                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 IN RE: AMY & VICKY, Child                         No. 13-70858
 Pornography Victims.
                                                     D.C. No.
                                                  2:11-cr-00542-
 AMY & VICKY, Child Pornography                       GEB-1
 Victims,

                               Petitioners,          OPINION

                     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
  Garland E. Burrell, Jr., Senior District Judge, Presiding

                   Submitted March 8, 2013*


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

                       Filed March 18, 2013

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

                        Per Curiam Opinion


                           SUMMARY**


                           Criminal Law

    A motions panel issued a per curiam opinion denying in
part and granting in part a petition for a writ of mandamus
challenging the district court’s denial of restitution.

    The panel wrote that United States v. Kennedy, 643 F.3d
1251 (9th Cir. 2011), which required a proximate causation
between the defendant’s offense conduct and the victim’s
losses, is binding on the panel, notwithstanding a different
interpretation of 18 U.S.C. § 2259 by the Fifth Circuit; and
that the district court therefore did not err in imposing a
proximate cause requirement when applying 18 U.S.C.
§ 2259(b)(3).

    The panel held that the district court abused its discretion
in refusing to order any restitution. The panel wrote that its
review of the record demonstrates that petitioners provided
sufficient evidence to establish a causal connection between
defendant’s offense and petitioners’ losses.

  **
     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: AMY & VICKY                               3

                             COUNSEL

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

Camil Skipper, Assistant United States Attorney, Office of
the United States Attorney, Sacramento, California, for
Respondent.

Kresta Nora Daly, Barth Tozer & Daly, LLP, Sacramento,
California, for Real Party in Interest.


                              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, 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).




 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.
4                    IN RE: AMY & VICKY

     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 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
                    IN RE: AMY & VICKY                        5

Supreme Court and of this court sitting en banc).
Accordingly, the district court did not err in imposing a
proximate cause 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.
