Amy & Vicky v. USDC-SAC
FILED PER CURIAM OPINION (HARRY PREGERSON, SUSAN P. GRABER and CARLOS T. BEA) Respondent s ex parte motion to file its appendix under seal is granted. The Clerk shall file the appendix under seal and it shall not be available to any other parties to this petition. DENIED in part; GRANTED in part, and REMANDED with instructions. FILED AND ENTERED JUDGMENT. 
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MAR 18 2013
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
D.C. No. 2:11-cr-00542-GEB-1
AMY & VICKY, Child Pornography
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
Real Party in Interest.
Petition for Writ of Mandamus to the United States District Court
for the Eastern District of California
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Submitted March 8, 2013 *
Filed March 18, 2013
Before: PREGERSON, GRABER, and BEA, Circuit Judges.
This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771,
the Crime Victims’ Rights Act (“CVRA”).1
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).
On February 22, 2013, the district court denied restitution to petitioners
“Amy” and “Vicky.” Petitioners challenge this denial. Petitioners contend the
district court erred in applying United States v. Kennedy, 643 F.3d 1251 (9th Cir.
2011). In Kennedy, this court required a proximate causation between the
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Respondent’s ex parte motion to file its appendix under seal is
granted. The Clerk shall file the appendix under seal and it shall not be available
to any other parties to this petition.
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defendant’s offense conduct and the victim’s losses. See id. at 1263. Petitioners
also claim that the district court erred in not awarding them any restitution.
Petitioners urge us to overrule Kennedy on the ground that 18 U.S.C. § 2259
does not impose a general proximate cause requirement. Petitioners note that the
Fifth Circuit, sitting en banc, recently held:
[A] plain reading of § 2259 leads us to the following conclusion: Once
a district court determines that a person is a victim, . . . § 2259 requires
the district court to order restitution for that victim.
In re Unknown, 701 F.3d 749, 762 (5th Cir. 2012) (en banc), petitions for cert.
filed, _ U.S.L.W. _ (U.S. Jan. 31, 2013) (Nos. 12-8505, 12-8561).
While we acknowledge that the Fifth Circuit adopted a different
interpretation of 18 U.S.C. § 2259, Kennedy remains binding on us in the absence
of “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 OrtegaMendez 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). Accordingly, the district court did not err in imposing a proximate cause
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requirement when applying 18 U.S.C. § 2259(b)(3) and, in this respect, the petition
However, the district court abused its discretion in refusing to order any
restitution. During the sentencing hearing, with respect to restitution, the district
court adopted the presentence report’s (“PSR”) recommendation. The PSR did not
recommend restitution under Kennedy only because the writer of the report
concluded that he lacked sufficient information to show that the Government had
met its burden of establishing a causal connection. Our review of the record
demonstrates that petitioners provided sufficient evidence to establish a causal
connection between defendant’s offense and petitioners’ losses. Accordingly, the
petition is granted in part.
The district court shall vacate the judgment with respect to restitution and
shall conduct such further proceedings as may be appropriate to determine an
amount of restitution to be paid to Amy and Vicky.
DENIED in part; GRANTED in part, and REMANDED with
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Paul Cassell, Appellate Clinic, S.J. Quinney College of Law at the University of
Utah, Salt Lake City, Utah, for Petitioners.
Camil Skipper, Assistant U.S. Attorney, Office of the U.S. Attorney, Sacramento,
California, for Respondent.
Kresta Nora Daly, Barth Tozer & Daly, LLP, Sacramento, California, for Real
Party in Interest Joseph Cantrelle.
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