In re: Amy & Vicky

Because there is no binding precedent for calculating restitution under 18 U.S.C. § 2259, it is not an abuse of discretion when a court declines to impose joint and several liability.

Child pornography victims, Amy and Vicky, petitioned for a writ of mandamus pursuant to 18 U.S.C. § 3771, the Crime Victims Rights Act (“CVRA”), urging the panel to reverse the district court’s restitution order and “impose joint and several liability for all their losses.” By adopting the Sixth Circuit’s approach in determining restitution, the district court determined the relevant “pool” of each victim’s provable losses by “excluding any losses incurred prior to the offense date, then divid[ing] that pool of losses by the number of standing restitution orders.” Reviewing the CVRA mandamus petition for an abuse of discretion of legal errors, the Ninth Circuit held that the district court did not commit legal error or abuse its discretion when it declined to impose joint and several liability because there is no binding precedent for calculating restitution under 18 U.S.C. § 2259. Furthermore, circuit courts are split on this issue, with the Fifth Circuit as the only circuit to impose joint and several liability for restitution pursuant to § 2259. Petitioners also reasserted their argument that United States v. Kennedy should be overruled. Like the district court, the panel denied the request to overrule Kennedy. Without “‘intervening higher authority’ that is ‘clearly irreconcilable’ with our circuit precedent, Kennedy remains binding on this panel.” DENIED.