                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 07-1705



In Re:   JANE DOE,

                                                          Petitioner.




     On Petition for Writ of Mandamus.      (1:07-cr-00029-jpj)


Submitted:   August 6, 2007                 Decided:   August 9, 2007


Before WILLIAMS, Chief Judge, and KING and DUNCAN, Circuit Judges.


Petition denied by unpublished per curiam opinion.     Judge King
wrote a separate opinion concurring in the denial of mandamus.


Russell P. Butler, MARYLAND CRIME VICTIMS’ RESOURCE CENTER, INC.,
Upper Marlboro, Maryland, for Petitioner. John L. Brownlee, United
States Attorney, Roanoke, Virginia, Randy Ramseyer, Assistant
United States Attorney, Rick Mountcastle, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia,
for the United States.      Howard M. Shapiro, Edward C. DuMont,
Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR, L.L.P.,
Washington, D.C., for The Purdue Frederick Company; Andrew Good,
GOOD & CORMIER, Boston, Massachusetts, for Paul D. Goldenheim; Mark
F. Pomerantz, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, L.L.P., New
York, New York, for Michael Friedman; Mary Jo White, DEBEVOISE &
PLIMPTON, L.L.P., for Howard R. Udell.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                                 I.

     Jane Doe (“Petitioner”) petitions for a writ of mandamus

pursuant to the Crime Victims Rights Act (“CVRA”), 18 U.S.C.     §

3771. Petitioner argues that she is entitled to relief because the

district court denied her the right, protected by the CVRA, to

“full and timely restitution” for injuries caused by the Purdue

Frederick Company, Inc. (“Purdue”).   18 U.S.C. § 3771(a)(6).

     Petitioner sought to assert this right in the government’s

criminal prosecution of Purdue for its practices in marketing the

prescription painkiller OxyContin.1    In that proceeding, Purdue

pleaded guilty to a single felony of misbranding a prescription

drug with the intent to defraud or mislead in violation of 21

U.S.C. §§ 331(a), 333(a)(2).   Purdue entered a plea agreement with

the government that required it to pay a significant sum of money

in fines, penalties, and restitution to various entities affected

by its conduct. However, both the government and Purdue asked that

the district court limit restitution obligations to those provided

for in the plea agreement.




     1
      The government’s prosecution also focused on three of
Purdue’s executives. Although Petitioner did not limit her request
for restitution to any specific defendant or subset of defendants
below, her petition focuses exclusively on Purdue. We, therefore,
have no cause to consider the district court’s order with respect
to any of the individual defendants.

                                 2
      Petitioner objected to this proposed limitation on Purdue’s

restitution obligations as violative of her rights under the CVRA.

She contended that she was entitled to restitution under various

legal provisions for harm that she suffered as a result of using

OxyContin to treat chronic pain.            The district court denied her

motion, and accepted Purdue’s guilty plea, its plea agreement, and

the   requested      limitation   on       its    restitution   obligations.

Petitioner now challenges that ruling under the CVRA and requests

that we issue a writ of mandamus ordering the district court to

reopen    Purdue’s   sentencing   and      enforce   Petitioner’s   right   to

restitution. After reviewing the record and the submissions of the

interested parties, we find no basis upon which to grant the relief

that Petitioner requests and, therefore, deny the petition.

                                   II.

      Before we analyze the substance of the petition, we consider

the question of the appropriate standard of review.                 Normally,

petitions for mandamus are subject to an extraordinarily stringent

standard in order to prevent them from becoming a substitute for

appeal.    In re Catawba Indian Tribe of South Carolina, 973 F.2d

1133, 1135-36 (4th Cir. 1992) (quoting In re Ralston Purina Co.,

726 F.2d 1002, 1004 (4th Cir. 1984)).            We have previously required

petitioners to demonstrate an “abuse of discretion [that] amount[s]

to a judicial usurpation of power” in order to succeed on a

mandamus petition.      Id. (quotations omitted).          This standard is


                                       3
significantly higher than the normal abuse of discretion standard

that we apply in other circumstances.     See id. at 1137 (“[O]ur

inquiry . . . is not whether . . . the decision amounts to an

ordinary abuse of discretion.”).

     However, mandamus petitions filed under the CVRA are not

necessarily subject to this stringent standard of review.       In

creating the CVRA, Congress specifically chose a mandamus petition

as the appropriate vehicle for appellate review of an order denying

a crime victim’s assertion of a right protected thereunder. See 18

U.S.C. § 3771(d)(3).   Because the use of mandamus in this context

results from a deliberate legislative choice and not adroit or

devious pleading, it is not clear that a petitioner under the CVRA

should be subjected to the same stringent standard of review as

traditional petitioners.   At least two other circuits have found

that CVRA petitioners should not be so constrained and each has

applied a normal abuse of discretion standard to CVRA mandamus

petitions.   See Kenna v. United States Dist. Court for the Cent.

