                                                                        FILED
                            FOR PUBLICATION                                OCT 24 2012

                                                                    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. 12-73414
Victims.
                                             D.C. No. 2:08-cr-00354-RAJ-1

AMY & VICKY, Child Pornography
Victims,                                     OPINION

           Petitioners,

 v.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
WASHINGTON, SEATTLE,

           Respondent,

JOSHUA OSMUN KENNEDY,

           Real Party in Interest.



       Petition for Writ of Mandamus to the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding
                            Submitted October 23, 2012 *
                              Filed October 24, 2012

Before: GOULD, CLIFTON, and BYBEE, 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

      This matter has previously been on appeal, see United States v. Kennedy,

643 F.3d 1251 (9th Cir. 2011) (“Kennedy”), and a three-judge panel of this court

affirmed defendant’s conviction and sentence but vacated the prior restitution order

entered by the district court. In so doing, the panel applied United States v. Laney,

189 F.3d 954, 965 (9th Cir. 1999) (holding that 18 U.S.C. § 2259 “incorporates a

requirement of proximate causation” based in part on the “proximate result”

language in 18 U.S.C. § 2259(b)(3)(F)), and concluded that for purposes of

determining causation, “a court must identify a causal connection between the

defendant’s offense conduct and the victim’s specific losses” before awarding




      *
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1
          Petitioners’ motion to file a reply memorandum in support of the
mandamus petition is granted. The reply has been filed.

                                          2                                    12-73414
restitution under 18 U.S.C. § 2259. See Kennedy, supra, 643 F.3d at 1262. The

panel then remanded for further proceedings.

      On remand, the district court denied restitution to petitioner “Amy” but

awarded petitioner “Vicky” $4,545.08 in restitution on August 24, 2012 and

October 11, 2012, respectively. Petitioners Amy and Vicky challenge these district

court orders.

      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).

      Petitioners contend that this court erroneously decided Kennedy, and urge us

to overrule Kennedy and reverse the district court’s restitution orders. Petitioners

note that the Fifth Circuit, sitting en banc, recently held that:

      § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F);
      it does not require the Government to show proximate cause to trigger
      a defendant’s restitution obligations for the categories of losses in §
      2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain
      language of the statute dictates that a district court must award restitution
      for the full amount of those losses.




                                            3                                     12-73414
In re Unknown, -- F.3d ---, 2012 WL 4477444, at *1 (5th Cir. Oct. 1, 2012) (en

banc).

         While we acknowledge that the Fifth Circuit adopted a different statutory

interpretation of 18 U.S.C. § 2259 than that in Laney and Kennedy, those cases

remain binding on this panel absent “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). Indeed, petitioners concede as much in

their petition. To change the law of this circuit, petitioners must raise this issue in

a petition for rehearing en banc or in a petition for writ of certiorari at the United

States Supreme Court. Accordingly, this petition for a writ of mandamus is denied.

         DENIED.




                                            4                                     12-73414
                                 Counsel Listing

Paul G. Cassell, Appellate Clinic, S.J. Quinney College of Law at the University of
Utah, Salt Lake City, Utah, for Petitioners.

Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, Washington, for
Real Party in Interest Joshua Kennedy.

Catherine Lynskey Crisham, Assistant U.S. Attorney, Office of the U.S. Attorney,
Seattle, Washington, for the United States.




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