Third, no trial date was nearing (or had even been set), and a mere three months passed from the day the Board filed the case to the day it dismissed it voluntarily. See Hill, 603 F.3d at 775 (stating a delay of four months was insufficient to establish waiver). In the fourth factor, we again acknowledge that the Board filed claims addressing the same issues it now seeks to arbitrate, but we reiterate that it did not voluntarily submit those claims for decision because it refrained from serving BOSC and Hayes. As to the fifth factor, not much had happened in the case before the Board dismissed it and sought arbitration. The district court had not held any hearings nor set any pretrial or trial deadlines. The parties did not participate in any “judicial discovery procedures not available in arbitration,” as they did not participate in any discovery at all. During the three months the case was pending, the parties completed briefing on the motion to dismiss, but the Board dismissed the ease shortly after briefing was completed, thereby avoiding significant inefficiencies that would have resulted had it submitted its claims for decision before both the court and an arbitrator. See id. (stating “very little” had happened in litigation before the arbitration demand).

As to the final factor, the Board’s delay in filing for arbitration minimally affected, misled, or prejudiced BOSC and Hayes, and that prejudice was predominately self-inflicted. BOSC and Hayes assert they incurred significant expense in analyzing the original state court action, preparing and filing the motion to dismiss, analyzing the Board’s response to that motion, and preparing and filing its reply. But the time and expense BOSC and Hayes expended were primarily self-induced. Had they done nothing, the Board would have had to eventually decide whether to serve process and kick off the litigation or risk dismissal for failure to prosecute. We do not mean to discourage defendants from pursuing all their options in a timely manner, but we will not fault the Board for BOSC and Hayes’s decision to move forward despite having not been served. Next, BOSC and Hayes complain that FINRA arbitration does not allow them to obtain summary relief for frivolous claims or to obtain relief from the improper joinder of parties, whereas civil litigation allows those procedures. But these concerns do not stem from the Board’s delay in requesting arbitration; BOSC and Hayes would face these same challenges had the Board filed for arbitration in the first place. BOSC and Hayes next assert the Board delayed effecting service of process or giving notice of the filing of the state court action, and at the same time, presented witnesses for depositions and engaged in document discovery in a New Mexico Securities Division enforcement proceeding against BOSC, Hayes, and others. We do not see how BOSC and Hayes believe this prejudiced them, particularly because the Board did not initiate the enforcement proceeding. Finally, BOSC and Hayes assert that FIN-RA Rule 4530 required them to report the litigation to FINRA, but they fail to mention that the same rule would have required them to likewise report arbitration. See FINRA Rule 4530(a)(1)(G) (requiring a FINRA member to report to FINRA when it is involved in civil litigation or arbitration).

Taking all this into consideration, we conclude the Board was not improperly manipulating the judicial process. Had it attempted to submit its claims to a court for decision and only sought arbitration after being unhappy with the result, we might feel differently. But as things stand, we do not find that litigation had proceeded too far, that significant inefficiencies would result, or that BOSC and Hayes were prejudiced by the delay. See In re Cox, 835 F.3d at 1205. That said, we stress that parties who find themselves in the Board’s position should promptly consider whether arbitration is available before filing suit:

In general, we do not look kindly upon parties who use federal courts to advance their causes and then seek to finish their suits in the alternative fora that they could have proceeded to immediately. Such actions waste the time of both the courts and the opposing parties. The decision whether to arbitrate is one best made at the onset of the case, and not part way through.... The attempt of [a party’s] attorneys to switch judicial horses in midstream either shows poor judgment, if planned, or poor foresight, if not.

Walker v. J.C. Bradford & Co., 938 F.2d 575, 577 (5th Cir. 1991) (staying the litigation pending arbitration notwithstanding its admonition to the party). Parties can avoid the risk of waiver if they refrain from filing suit unless extraordinary circumstances require them to do so.

III.

Because w*e have not ruled as a matter of law in BOSC and Hayes’ favor, we turn to their alternative argument that the district court erred in refusing to allow them to conduct discovery “on several key topics necessary to a Peterson analysis.” Brief for Appellant at 30; see also id. at 9 (arguing the “District Court erred in refusing to grant BOSC and Hayes the opportunity to conduct discovery on the factual matters which are relevant to a Peterson analysis”).

Before reviewing the district court’s discovery denial, we address the proper procedure under the FAA. The Board filed a Counterclaim for Judgment Compelling FINRA Arbitration under 9 U.S.C. § 4. BOSC and Hayes have treated this counterclaim as a motion for summary judgment and support their request for discovery with a Federal Rule of Civil Procedure 56(d) affidavit, but they misunderstand the correct procedure. While certain procedures under § 4 of the FAA “can look a lot like summary judgment,” a motion to compel arbitration sets in motion a summary trial procedure rather than the usual discovery procedures. Howard v. Ferrellgas Partners, 748 F.3d 975, 978 (10th Cir. 2014).