Dist. of Calif., 435 F.3d 1011, 1017 (9th Cir. 2006); In re W.R.

Huff Asset Manag. Co., 409 F.3d 555, 562 (2d Cir. 2005).   We need

not decide the issue today, however, because Petitioner would not

be entitled to relief even under the lower standard.

                               III.

     The reason the standard of review is immaterial here is that

each of Petitioner’s arguments rest on the premise that she is


                                   4
legally entitled to restitution from Purdue and that the district

court erred in denying her such an award.                     As a threshold matter,

then,       Petitioner   must    demonstrate       a     legal   basis    for    such    an

entitlement.2         Otherwise,      any     error      in   the   district     court’s

handling of the sentencing proceedings3 or Petitioner’s motion

would       be   harmless   because     it       could    not    have     affected      her

substantial rights.4         See Fed. R. Crim P. 52(a).                   Therefore, we

begin our analysis by examining Petitioner’s claim to restitution.

     Petitioner’s argument regarding her entitlement to restitution

ultimately       devolves   to    a   claim      under    the    Victim    and   Witness

Protection Act (“VWPA”), 18 U.S.C. § 3663.                    In a complex analysis


     2
      Although the CVRA provides the vehicle for Petitioner to
assert her right to restitution, it does not create an independent
obligation for a district court to order or a defendant to pay such
an award. 18 U.S.C. § 3771(a)(6) (protecting the right “to full
and complete restitution as provided for in law” (emphasis added)).
Rather, the CVRA merely protects the right to receive restitution
that is provided for elsewhere. Id.
        3
      Our review of the record causes some concern due to the
absence of discussion of the applicability--or lack thereof--of the
conditions set forth in 18 U.S.C. § 3563(a)(2) to Purdue’s sentence
of probation.     It is true that the district court had the
discretion to award, or not award, restitution as a condition of
Purdue’s probation. See § 3563(a)(2). However, the district court
does not appear to have made the specific findings required to
support the exercise of its discretion in that regard. This is no
criticism of the district court; it is unclear whether Petitioner
called to its attention the requirements of § 3563(a)(2), on which
her petition relies heavily. Regardless, because of our ultimate
conclusion, any error in that regard was harmless.
        4
      Because Petitioner has focused her petition solely on the
district court’s denial of her request for restitution from Purdue,
we have no cause to address any of the other myriad issues raised
or address in the sentencing proceedings below.

                                             5
that we need not fully unravel in this opinion, Petitioner contends

that, because Purdue pleaded guilty to a felony and was sentenced

to   probation,   the   district   court   was   required   to   award   her

restitution under § 3663 as a condition of Purdue’s probation.

Based on our review of the record, however, we cannot conclude that

Petitioner qualifies as a “victim” under § 3663, a threshold

showing necessary for an award of restitution thereunder.

      The VWPA empowers a district court to order a defendant to pay

various forms of restitution to a victim of his conduct.             See §

3663(b).    However, § 3663 “does not authorize a district court to

order restitution to all individuals harmed by a defendant's

criminal conduct.” See United States v. Blake, 81 F.3d 498, 506-07

(4th Cir. 1996). Restitution awards are limited to individuals who

qualify as “victims” under the statute.          Id.

      For purposes of § 3663, “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.”               18 U.S.C. §

3663(a)(2).5   “For a person to be considered a victim under § 3663,

the act that harms the individual must be . . . conduct underlying

an element of the offense of conviction . . . .”       Blake, 81 F.3d at

506-07.    In other words, the mere fact that an injury is related to

a crime is insufficient for restitution; there must be a “direct



      5
      For purposes of this analysis, we assume that Purdue’s
offense is one for which restitution can be awarded under § 3663.

                                    6
and proximate” connection between the two to support an award under

§ 3663.

     For example, in Blake, we held that a district court erred in

recognizing as victims individuals whose credit cards were stolen

by a defendant who ultimately pleaded guilty to unauthorized use of

the credit cards.       81 F.3d at 506-07.        The defendant was not

convicted for any charges related to the actual theft of the cards.

Id. at 506. Although the defendant could not have accomplished the

crime for which he was convicted without stealing the credit cards,

we held that the thefts of the cards could not support restitution

under § 3663 because they did not constitute an element of the

offense of conviction.       Id. at 506-07.        In other words, the

connection between the theft of the cards and the ultimate offense

of conviction was sufficiently attenuated to preclude the victims

of the thefts from qualifying as “victims” under the express text

of § 3663.

