In re: Amy & Vicky, et al v. USDC, Sacramento

Filing

FILED PER CURIAM OPINION (STEPHEN S. TROTT, RICHARD A. PAEZ and JACQUELINE H. NGUYEN) DENIED. FILED AND ENTERED JUDGMENT. [8614608]

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FILED
MAY 03 2013

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. 13-71486
D.C. No. 2:11-cr-00542-GEB

AMY & VICKY, Child Pornography
Victims,

OPINION

Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA, SACRAMENTO,
Respondent,
JOSEPH CANTRELLE,
Defendant - Real Party in
Interest,
UNITED STATES OF AMERICA,
Plaintiff - 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 May 1, 2013
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*

Before: TROTT, PAEZ, and NGUYEN, Circuit Judges.
PER CURIAM:
Amy and Vicky, child pornography victims, petition for a writ of mandamus
pursuant to 18 U.S.C. § 3771, the Crime Victims Rights Act (“CVRA”). Finding
no legal error or abuse of discretion, we deny the petition.
This matter was previously before the court in a CVRA petition that
challenged the district court’s denial of restitution to petitioners “Amy” and
“Vicky.” See In re: Amy (“Amy I”), 710 F.3d 985, 986 (9th Cir. 2013) (per
curiam). We denied petitioners’ request to overrule United States v. Kennedy, 643
F.3d 1251 (9th Cir. 2011), noting that Kennedy remains binding on this court in the
absence of intervening higher authority that is clearly irreconcilable with our
circuit precedent. 710 F.3d at 987. Kennedy requires a court to “identify a causal
connection between the defendant’s offense conduct and the victim’s specific
losses” before awarding restitution pursuant to 18 U.S.C. § 2259. 643 F.3d at
1262. The Amy I court concluded, however, that “the district court abused its
*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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discretion in refusing to order any restitution,” finding petitioners had “provided
sufficient evidence to establish a causal connection between defendant’s offense
and petitioners’ losses.” 710 F.3d at 987. The court remanded for further
proceedings to determine the amounts of restitution to be awarded to Amy and
Vicky. Id.
On remand, the district court adopted the approach for determining
restitution suggested by the Sixth Circuit in United States v. Gamble, 709 F.3d 541,
553-54 (6th Cir. 2013). Specifically, the district court determined the relevant
“pool” of each victim’s provable losses by excluding any losses incurred prior to
the offense date, then divided that pool of losses by the number of standing
restitution orders. Utilizing that methodology, the district court awarded petitioner
Amy $17,307.44 and petitioner Vicky $2,881.05 in restitution. Petitioners
challenge the district court’s order.
In reviewing a CVRA mandamus petition, this court “must issue the writ
whenever we find that the district court’s order reflects an abuse of discretion or
legal error,” and need not balance the factors outlined in Bauman v. U.S. Dist.
Court, 557 F.2d 650, 654-55 (9th Cir. 1977), in deciding these petitions. Kenna v.
U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2009).

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Petitioners first contend that the district court applied an improper
methodology for determining the appropriate amount of restitution to be awarded.
Because 18 U.S.C. § 2259(b)(1) directs that an “order of restitution under this
section shall direct the defendant to pay the victim . . . the full amount of the
victim’s losses,” petitioners assert that the district court’s award of only a portion
of the requested restitution contravenes the plain language of the statute.
Petitioners urge us to reverse the district court’s restitution order and impose joint
and several liability on defendant Joseph Cantrelle for all of their losses.
Petitioners also reassert their argument that Kennedy was wrongly decided and
should be overruled.
The district court did not commit legal error or abuse its discretion in
declining to impose joint and several liability in this case. The appropriate method
for calculating a restitution award under 18 U.S.C. § 2259 is an open question in
this Circuit. See Kennedy, 643 F.3d at 1265. Nowhere in 18 U.S.C. §§ 2259 or
3664(h), the general federal criminal restitution statute, is joint and several liability
expressly authorized. Further, numerous sister courts have concluded that
§ 3664(h) only allows for joint and several liability where the defendants from
whom joint liability is sought are defendants in the same case. See, e.g., United
States v. Fast, 709 F.3d 712, 723 n.6 (8th Cir. 2013); United States v. Laraneta,
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700 F.3d 983, 992-93 (7th Cir. 2012); United States v. Aumais, 656 F.3d 147, 156
(2d Cir. 2011).
Moreover, there is a clear split in authority on this issue. Several circuit
courts have expressly declined to impose joint and several liability in the context of
a restitution award under 18 U.S.C. § 2259(b)(1). See, e.g., Gamble, 709 F.3d at
552; Fast, 709 F.3d at 723 n.6; Aumais, 656 F.3d at 156. Of the circuit courts to
consider the issue, only the Fifth Circuit has imposed joint and several liability for
restitution pursuant to § 2259. See In re Amy Unknown, 701 F.3d 749, 769-71 (5th
Cir. 2012) (en banc), petitions for cert. filed, __ U.S.L.W. __ (U.S. Jan 31, 2013)
(Nos. 12-8505, 12-8561). The Fifth Circuit, however, simultaneously rejected the
proximate cause requirement adopted by this court in Kennedy. See 701 F.3d at
765-66. Under these circumstances, the district court did not err in declining to
impose joint and several liability.
Petitioners’ request that this court overrule Kennedy was previously
considered and denied. See Amy I, 710 F.3d at 987. Absent “intervening higher
authority” that is “clearly irreconcilable” with our circuit precedent, Kennedy
remains binding on this panel. Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir.
2003) (en banc). No such authority exists. Indeed, petitioners concede as much in
their petition and merely seek to preserve the issue for future proceedings in this
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court or before the United States Supreme Court. Accordingly, the petition for a
writ of mandamus is denied.
DENIED.

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Counsel Listing
Paul Cassell, Appellate Clinic, S.J. Quinney College of Law, at the University of
Utah, Salt Lake City, Utah; James R. Marsh, Marsh Law Firm, PLLC, White
Plains, New York; and Carol L. Hepburn, Carol L. Hepburn PS, Seattle,
Washington, for Petitioners.
Benjamin B. Wagner, U.S. Attorney, and Camil Skipper, Assistant U.S. Attorney,
Office of the U.S. Attorney, Sacramento, California, for Plaintiff - Real Party in
Interest.
Kresta Nora Daly, Barth Tozer & Daly, LLP, Sacramento, California, for
Defendant - Real Party in Interest.

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