.Under § 4, “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action ..., for an order directing that such arbitration proceed in the manner provided for in such agreement.” When “the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement,” but when “the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.” Id. This “framework is similar to summary judgment practice”: the party moving to compel arbitration bears the initial burden of presenting evidence sufficient to demonstrate the existence of an enforceable agreement and the opposing party’s failure, neglect, or refusal to arbitrate; if it does so, the burden shifts to the nonmoving party to raise a genuine dispute of material fact regarding the existence of an agreement or the failure to comply therewith. See Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012) (addressing the FAA procedure when the existence of an agreement to arbitrate is at issue); 9 U.S.C. § 4 (providing the same procedure when the “failure, neglect, or refusal to perform” the arbitration agreement is at issue). When “a quick look at the case” reveals that “no material disputes of fact exist,” a district court may “decide the arbitration question as a matter of law through motions practice and viewing the facts in the light most favorable to the party opposing arbitration.” Howard, 748 F.3d at 978. But if “material disputes of fact do exist,” the FAA “calls for a summary trial — not death by discovery.” Id. (emphasis in original). Unless “the party alleged to be in default” demands a jury, the district court “shall hear and determine” the questions at issue. 9 U.S.C. § 4. The object of § 4 is “to decide quickly — summarily—the proper venue for the case, whether it be the courtroom or the conference room, so the parties can get on with the merits of their dispute.” Howard, 748 F.3d at 977.

We review de novo a district court’s decision to deny a summary trial on factual questions at issue under 9 U.S.C. § 4. See Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997) (providing for de novo review of a district court’s decision to “deny a jury trial on the factual question of whether the parties agreed to arbitrate”). Applying the same standard as the district court, we give the party opposing arbitration “the benefit of all reasonable doubts and inferences that may arise.” Hancock, 701 F.3d at 1261 (internal quotation marks omitted).

Here, the Board as the “aggrieved party” petitioned the district court for an order compelling arbitration after BOSC and Hayes allegedly “fail[ed], neglect[ed], or refus[ed]” to arbitrate. Put into the correct context of the FAA, we understand BOSC and Hayes to be arguing that their “failure to comply” with the arbitration agreement is at issue. That is, if the Board waived its right to demand arbitration, then BOSC’ and Hayes are not at fault in failing, neglecting, or refusing to arbitrate.' “[R]ound after round of discovery and motions practice isn’t the answer,” Howard, 748 F.3d at 978, but the district court may have erred by not proceeding to a summary trial if BOSC and Hayes can actually establish a genuine dispute as to whether the Board waived its right to demand arbitration. They attempt to raise a material factual dispute by asking the Board questions such as whether the Board (as compared to its attorney) authorized filing the state court action, was aware of its right to arbitrate and used the state court action as a litigation tactic, and dismissed the state court action only after considering the merits of the motion to dismiss. The district court denied discovery (and in effect, a summary trial), concluding that BOSC and Hayes’ requests were aimed at the Board’s motivations, and thus, were irrelevant to the Peterson factors.

The district court was correct. The Peterson factors analyze a party’s conduct — that is, that party’s external actions showing that it waived its right to demand arbitration even if it did not subjectively intend to do so. Whether it was in the form of discovery or a summary trial, the questions BOSC and Hayes wanted to ask would not change the Peterson analysis. We need not delve into whether a summary trial may be available to demonstrate that a party intentionally waived its right to arbitrate, because BOSC and Hayes have not asked us for that relief.

IV.

We AFFIRM the judgment of the district court. The Board did not waive its right to demand arbitration, and thus, the district court properly entered judgment in the Board’s favor on its counterclaim to compel arbitration.

      . This is not to say that serving process is the magic moment of waiver. As we do here, we will consider the facts of each case.

      . This factor originally asks “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings.” Peterson, 849 F.2d at 467. Although we have yet to actually apply the Peterson factors to a plaintiff (as the Board was when it filed the original state court action), the test is theoretically not restricted to defendants. Cf. Reid Burton, 614 F.2d at 702 ("In determining whether a party to an arbitration agreement, usually a defendant, has waived its arbitration right....” (emphasis added)). As the factors are not exhaustive or exclusive, see Hill, 603 F.3d at 773, we will adjust them as needed to analyze this case and the Board’s prior status as a plaintiff.

      . The parties suggest that this Circuit has not been entirely consistent in analyzing prejudice and its importance, at times describing it as just one factor courts may consider but at other times requiring a showing of substantial prejudice. Compare Peterson, 849 F.2d at 468 (listing, as one of six factors,, "whether the delay 'affected, misled, or prejudiced' the opposing party,” (quoting Reid Burton, 614 F.2d at 702)), with Adams v. Merrill Lynch, Pierce, Fenner & Smith, 888 F.2d 696, 701 (10th Cir. 1989) (stating "[pjarties seeking to prove waiver of arbitration obligations bear a heavy burden; they must show substantial prejudice,” and holding defendants had not waived their right to arbitrate when the plaintiffs “failed to meet their burden” to show they had suffered substantial prejudice), and Hart v. Orion Ins. Co., 453 F.2d 1358, 1361 (10th Cir. 1971) (stating the "question of waiver turns on the presence or absence of prejudice”). We need not address the parties’ suggestion today. Even assuming there is a difference between Adams’ sole reliance on prejudice and Petersons listing of prejudice as just one of many factors, the outcome here is the same.

      . The Board may have also misunderstood the proper procedure. During oral argument before the district court, the Board stated: "BOSC correctly understood the counter-motion as a Rule 56 motion. It’s governed by Rule 56 standards.” R. at 98. But on appeal, the Board corrected its error and explained that § 4 of the FAA governs here, not Rule 56, although the FAA’s summary trial "resembles summary judgment practice.” Brief for Appel-lee at 45.

