                                                                        FILED
                             FOR PUBLICATION                               MAY 03 2013

                                                                    MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                          FOR THE NINTH CIRCUIT



In re: AMY & VICKY, Child Pornography        No. 13-71486
Victims.
                                             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
                                                       *
                              Submitted May 1, 2013
                                 Filed May 3, 2013


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).




                                           3                                    13-71486
      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,


                                            4                                       13-71486
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


                                           5                                      13-71486
court or before the United States Supreme Court. Accordingly, the petition for a

writ of mandamus is denied.

      DENIED.




                                         6                                  13-71486
                                 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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