     Case: 14-40505      Document: 00512634395         Page: 1    Date Filed: 05/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                  ___________________
                                                                              Fifth Circuit

                                                                            FILED
                                                                        May 19, 2014
                                     No. 14-40505
                                  ___________________                  Lyle W. Cayce
                                                                            Clerk
In re: JEWELL ALLEN; ROSALINDA ARMADILLO; MAVIS BRANCH;
FELICIANO CANTU; DAVE GALLOWAY; JOHN GARCIA; JULIAN
GARCIA, III; JULIAN GARCIA; VICTORIA GARZA; ROBE GARZA;
DESIREE LARA; DIANA LINAN; THELMA MORGAN; JANIE
MUMPHORD; JOEL MUMPHORD; FRANK PEREZ; JEAN SALONE;
JAMES SHACK; BETTY WHITESIDE; BERTHA WILSON,

              Petitioners

                               _______________________

                        Petition for Writ of Mandamus to the
                              Southern District of Texas
                              USDC No. 2:06-CR-563-1
                               _______________________

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Petitioners seek a writ of mandamus under the Crime Victims’ Rights
Act, 18 U.S.C. § 3771(d)(3) (“CVRA”), pertaining to the district court’s denial
of restitution. The district court denied restitution under the Victim and
Witness Protection Act (“VWPA”), the discretionary counterpart to the
Mandatory Victims Restitution Act (“MVRA”). The VWPA provides that the
court “may order” defendants convicted of certain offenses to “make restitution


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 14-40505

to any victim of such offense[s].” 18 U.S.C. § 3663(a). The VWPA further
provides that the court “may decline” to order restitution “[t]o the extent the
court determines that the complication and prolongation of the sentencing
process resulting from the fashioning of an order of restitution under this
section outweighs the need to provide restitution to any victims.” 18 U.S.C. §
3663(a)(1)(B)(ii).
      “The language of the [VWPA] exemption provision gives the district court
a certain amount of discretion in determining whether to consider additional
evidence in assessing restitution.” United States v. Dupre, 117 F.3d 810, 824
(5th Cir. 1997); see also United States v. Cienfuegos, 462 F.3d 1160, 1167-68
(9th Cir. 2006) (distinguishing between the MVRA and the VWPA). Although
courts have used this balancing exemption infrequently, courts have exercised
their discretion to invoke this exemption in cases involving “difficult issues of
causation and speculative loss.” Dupre, 117 F.3d at 824; see, e.g., United States
v. Fountain, 768 F.2d 790, 802 (7th Cir. 1985).
      In considering the record before us, and mindful of the mandamus
posture of this matter, 1 we conclude that Petitioners have not shown that the
district court clearly and indisputably erred in finding that “the complication
and prolongation of the sentencing process” involved in fashioning a restitution
order for lifetime medical monitoring outweighed the need for such restitution
in this case. See 18 U.S.C. § 3663(a)(1)(B)(ii); In re Allen, 701 F.3d 734, 735
(5th Cir. 2012) (citing In re Dean, 527 F.3d 391, 394 (5th Cir. 2008)). In
reaching this finding, the court held hearings, received over 800 victim impact
statements, heard expert testimony from Citgo’s and the Government’s
experts, heard oral testimony from over 90 members of the community, allowed



1Defendant Citgo’s appeal and the Government’s cross-appeal are currently pending before
this court under Case No. 14-40128.
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                                     No. 14-40505

the parties and victims extensive briefing on restitution, and issued a twenty-
page written opinion. The court found that Petitioners and the Government
“failed to show, based on a preponderance of the evidence, that medical
monitoring is necessary based on their increased risk of future latent disease
due to Tanks 116 and 117.” In reaching this conclusion (as well as its other
tandem restitution denial rulings), the court found there to be insufficient
evidence on the issues of causation and cost calculation, including insufficient
evidence as to the levels of exposure to emissions from Tanks 116 and 117, and
as to the particular long-term health risks proximately caused by exposure to
those levels of emissions. The court further found there to be insufficient
evidence as to the types of tests medically appropriate to test for the particular
health risks posed, and the costs for those tests. Finally, the court found that,
considering the state of the evidence and the time already devoted to
evaluating restitution, determining restitution would unduly complicate and
prolong the sentencing process. We cannot say that the district court clearly
and indisputably erred in this regard. 2
       We further find no clear and indisputable right, amenable to and
warranting mandamus relief, based on the district court’s issuance of a final
written order declining restitution pursuant to the above exemption provision
of the VWPA. To be sure, 18 U.S.C. § 3553(c) provides that “[t]he court, at the
time of sentencing, shall state in open court the reasons for its imposition of
the particular sentence,” and “[i]f the court does not order restitution…the
court shall include in the statement the reason therefor.” Title 18 U.S.C. §
3664(d)(5), however, expressly allows a court a deferment period “not to exceed

       2 Although we hold that Petitioners have not shown a clear and indisputable right to
relief through the writ of mandamus, we express no opinion as to the proper outcome under
the standards of review applicable under any direct review process. Compare United States
v. Bengis, 631 F.3d 33, 41 (2d Cir. 2011), with Fountain, 768 F.2d at 802, with Dupre, 117
F.3d at 824.
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90 days after sentencing” to make a restitution determination if “the victim’s
losses are not ascertainable” prior to sentencing (as well as a 60 day period for
victims to petition the court to amend a restitution order after discovering
“further losses”). Here, the district court held a sentencing hearing, heard
testimony from victims, and received victim impact statements. The court
then, consistent with the § 3553(c) imperative cited by Petitioners, announced
that it would not order restitution at sentencing, stating in open court as its
reason that victim losses were not ascertainable due to their complexity.
Petitioners provide no authority demonstrating a clear and indisputable right,
amenable to and warranting mandamus relief under § 3771(d)(3), or indeed
appropriate for supervisory mandamus intercession, to have such a final
restitution determination—deferred pursuant to § 3664(d)(5), and then
declined pursuant to § 3663(a)(1)(B)(ii)—announced in open court after the
defendant’s sentencing.
      For the reasons above, IT IS ORDERED that the petition for writ of
mandamus is DENIED.
      IT IS FURTHER ORDERED that Petitioners’ motion to waive the
requirement for a 72 hour ruling on this matter, or alternatively to consolidate
the petition with the related appeal, is DENIED as MOOT.
      IT IS FURTHER ORDERED that Dr. Melissa L. Jarrell’s motion for
leave to file an amicus curiae brief is GRANTED.
      IT IS FURTHER ORDERED that Lawrence Jordan, Rosie Porter, and
Rose Alvarez’s motion for leave to intervene is DENIED.
      IT IS FURTHER ORDERED that Petitioners’ motion for leave to file a
reply is DENIED.




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