      . For a district court to grant a summary trial, the party opposing arbitration must show that a material factual dispute exists. We are not saying, one way or the other, whether BOSC and Hayes met that threshold showing here as to whether the Board intentionally waived its right to arbitrate. We likewise do not comment on what questions regarding motivation a party opposing arbitration may ask at a summary trial to determine whether the opposing party has intentionally waived its right to demand arbitration.


author: LUCERO, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth THEIS, Defendant-Appellant.
    No. 16-3058
    United States Court of Appeals, Tenth Circuit.
    FILED April 11, 2017

      Submitted on the briefs:

    John Jenab, Jenab Law Firm, P.A., Olathe, Kansas, for DefendanL-Appellant.
    Thomas E. Beall, Acting United States Attorney, and Carrie N. Capwell, Assistant United States Attorney, Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.
    Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.

       After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.

   LUCERO, Circuit Judge.

Kenneth Theis appeals his conviction and sentence for attempted sexual exploitation of a child. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Theis used hidden cell phones to secretly record his girlfriend’s eleven-year-old daughter while she showered and used the toilet. He transferred the recordings to his computer and created still images, some of which focused on her genital and pubic area. As a result, Theis was indicted on two counts of attempted sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) & (e), which provides that any person “who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished. ...” § 2251(a).

The operative facts were undisputed. However, Theis filed a motion to dismiss the indictment arguing the facts were insufficient to establish an offense under the statute. He asserted that § 2251(a) requires a causal, interactive relationship between the defendant and the minor, and that his conduct — which amounted to mere voyeurism — was insufficient to establish a violation of the statute. The district court denied the motion. After a bench trial, the court denied Theis’ motion for judgment of acquittal, found him guilty of both charges, and sentenced him to 292 months in prison. Theis timely appealed his conviction and sentence, arguing: (1) the district court erred by denying his motion to dismiss the indictment; (2) there was insufficient evidence to support his conviction; and (3) the district court committed plain error by denying him a meaningful opportunity to allocute. We reject these arguments and affirm.

II

Theis first argues that the district court erred by denying his motion to dismiss the indictment. A district court may dismiss an indictment if the allegations are insufficient to establish the charged offense. United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). In considering a motion to dismiss, the court generally does not examine the evidence. Id. However, it may consider undisputed facts if the government does not object. Id. Under this exception, the court may dismiss the indictment if the “undisputed evidence shows that, as a matter of law, the [defendant could not have committed the offense for which he was indicted.” Id “We generally review a district court’s denial of a motion to dismiss a criminal indictment for abuse of discretion, but review any statutory interpretation issues involved in the ruling de novo.” United States v. Berres, 777 F.3d 1083, 1089 (10th Cir. 2015).

According to Theis, the undisputed evidence showed he “secretly videotape[d] the unaware minor while she performed activities over which he had no control or influence.” He argues this does not satisfy the “uses” element of § 2251(a), which he claims requires “a causal relationship between the defendant and the minor’s sexually explicit conduct.” We conclude the statute contains no such requirement.

To determine the meaning of the term “uses” in § 2251(a), we look first to the language of the statute. See United States v. Figueroa-Labrada, 780 F.3d 1294, 1298 (10th Cir. 2015). Section 2251(a) punishes any person “who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct....” (emphasis added). The statute does not define “uses,” so we give the word its ordinary meaning. See Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014). In doing so, we must also consider both the specific context in which the word is used and the broader context of the statute as a whole. Toomer v. City Cab, 443 F.3d 1191, 1194 (10th Cir. 2006).

Webster’s Dictionary defines “use” as, among other things, to “avail oneself of’ or “carry out a purpose or action by means of.” Webster’s New Collegiate Dictionary 1288 (1976); see also Fish v. Kobach, 840 F.3d 710, 733 (10th Cir. 2016) (“We may consult a dictionary to determine the plain meaning of a term.”). Neither of these definitions would require a causal relationship between the defendant and the minor’s sexually explicit conduct. Nor does the statutory context. Section 2251(a) describes a variety of ways a defendant might produce sexually explicit depictions of minors. By including the term “uses,” the statute “reaches a defendant’s active involvement in producing the depiction even if the interpersonal dynamics between the defendant and the depicted minor are unknown.” Ortiz-Graulau v. United States, 756 F.3d 12, 19 (1st Cir. 2014). Accordingly,

the term “use” in the statute permits the conviction of a defendant who was actively and directly involved in producing a sexually explicit depiction of a minor even in the absence of a • complaining witness or even without being able to identify the specific minor. In contrast, the terms employ, persuade, induce, entice, and coerce reach various types of external pressure that a defendant might apply on a minor to get him or her to engage in sexually explicit conduct.

Id. This interpretation of the statute gives effect to every word. See Toomer, 443 F.3d at 1194 (“When construing a statute, we should give effect, if possible, to every clause and word.”). And it is consistent with Congress’ intent to provide “a broad ban on the production of child pornography ... aimed to prohibit the varied means by which an individual might actively create it.” Ortiz-Graulau, 756 F.3d at 19.

