                                                                        FILED
                            FOR PUBLICATION                                MAR 18 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. 13-70858
Victims.
                                             D.C. No. 2:11-cr-00542-GEB-1

AMY & VICKY, Child Pornography
Victims,                                     OPINION

           Petitioners,

 v.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA, SACRAMENTO,

           Respondent,

JOSEPH CANTRELLE,

           Real Party in Interest.



       Petition for Writ of Mandamus to the United States District Court
                     for the Eastern District of California
                              Submitted March 8, 2013 *
                                Filed March 18, 2013

Before: PREGERSON, GRABER, and BEA, Circuit Judges.

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, 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).
      1
             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.

                                           2                                    13-70858
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 Ortega-

Mendez 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




                                            3                                     13-70858
requirement when applying 18 U.S.C. § 2259(b)(3) and, in this respect, the petition

is denied.

       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

       instructions.




                                           4                                     13-70858
                                 Counsel Listing

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.




                                         5                                   13-70858