     The holding in Blake is instructive to us here.             Although we

are not unsympathetic to the hardships that Petitioner has faced

due to her OxyContin addiction, we cannot conclude that they were

“directly    and   proximately”   related   to   the   conduct    underlying

Purdue’s offense of conviction so as to justify restitution under

§ 3663.     Purdue pleaded guilty to introducing a misbranded drug

into interstate commerce with the intent to defraud or mislead. 21

U.S.C. §§ 331(a), 333(a)(2).      In order to qualify as a victim under


                                    7
§ 3663, Petitioner would have to demonstrate that her injuries

flowed “directly and proximately” from the conduct underlying one

of the elements of this offense.

     Petitioner does not proffer, in either her affidavit or victim

impact statement, any evidence from which we can conclude that she

suffered “direct and proximate” harm from Purdue’s misbranding of

OxyContin. She presents no evidence--nor does she allege--that she

directly relied on--or was even aware of--any of the false or

misleading information about OxyContin disseminated by Purdue.

Even assuming that such information fostered common misconceptions

of which Petitioner ultimately became aware, the chain of causation

between Purdue’s conduct and her addiction is too attenuated to

support application of § 3663.6

     Because we conclude that Petitioner does not qualify as a

“victim”   under   §   3663   and,   therefore,   is   not   entitled   to

restitution, we cannot conclude that the district court abused its

discretion in denying her motion under the CVRA to seek such

restitution.




     6
      We emphasize that our discussion of causation here is limited
to the narrow context of interpreting whether Petitioner was
“directly and proximately harmed” within the meaning of §
3663(a)(2). We express no view regarding any issue other than the
applicability of § 3663, including issues of causation in a civil
context.

                                     8
                             IV.

     Based on the foregoing, Jane Doe’s petition for a writ of

mandamus is

                                                       DENIED.




                              9
KING, Circuit Judge, concurring in the denial of mandamus:

     I agree with my good colleagues that we are obliged to deny

Jane Doe’s petition for a writ of mandamus.         In my view, however,

there is no need to resolve the issue of whether Doe has forecast

adequate proof of causation to establish that she was a “victim” of

the defendants’ misbranding of OxyContin.      Indeed, it is premature

and counterproductive to address causation — a complicated and

contentious issue apparently at the heart of OxyContin-related

cases pending across the country — in our rush to dispose of Doe’s

petition within the oppressive time limits imposed by the Crime

Victims’ Rights Act (the “CVRA”).        See 18 U.S.C. § 3771(d)(3)

(obliging court of appeals to decide CVRA mandamus petition within

seventy-two hours).      As the district court observed when it denied

the restitution requests of Doe and others, resolution of the issue

of causation would require “litigation over many months, if not

years, . . . before final judgment in this case could be entered.”

United States v. Purdue Frederick Co., No. 1:07CR00029, slip op. at

13 (W.D. Va. July 23, 2007).

     Instead, I would deny Jane Doe’s petition on a comparatively

simple and obvious ground:        even assuming she qualifies as a

“victim” of the defendants’ crimes, there is no legal basis for her

claim   to   mandatory   restitution.    As   the   panel   majority   has

correctly observed, the CVRA itself “does not create an independent

obligation for a district court to order or a defendant to pay such


                                   10
an award.”          Ante at 5 n.2; see also 18 U.S.C. § 3771(a)(6)

(recognizing that crime victims have “[t]he right to full and

timely restitution as provided in law” (emphasis added)).                       Doe has

raised,   at    various      points     in     these    proceedings,        three   other

statutes in support of her mandatory restitution claim: the Victim

and Witness Protection Act of 1982, 18 U.S.C. § 3663 (the “VWPA”);

the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A

(the    “MVRA”);     and    the     provision      of    Title   18    pertaining      to

conditions of probation, 18 U.S.C. § 3563.                  Unfortunately for Doe,

the defendants’ misbranding offenses are not included in the lists

of federal crimes for which restitution can be ordered under either

the    VWPA    or    the    MVRA.        See      18    U.S.C.   §§    3663(a)(1)(A),

3663A(c)(1)(A).        And, although a district court is entitled to

order restitution when it imposes a sentence of probation on a

felony offense not covered by the VWPA or the MVRA, such an award

is    discretionary        and    not   mandatory.         See   id.    §    3563(a)(2)

(providing that sentencing court must require defendant to abide by

one of three conditions — with restitution being just one option —

unless court finds on record that “extraordinary circumstances”

render each such condition “plainly unreasonable”).

       Frankly, I would vastly prefer that the CVRA afforded us a

fair opportunity to delve into the complex factual and legal

underpinnings of Jane Doe’s mandatory restitution claim (which the

parties themselves barely had time to develop and discuss in their


                                             11
submissions    in   these   proceedings).      Under   the   circumstances

presented, I am simply unable to agree with the panel majority’s

decision to reach and rule on the difficult question of causation.

     Nonetheless, I concur in the denial of Jane Doe’s petition for

a writ of mandamus to the distinguished presiding district judge,

because   I   can   see   no   valid   legal   basis   for   her   mandatory

restitution claim.




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