Significantly, nearly every circuit to address this issue has recognized that the “uses” element “is met when a defendant intentionally films or photographs a minor’s sexually explicit conduct.” Id. at 18; see United States v. Wright, 774 F.3d 1085, 1089 (6th Cir. 2014); United States v. Vanhorn, 740 F.3d 1166, 1168 (8th Cir. 2014); United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013) (“[A] perpetrator can ‘use’ a minor to engage in sexually explicit conduct without the minor’s conscious or active participation.”); United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 1996) (stating that the “use” element “is fully satisfied ... if a child is photographed in order to create pornography”). But see United States v. Laursen, 847 F.3d 1026, 1032-33 (9th Cir. 2017) (concluding there was sufficient evidence to satisfy the “use” element when the defendant directed the minor’s actions in producing sexually explicit photos, but recognizing that other circuits have “broadly interpreted the ‘use’ element of the statute”). And the Sixth Circuit specifically rejected the argument Theis makes in this case — that the government must prove the defendant caused the minor’s conduct. Wright, 774 F.3d at 1091.

In sum, neither the statutory text nor persuasive authority from other circuits supports Theis’ argument that the “uses” element of § 2251(a) requires a causal relationship between a defendant’s actions and the minor’s sexually explicit conduct. Thus, the district court did not err by denying his motion to dismiss:-

III

Relying on the same argument regarding the “uses” element of § 2251(a), Theis also claims the evidence was insufficient to support his conviction. But he appears to concede that the evidence was sufficient if the statute does not require a causal relationship between his actions and the minor’s conduct. Because we hold that § 2251(a) contains no such requirement, we reject his argument that his conviction was based on insufficient evidence.

IV

Finally, Theis argues that the district court committed plain error at the sentencing hearing by inviting him to speak on his own behalf only after announcing its proposed sentence. Before imposing a sentence, the district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). A court violates this right to allocute when it definitively announces the defendant’s sentence befóte giving him an opportunity to speak, and fails to communicate to the defendant that it will genuinely reconsider the sentence in light of his remarks. United States v. Landeros-Lopez, 615 F.3d 1260, 1268 (10th Cir. 2010).

At the hearing, the district court first heard argument by Theis’ attorney. The court said it would allow “further allocution, as well as any statement Mr. Theis would like to make to the [cjourt” after it “announced proposed findings of fact and [a] tentative sentence.” Theis did not object to this procedure. After the prosecution’s argument, the court gave a detailed account of its “proposed findings of fact and ... tentative sentence” and described the terms of imprisonment it “intend[ed] to impose.” At one point, the court said it “ha[d] decided” on a particular term of imprisonment and supervised release, but it subsequently asked whether the prosecution or defense had objections “to the sentence as tentatively announced.” The court then invited Theis “to address the [c]ourt directly [on his] own behalf’ before it “impose[d] [the] final sentence.” Theis read a lengthy letter in which he apologized to the victim and her family and highlighted mitigating information. The court thanked Theis for his statement and specifically responded to some of his comments. Then the court imposed the sentence it had previously described.

Because Theis did not object to the district court’s sentencing procedure, we review for plain error. See United States v. Bustamante-Conchas, 850 F.3d 1130, 1137-38 (10th Cir. 2017). This standard of review requires Theis to show “(1) error, (2) that is plain, which (3) affects [his] substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation omitted). We do not address the first three prongs because we conclude Theis has failed to satisfy the fourth.

An allocution error does not seriously affect the fairness, integrity, or public reputation of the proceeding if the defendant had “a meaningful opportunity to address the court and present mitigating circumstances.” Id. at 1143. A review of the sentencing hearing as a whole convinces us Theis had such an opportunity. See id. at 1141 (“In considering the fourth prong [of the plain error test], the seriousness of the error must be examined in the context of the case as a whole.” (quotation omitted)).

First, the district court did not definitively announce Theis’ sentence before giving him an opportunity to speak. Instead, it repeatedly characterized its proposed sentence as “tentative” and referred to the conditions it “intended” to impose. These indecisive statements bear little resemblance to the conclusive pronouncements in Landeros-Lopez, in which the court definitively stated: “[I]t is and will be the judgment of this Court that the defendant ... is hereby committed to the custody of the Bureau of Prisons” and “[u]pon release from imprisonment this defendant shall be placed on supervised release.... ” 615 F.3d at 1265 (second emphasis added).

Second, even if some of the district court’s language suggested it had made up its mind, there is no indication that Theis thought so — he made a lengthy argument encouraging the court to impose a more lenient sentence. See United States v. Frost, 684 F.3d 963, 980 (10th Cir. 2012) (“[E]ven if the court’s statements in theory could have effectively communicated that his sentence had already been determined, [the defendant’s] conduct shows that the court’s statements did not in fact communicate that to him.” (alteration, citation, and quotation omitted)), overruled on other grounds by Bustamante-Conchas, 850 F.3d at 1143-44.

Third, the district court’s response to Theis’ argument suggests it considered his comments in arriving at the sentence ultimately imposed. See United States v. Mendoza-Lopez, 669 F.3d 1148, 1153 (10th Cir. 2012) (“[T]he record shows the court considered [the defendant’s] mitigating information in arriving at [his] ultimate sentence .... ”), overruled on other grounds by Bustamante-Conchas, 850 F.3d at 1143-44.

