Amy & Vicky v. USDC-WAWSE

Filing

FILED PER CURIAM OPINION (RONALD M. GOULD, RICHARD R. CLIFTON and JAY S. BYBEE) DENIED. Petitioners motion to file a reply memorandum in support of the mandamus petition is granted. The reply has been filed. FILED AND ENTERED JUDGMENT. [8375372]

Case: 12-73414

10/24/2012

ID: 8375372

DktEntry: 13

Page: 1 of 5

FILED
OCT 24 2012

FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: AMY & VICKY, Child Pornography
Victims.

No. 12-73414
D.C. No. 2:08-cr-00354-RAJ-1

AMY & VICKY, Child Pornography
Victims,

OPINION

Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
WASHINGTON, SEATTLE,
Respondent,
JOSHUA OSMUN KENNEDY,
Real Party in Interest.

Petition for Writ of Mandamus to the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding

Case: 12-73414

10/24/2012

ID: 8375372

DktEntry: 13

Page: 2 of 5

Submitted October 23, 2012 *
Filed October 24, 2012
Before: GOULD, CLIFTON, and BYBEE, Circuit Judges.
PER CURIAM:
This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771,
the Crime Victims Rights Act (“CVRA”).1
This matter has previously been on appeal, see United States v. Kennedy,
643 F.3d 1251 (9th Cir. 2011) (“Kennedy”), and a three-judge panel of this court
affirmed defendant’s conviction and sentence but vacated the prior restitution order
entered by the district court. In so doing, the panel applied United States v. Laney,
189 F.3d 954, 965 (9th Cir. 1999) (holding that 18 U.S.C. § 2259 “incorporates a
requirement of proximate causation” based in part on the “proximate result”
language in 18 U.S.C. § 2259(b)(3)(F)), and concluded that for purposes of
determining causation, “a court must identify a causal connection between the
defendant’s offense conduct and the victim’s specific losses” before awarding

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1

Petitioners’ motion to file a reply memorandum in support of the
mandamus petition is granted. The reply has been filed.
2

12-73414

Case: 12-73414

10/24/2012

ID: 8375372

DktEntry: 13

Page: 3 of 5

restitution under 18 U.S.C. § 2259. See Kennedy, supra, 643 F.3d at 1262. The
panel then remanded for further proceedings.
On remand, the district court denied restitution to petitioner “Amy” but
awarded petitioner “Vicky” $4,545.08 in restitution on August 24, 2012 and
October 11, 2012, respectively. Petitioners Amy and Vicky challenge these district
court orders.
In reviewing CVRA mandamus petitions, this court “must issue the writ
whenever we find that the district court’s order reflects an abuse of discretion or
legal error,” and we need not balance the factors outlined in Bauman v. U.S. Dist.
Court, 557 F.2d 650 (9th Cir. 1977) in deciding these petitions. Kenna v. U.S.
Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).
Petitioners contend that this court erroneously decided Kennedy, and urge us
to overrule Kennedy and reverse the district court’s restitution orders. Petitioners
note that the Fifth Circuit, sitting en banc, recently held that:
§ 2259 only imposes a proximate result requirement in § 2259(b)(3)(F);
it does not require the Government to show proximate cause to trigger
a defendant’s restitution obligations for the categories of losses in §
2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain
language of the statute dictates that a district court must award restitution
for the full amount of those losses.

3

12-73414

Case: 12-73414

10/24/2012

ID: 8375372

DktEntry: 13

Page: 4 of 5

In re Unknown, -- F.3d ---, 2012 WL 4477444, at *1 (5th Cir. Oct. 1, 2012) (en
banc).
While we acknowledge that the Fifth Circuit adopted a different statutory
interpretation of 18 U.S.C. § 2259 than that in Laney and Kennedy, those cases
remain binding on this panel absent “intervening higher authority” that is “clearly
irreconcilable” with our circuit precedent. Miller v. Gammie, 335 F.3d 889, 893,
900 (9th Cir. 2003) (en banc). A decision from the Fifth Circuit, our sister circuit,
is not “intervening higher authority” and does not authorize us to abandon a prior
panel opinion. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019 (9th Cir.
2006) (noting that intervening higher authority includes decisions of the Supreme
Court and of this court sitting en banc). Indeed, petitioners concede as much in
their petition. To change the law of this circuit, petitioners must raise this issue in
a petition for rehearing en banc or in a petition for writ of certiorari at the United
States Supreme Court. Accordingly, this petition for a writ of mandamus is denied.
DENIED.

4

12-73414

Case: 12-73414

10/24/2012

ID: 8375372

DktEntry: 13

Page: 5 of 5

Counsel Listing
Paul G. Cassell, Appellate Clinic, S.J. Quinney College of Law at the University of
Utah, Salt Lake City, Utah, for Petitioners.
Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, Washington, for
Real Party in Interest Joshua Kennedy.
Catherine Lynskey Crisham, Assistant U.S. Attorney, Office of the U.S. Attorney,
Seattle, Washington, for the United States.

5

12-73414