In re: Amy & Vicky

Circuit precedent remains binding “in the absence of ‘intervening higher authority’ that is ‘clearly irreconcilable,’” and a court abuses its discretion when it denies restitution based on a presentence report indicating there is insufficient evidence to establish a causal connection between defendant’s offense and petitions’ losses when, in fact, the record contains sufficient evidence to establish such a causal connection.

The Ninth Circuit reviewed a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771, the Crime Victims’ Rights Act (“CVRA”). The district court denied petitioners “Amy” and “Vicky,” child pornography victims, restitution. Petitioners argued that the district court erred by requiring a “proximate causation between the defendant’s offense conduct and the victim’s losses” as required under United States v. Kennedy. The panel rejected Petitioners’ proposition to overrule Kennedy and held that the district court did not err by imposing a proximate cause requirement when applying 18 U.S.C. § 2259(b)(3). However, the panel found that the district court abused its discretion by relying on the presentence report’s recommendation and refusing to order any restitution. The report did not recommend restitution solely because the writer felt he “lacked sufficient information to show the Government met its burden of establishing a causal connection.” The panel’s review of the record reflected that the petitioners provided sufficient evidence to establish a causal connection between defendant’s offense and petitioners’ losses. The panel vacated the judgment and ordered the district court to determine a proper amount of restitution. DENIED in part; GRANTED in part, and REMANDED with instructions.