Because Theis had a meaningful opportunity to address the district court and present mitigating circumstances, he has not shown that the court’s failure to invite him to speak sooner amounted to plain error.

y

Theis’ conviction and sentence are AFFIRMED.


author: HULL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Edward OSMAN, Defendant-Appellant.
    Nos. 14-14124, 15-13321
    United States Court of Appeals, Eleventh Circuit.
    (April 12, 2017)

      Holly Lynn Gershow, David Paul Rhodes, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Joseph Michael Schuster, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
    Craig L. Crawford, D. Todd Doss, Conrad Benjamin Kahn, Rosemary Cakmis, Meghan Ann Collins, Donna Lee Elm, Maria Guzman, Larry B. Henderson, Federal Public Defender’s Office, Orlando, FL, for Defendant-Appellant.
    Before TJOFLAT, HULL, and O’MALLEY, Circuit Judges.

       Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit, sitting by designation.

   HULL, Circuit Judge:

William Edward Osman appeals his restitution order, following his guilty plea to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. We affirm.

I. FACTUAL BACKGROUND

A. Convictions

On six separate occasions between December 2012 and September 2013, Osman sexually abused and molested his approximately one-year-old daughter, A.E., and used his cell phone to photograph his sexual abuse. In September 2013, Osman sent some of the child-pornography images he had created of A.E. to another individual, M.G., in exchange for child-pornography images of M.G.’s three-year-old daughter. In October 2013, agents from the Department of Homeland Security executed a search warrant at Osman’s residence. Osman admitted to using the internet to search for child pornography; a forensic examination of Osman’s electronic devices revealed at least 194 movies and 588 still images of child pornography as well as the images of A.E. and M.G.’s daughter.

A grand jury charged Osman with:- (1) six counts of production of child pornography, in violation of 18 U.S.C. § 2251(a), (e) (Counts 1-6); (2) one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1) (Count 7); (3) one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1) (Count 8); and (4) one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (Count 9). Under a plea agreement, Osman pled guilty to one count of production of child pornography (Count 1), one count of distribution of child pornography (Count 7), and one count of possession of child pornography (Count 9). As part of the plea agreement, Osman agreed to make full restitution to A.E. under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259. The district court sentenced Osman cumulatively to sixty years of imprisonment.

B. Restitution Hearing

At the restitution hearing, Osman argued the government’s estimate of A.E.’s future counseling needs was speculative, given her very young age. The government acknowledged any estimate of damages and future counseling needs necessarily would be speculative to some extent in a case involving an infant victim but nevertheless asserted restitution was appropriate. In support of its position, the government called Sharilyn Rowland Petrie, a licensed counselor who specialized in work with child victims of sexual abuse and domestic violence.

Petrie testified she had been a licensed counselor for ten years and approximately eighty percent of her caseload involved victims of child sexual abuse. Petrie further stated she had worked with children at various, developmental stages. Petrie testified she met with A.E.’s mother the day before the hearing and discussed some of A.E.’s behavioral characteristics with her. Petrie acknowledged any estimate she could give about A.E.’s future counseling needs would be based on predictions about the care A.E. likely would need, and was, thus, in some sense speculative. But, Pe-trie testified that her opinion was based on many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.

Based on her professional experience and understanding of the standard continuum of treatment for a child sexual-abuse victim, Petrie’s expert opinion was that A.E. likely will need future treatment. The continuum of treatment Petrie described involves four different, age-appropriate stages. The first is Eye Movement Desensitization and Reprocessing (“EMDR”); second, therapy at the second-grade level (seven or eight years old); third, therapy at puberty; and fourth, therapy when the victim is ready to marry or have a child.

Petrie explained there are two types of therapies available for victims of childhood sexual trauma — EMDR and cognitive behavioral therapy. Because A.E.’s memories of the abuse initially would be stored in a nonverbal format because of her age at the time of the abuse, Petrie opined A.E. first would need EMDR treatment rather than cognitive behavioral therapy, because EMDR does not require the victim to be able to recall events in narrative form. She explained, however, that young victims often needed additional courses of treatment because it is difficult to identify all of their traumatic memories and triggers. A six-month course of EMDR treatment at a rate of $125 per hour would cost $3,250.

Petrie testified A.E. would need another stage of therapy between the ages of seven and eight, around the time she would be in second grade. At that point, A.E. would realize her family was different from other families, begin to have questions, and likely would start to exhibit emotional and behavioral disturbances. At that age, Pe-trie explained A.E. would be aware of her father’s absence from the family and wonder why he was not there. Petrie also noted that, according to A.E.’s mother, A.E. already had begun asking about her father. Petrie further explained that she advises families to provide age-appropriate information to the child about the absent parent, including the reasons for his absence, rather than keep the abuse a secret from the child. Petrie explained that trying to keep the abuse a secret from the child can cause additional trauma when the child inevitably finds out about it later in life. Based on her conversations with A.E.’s mother, Petrie opined that A.E. likely would exhibit greater behavioral problems and require additional therapy at about the time she reaches the second grade. This opinion was, in part, based on the fact that A.E.’s mother told her that A.E. was already experiencing separation anxiety and intense reactions to stressors such as being touched. To Petrie, this indicated A.E. likely would manifest her anxieties through her patterns of behavior. Petrie stated A.E. would require six to nine months of therapy at this stage; at $125 per hour, a nine-month course of treatment would cost $4,875.

Petrie then estimated that A.E. would require a third course of therapy in adolescence, when she reaches puberty and develops a greater understanding of sexual relationships and the nature of what had happened to her. She explained that other children with whom she had worked at that stage developed “a new level of understanding and disturbances” regarding the sexual abuse they had suffered as a young child. Petrie testified A.E. would need therapy for nine months to one year at this stage and stated a nine-month course of treatment at $125 per hour would cost $4,875.

