                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IN RE: THE MORNING STAR PACKING          No. 13-71048
COMPANY , LP AND LIBERTY
PACKING COMPANY , LLC, Crime                D.C. No.
Victims.                                 2:10-cr-00061-
                                             LKK-1

THE MORNING STAR PACKING
COMPANY , LP and LIBERTY                   OPINION
PACKING COMPANY , LLC,
                      Petitioners,

                  v.

UNITED STATES DISTRICT COURT ,
EASTERN DISTRICT OF CALIFORNIA ,
SACRAMENTO ,
                      Respondent,

FREDERICK SCOTT SALYER,
   Defendant-Real Party in Interest,

UNITED STATES OF AMERICA ,
     Plaintiff-Real Party in Interest.
2          IN RE: THE MORNING STAR PACKING COMPANY

           Appeal from the United States District Court
               for the Eastern District of California
        Lawrence K. Karlton, Senior District Judge, Presiding

                    Submitted March 27, 2013*

                       Filed March 29, 2013

             Before: Harry Pregerson, Susan P. Graber,
                 and Carlos T. Bea, Circuit Judges.

                        Per Curiam Opinion


                           SUMMARY**


                           Criminal Law

    Granting a petition for a writ of mandamus, the panel held
that the district court erred in denying restitution under the
Mandatory Victim Restitution Act to petitioners who asserted
that they had been harmed as a result of the offenses for
which a criminal defendant had been convicted.

    The panel held that the district court committed legal
error by relying on the defendant’s claimed financial status
and the potential availability of civil remedies.


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

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
      IN RE: THE MORNING STAR PACKING COMPANY              3

    The panel also stated that to the extent the denial of
restitution rested on a determination that complex issues of
fact would complicate or prolong the sentencing process, the
record was unclear as to whether the district court conducted
the required balancing test and determined from facts on the
record that the burden on the sentencing process of
determining restitution would outweigh the need to provide
restitution to victims.


                        COUNSEL

Dale Curtis Campbell & Brendan J. Begley, Weintraub
Genshlea Chediak Tobin & Tobin Law Corporation,
Sacramento, California, for Petitioners.

Elliot Remsen Peters, Brian L. Ferrall, Jo W. Golub, John
Watkins Keker, & Justina K. Sessions, Keker & Van Nest
LLP, San Francisco, California; Malcolm S. Segal, Segal &
Kirby LLP, Sacramento, California, for Defendant-Real Party
in Interest.

Jared C. Dolan & Benjamin B. Wagner, Assistant United
States Attorneys, Office of the United States Attorney,
Sacramento, California; Anna Tryon Pletcher, United States
Department of Justice, Antitrust Division, San Francisco,
California, for Plaintiff-Real Party in Interest.
4       IN RE: THE MORNING STAR PACKING COMPANY

                              OPINION

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

    In reviewing CVRA mandamus petitions, we are required
not to balance the factors outlined in Bauman v. United States
District Court, 557 F.2d 650 (9th Cir. 1977). See Kenna v.
U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).
Rather, this court “must issue the writ whenever we find that
the district court’s order reflects an abuse of discretion or
legal error.” Id.

    On March 12, 2013, the district court denied restitution to
petitioners and others who assert they have been harmed as a
result of the offenses for which Frederick Scott Salyer has
been convicted. Petitioners challenge this denial.

    Petitioners sought restitution pursuant to the Mandatory
Victim Restitution Act (“MVRA”). The MVRA provides
restitution, inter alia, to victims of offenses against property,
“including any offense committed by fraud or deceit.”
18 U.S.C. § 3663A(c)(1)(A)(ii).2 Under the MVRA, “the


    1
    The government’s ex parte motion to file its appendix under seal is
granted. The appendix shall be filed under seal and shall not be available
to any other parties to this petition.

    2
    The M VRA further provides that “the term ‘victim’ means a person
directly and proximately harmed as a result of the commission of an
offense for which restitution may be ordered including, in the case of an
offense that involves as an element a scheme, conspiracy, or pattern of
criminal activity, any person directly harmed by the defendant’s criminal
       IN RE: THE MORNING STAR PACKING COMPANY                       5

court shall order restitution to each victim in the full amount
of each victim’s losses as determined by the court and
without consideration of the economic circumstances of the
defendant.” 18 U.S.C. § 3664(f)(1)(A). Moreover, the
alternative availability of recovery through a civil lawsuit is
irrelevant in determining restitution under the MVRA. See
18 U.S.C. § 3664(f)(1)(B) (“In no case shall the fact that a
victim has received or is entitled to receive compensation
with respect to a loss from insurance or any other source be
considered in determining the amount of restitution.”); see
also United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th
Cir. 2006) (“under the MVRA the availability of a civil suit
can no longer be considered by the district court in deciding
the amount of restitution”).

    On the other hand, the MVRA does not require an award
of restitution in certain circumstances:

        [I]f the court finds, from facts on the record,
        that . . . determining complex issues of fact
        related to the cause or amount of the victim’s
        losses would complicate or prolong the
        sentencing process to a degree that the need to
        provide restitution to any victim is
        outweighed by the burden on the sentencing
        process.

18 U.S.C. § 3663A(c)(3).

    Here, a review of the record suggests that, in denying
restitution, the district court relied, in part, on a determination


conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C.
§ 3663A(a)(2).
6     IN RE: THE MORNING STAR PACKING COMPANY

that assessing restitution would be an unduly complex and
time-consuming exercise. The record also shows, however,
that in making that determination, the district court relied
heavily on its conclusions that (1) Salyer would be financially
unable to satisfy any restitution award and (2) the victims
could pursue relief through civil actions.

    We conclude that the district court committed legal error
in denying restitution because of Salyer’s claimed financial
status and the potential availability of civil remedies. See
18 U.S.C. § 3664(f)(1)(A), (B); see also Cienfuegos, 462 F.3d
at 1168. Further, to the extent that the district court’s denial
of restitution rested on a determination that complex issues of
fact would complicate or prolong the sentencing process, the
record is unclear as to whether the district court conducted the
balancing test required by 18 U.S.C. § 3663A(c)(3) and
determined “from facts on the record” that the burden on the
sentencing process of determining restitution would outweigh
the need to provide restitution to victims. See 18 U.S.C.
§ 3663A(c)(3).

    Accordingly, the petition for a writ of mandamus pursuant
to 18 U.S.C. § 3771 is granted. The district court shall vacate
its March 14, 2013, judgment with respect to restitution and
shall conduct further proceedings, consistent with this
opinion, as necessary to determine whether to award
restitution to any victims.

    GRANTED and REMANDED with instructions.