Finally, Petrie explained that A.E. likely would need at least one more course of therapy, either when she is in the process of selecting a life partner or is on the verge of becoming a parent. Petrie explained that most people who have experienced childhood-sexual trauma will question their own ability to parent a child. She explained that the duration of treatment needed at this stage would depend largely on how A.E.’s life progressed. If A.E. maintains good relationships and does not suffer any other major trauma, she likely would need only three to six months of therapy, whereas a much longer course would be necessary if A.E. had difficult relationships and experienced other adverse life events. Petrie therefore concluded that six months of therapy was a “good estimate” for A.E. at that stage; at a rate of $125 per hour, that therapy would cost $3,250.

On cross-examination, Petrie explained that a victim of A.E.’s age at the time of the abuse (seven to fourteen months old) would remember the abuse as a “felt sense,” rather than as words or images, because most memory prior to age three disappears from verbal recollection. She conceded that more painful or traumatic experiences may be recalled more vividly, but explained that lack of pain did not necessarily mean the memory was less likely to be retained. Petrie testified that she recommends that A.E. begin EMDR immediately to begin addressing her nonverbal memories of the abuse. She also reiterated that AE. would need additional treatment at the second-grade-developmental stage, because EMDR therapy was unlikely to address fully A.E.’s traumatic memories. Petrie did acknowledge, however, that it was possible, though not likely, for a child to live a normal life after experiencing sexual abuse, even without therapy-

Following the restitution hearing, the parties submitted memoranda concerning their respective positions on restitution. In his memorandum, Osman argued that Pe-trie’s testimony was speculative and not based on competent evidence. He noted Petrie’s conclusions were based on only one meeting with A.E.’s mother, neither Petrie nor anyone else had evaluated A.E., and no evidence or medical records were presented. Osman further contended there was no evidence the abuse in this case was a traumatic experience that A.E. would remember past the age of three and noted that Petrie had conceded children could suffer traumatic experiences without any lasting impact. In addition, Osman contended restitution was proper only to the extent the defendant proximately caused the victim’s losses and, he claimed, no losses had been shown in this case. Osman asserted the government had to demonstrate a present need for counseling on which the estimate for future treatment could be based to support a request for prospective restitution. Osman argued it would be a violation of due process to award restitution based solely on speculative information and noted there is a process by which victims can seek restitution at a future time, when their losses become ascertainable.

In response, the government argued the losses A.E. suffered were attributable directly to Osman. Although Petrie acknowledged her estimate of A.E.’s future therapeutic needs was speculative, her conclusions were based on a substantial amount of research concerning the effects of early adverse-life experiences and Pe-trie’s experience as a counselor of victims of childhood abuse. The government contended Petrie’s testimony demonstrated A.E. would need counseling to address the harm caused by Osman. The government requested a total of $17,875 in restitution for A.E.

C. District Court’s Restitution Order

The district court ordered restitution for A.E. in the amount of $16,250. The court determined that Petrie’s testimony supported the imposition of restitution for A.E.’s future counseling costs. The court explained that Osman’s reliance on cases involving mere possession of child pornography to support his argument that the government had not established any losses proximately caused by his conduct was misplaced, because issues of causation are not present in production cases. It is undisputed that Osman sexually abused A.E. and produced photographs memorializing the abuse; there was no question any losses A.E. suffered were caused directly by Osman.

The district court rejected Osman’s arguments that the government had not established A.E. suffered any losses and that any need for future therapy was too speculative to support a restitution award. Even if Osman was correct that restitution could not be awarded for future damages unless there was evidence of the victim’s need for counseling at the time of the award, the court concluded that restitution was appropriate in this case because Petrie testified A.E. had a present need for EMDR therapy and could predict the need for additional therapy based on normal maturation patterns. The district court pointed out that other courts have recognized the propriety of awarding restitution for future counseling costs in production cases and had done so based on evidence similar to that proffered by Petrie. Although Petrie did not meet with A.E., the court pointed out that Petrie did obtain a direct assessment of A.E.’s behavior from A.E.’s mother. The district court concluded that the preponderance of the evidence supported the imposition of restitution for A.E.’s future counseling costs and that Petrie’s testimony had provided a reasonable estimate of those losses. The district court noted, however, that the government’s requested restitution amount of $17,875 was inconsistent with the amounts Petrie estimated at the hearing, which totaled only $16,250. The district court also concluded that the government’s request for restitution predicated on the future counseling needs of A.E.’s mother was not supported by specific testimony with respect to any such needs and must, therefore, be denied. Therefore, the district court limited its restitution award to $16,250. Osman timely appealed.

II. STANDARD OF REVIEW

We review the legality of a restitution order in a child pornography case de novo and the underlying factual findings for clear error. United States v. McDaniel, 631 F.3d 1204, 1207 (11th Cir. 2011). We review de novo the legal conclusion of whether a person is a “victim,” while “proximate cause is a factual finding we review for clear error.” Id. (quoting United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007)).

III. DISCUSSION

A. Legal Principles

The Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259, mandates that a district court order restitution for crimes involving the sexual exploitation of children. 18 U.S.C. § 2259(a), (b)(4)(A). Under that statute, the restitution order “shall direct the defendant to pay the victim ... the full amount of the victim’s losses as determined by the court.” Id. § 2259(b)(1). A victim’s losses include any costs incurred for medical services relating to psychological care. Id. § 2259(b)(3)(A). The Supreme Court has recognized that the distribution of child pornography is “intrinsically related to the sexual abuse of children,” because “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982).

Section 2259(b)(2) provides that an order of restitution under § 2259 shall be issued and enforced in accordance with 18 U.S.C. § 3664. 18 U.S.C. § 2259(b)(2). Under § 3664(e), any dispute regarding the proper amount or type of restitution shall be resolved by the district court under the preponderance-of-the-evidence standard. 18 U.S.C. § 3664(e); United States v. Baldwin, 774 F.3d 711, 728 (11th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1882, 191 L.Ed.2d 753 (2015). If the victim subsequently discovers further losses that were not ascertainable at the time of the original restitution order, the victim may petition the court for an amended restitution order within sixty days of the discovery of those losses. 18 U.S.C. § 3664(d)(5).

The government bears the burden of proving the amount of loss the child victim sustained as a result of the sexual-abuse crime. 18 U.S.C. § 3664(e). The government must demonstrate the amount of the loss “with evidence bearing ‘sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Singletary, 649 F.3d 1212, 1217 n.21 (11th Cir. 2011) (quoting United States v. Bernardine, 73 F.3d 1078, 1080-81 (11th Cir. 1996)). We have noted “the determination of the restitution amount is by nature an inexact science.” Baldwin, 774 F.3d at 728 (citation and internal quotation marks omitted). Consequently, a district court “may accept a ‘reasonable estimate’ of the loss based on the evidence presented.” Id. (citation and internal quotation marks omitted). Further, the government must only meet its burden by a preponderance of the evidence, which means the need for restitution is more likely than not to occur. See M.

B. Future Therapy Costs

This Court has not addressed explicitly whether § 2259 permits an award of restitution for future therapy costs. But see McDaniel, 631 F.3d at 1207, 1209 (upholding a restitution award that was based in part on the victim’s future therapy needs without discussion). Other circuits to have addressed this issue have concluded that restitution for future expenses, including therapeutic costs, is appropriate under § 2259 as long as the award is based on a reasonable estimate of those costs. See United States v. Rogers, 758 F.3d 37, 39-40 (1st Cir. 2014); United States v. Pearson, 570 F.3d 480, 486-87 (2d Cir. 2009); United States v. Danser, 270 F.3d 451, 455-56 (7th Cir. 2001); United States v. Julian, 242 F.3d 1245, 1246-48 (10th Cir. 2001); United States v. Laney, 189 F.3d 954, 966-67 (9th Cir. 1999). Although § 3664 provides a mechanism by which victims can seek additional restitution at a later date, as the Ninth Circuit explained, resort to that procedure is necessary only where the victims’ losses were not ascertainable at the time of the original restitution award. Laney, 189 F.3d at 966-67. When the victim’s need for future counseling and the costs of such counseling can be ascertained, § 2259 permits a present award of restitution for those future losses. Id,

We are persuaded by our sister circuits and hold that a restitution order under 18 U.S.C. § 2259 may include restitution for future therapy expenses as long as the award reflects a reasonable estimate of those costs and is based on record evidence. See United States v. Doe, 488 F.3d 1154, 1160 (9th Cir. 2007) (“We will uphold an award of restitution under Section 2259 if the district court is able to estimate, based upon facts in the record, the amount of [the] victim’s loss with some reasonable certainty.”); Laney, 189 F.3d at 967 n.14 (“Of course, district courts must estimate the amounts that victims will spend on future counseling with reasonable certainty, in accordance with the procedures set forth in 18 U.S.C. § 3664.”).

C. Award for A.E.’s Future Therapy Costs

In Paroline v. United States, the Supreme Court considered “what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under § 2259.” 572 U.S. —, —, 134 S.Ct. 1710, 1716, 188 L.Ed.2d 714 (2014). The defendant in Paroline was one of many individuals who possessed child-pornography images of the victim. Id. at —, 134 S.Ct. at 1717. The Supreme Court had to determine the extent to which the defendant was liable for the victim’s overall losses as a result of his viewing and circulation of her images. Id. at —, 134 S.Ct. at 1717-18. The Supreme Court concluded restitution was proper under § 2259 “only to the extent the defendant’s offense proximately caused a victim’s losses.” Id. at —, 134 S.Ct. at 1722. In Paroline, because the defendant was only one of many possessors of a victim’s image, the Supreme Court concluded it was impossible to trace all of the victims’ losses to that defendant. See id at —, 134 S.Ct. at 1727. Accordingly, the Supreme Court explained the district court should only order restitution in an amount that reflected the defendant’s relative role in the “causal process” underlying the victim’s losses. Id

Osman’s reliance on Paroline is misplaced. That decision has no bearing on his central argument — that the government failed to show A.E. suffered any losses from his conduct. Paroline addressed the causal connection required to hold a single possessor of widely disseminated child-pornography images, far removed from the original abuse, liable for a victim’s losses. See id. at —, 134 S.Ct. at 1716-18. It is undisputed Osman triggered the “causal process” underlying any losses suffered by A.E. because he perpetrated the abuse, produced the child-pornography images of her, and disseminated them. See id. at —, 134 S.Ct. at 1727. Osman’s argument that the government has failed to establish that A.E. has, in fact, suffered any losses is an antecedent issue not raised in Paro-line. See id. at —, 134 S.Ct. at 1726 (“It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured.”).

The district court did not err in concluding that A.E. has suffered a loss or in awarding restitution to A.E. for future counseling expenses needed to address that loss. First, Petrie’s testimony bears sufficient indicia of reliability to support its probable accuracy. Singletary, 649 F.3d at 1217 n.21. Petrie acknowledged her estimates of A.E.’s therapy needs necessarily were predictive because of A.E.’s very-young age, but explained that those estimates were based on- extensive research concerning early adverse-life events, her ten years of experience counseling victims of child sexual abuse, and her discussion with A.E.’s mother. Although Petrie acknowledged it was possible a child like A.E. could live a normal life despite the sexual abuse she had suffered, she opined that was unlikely. There can be no doubt that A.E. eventually will learn of the abuse and her father’s incarceration in connection with that abuse, either from her mother or through her own research; A.E. will need to learn to cope with the knowledge of both, and feelings of guilt arising therefrom.

Petrie’s testimony also established that A.E. already had suffered and would continue to suffer losses from Osman’s conduct, and Petrie provided reasonable estimates of A.E.’s therapeutic needs. Petrie testified EMDR therapy (the first stage) was presently recommended for A.E. to begin addressing her nonverbal memories of Osman’s sexual abuse. Because of the difficulty of identifying and addressing all of the traumatic memories and possible triggers with a victim as young as A.E., Petrie explained that additional therapy likely would be needed at the second-grade-developmental stage (the second stage). Based on her conversation with A.E.’s mother, Petrie also testified A.E. already had exhibited behaviors, such as separation anxiety and sensitivity to touch, which indicated that she was more likely to have greater behavioral problems at the second-grade stage that would require counseling. While Petrie did not examine A.E., we are confident that the mother of A.E., a two-year-old child, was the best possible source of information regarding A.E.’s behaviors. A.E.’s mother was with the child daily and already noticed A.E.’s averment to touch. The mother’s constant interaction and observation offers more than an expert’s two- or three-hour observation could.

In addition, Petrie expected A.E. would need further counseling in adolescence (the third stage), and explained that other children with whom she had worked at that stage had experienced a new level of insight into and disturbance regarding the sexual abuse they had suffered. At this third stage, Petrie noted the duration of therapy needed would depend on A.E.’s readiness and ability to cooperate, and Pe-trie estimated A.E. would need, at the low end, nine months of therapy. As noted earlier, Petrie testified that parents and other family members are advised not to withhold information about the abuse once the child is old enough to process that information, so as to avoid even greater psychological harm caused by feelings of mistrust. Thus, Petrie explained the question was not whether A.E. would learn of the abuse, only when.

Petrie last testified she expected A.E. would need a fourth course of therapy when selecting a life partner or starting her own family because “[m]ost people” who suffered childhood-sexual trauma such as A.E.’s will question their own ability to parent a child. Petrie acknowledged her estimate of the necessary duration of treatment for A.E. at this fourth stage was the most uncertain because it largely would depend on how A.E.’s life progressed. If AE.’s life experiences were relatively positive with no other major significant trauma, a course of three to six months would be appropriate, whereas a longer course of treatment might be necessary if A.E. experienced other traumas resulting from Osman’s sexual abuse. In view of these variables, Petrie testified six months was “a good estimate” of A.E.’s needs at this fourth stage. We find that Petrie’s testimohy provided a reasonable estimate of A.E.’s losses by a preponderance of the evidence; the district court did not err in relying on that estimate in awarding restitution. 18 U.S.C. §§ 2259(b)(2), (3)(A), 3664(e); Baldwin, 774 F.3d at 728.

We are unpersuaded by Osman’s contention that § 3664(d)(5) provides the appropriate remedy for A.E. As the Ninth Circuit explained in Laney, § 3664(d)(5) allows a victim to seek additional restitution for losses not ascertainable at the time of the original restitution award. See 18 U.S.C. § 3664(d)(5); Laney, 189 F.3d at 966-67. Because a reasonable estimate of A.E.’s future therapy needs is presently ascertainable, the district court properly included those costs in his restitution award under § 2259. In rejecting the same argument Osman makes here, the Seventh Circuit reasoned that: “We do not believe that Congress sought to create such a cumbersome procedure for victims to receive restitution. In enacting section 2259, it is clear that Congress intended to provide victims of sexual abuse with expansive relief for ‘the foil amount of ... [their] losses’ suffered as a result of abuse.” Danser, 270 F.3d at 455 (citing 18 U.S.C. § 2259(b)(3)(B)). We agree. See McDaniel, 631 F.3d at 1207, 1209; Laney, 189 F.3d at 966-67.

We are not dealing here with just the likelihood that a young child whose pornographic images are shared online •will suffer residual effects from the reproduction of those images will need treatment. We are dealing with a child who was molested by her father, who will be informed of that fact, who will know that her father is absent from her life and suffering imprisonment based on that interaction. That is a heavy burden to place on a child. We cannot imagine that therapy will not be in order at the relevant times. Given the facts here, it seems that the need for future therapy is not just likely, but a virtual certainty.

AFFIRMED.