FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: AMY & VICKY, Child

Pornography Victims.

AMY & VICKY, Child Pornography

Victims,

Petitioners,

v.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

CALIFORNIA, SACRAMENTO,

Respondent,

JOSEPH CANTRELLE,

Defendant-Real Party in

Interest,

UNITED STATES OF AMERICA,

Plaintiff-Real Party in

Interest.

No. 13-71486

D.C. No.

2:11-cr-00542-

GEB-1

OPINION

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
2 IN RE: AMY & VICKY

 The panel unanimously concludes this case is suitable for decision *

without oral argument. See Fed. R. App. P. 34(a)(2).

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

Submitted May 1, 2013*

Filed May 3, 2013

Before: Stephen S. Trott, Richard A. Paez, and 

Jacqueline H. Nguyen, Circuit Judges.

Per Curiam Opinion

SUMMARY

**

Criminal Law

A motions panel denied a petition for writ of mandamus

brought by child pornography victims challenging the

methodology applied by the district court on remand in

determining the amount of restitution. 

The panel held that the district court did not commit legal

error or abuse its discretion in declining to impose joint and

several liability on the defendant for all of their losses. The

panel also noted that there is no intervening higher authority

that is clearly irreconcilable with United States v. Kennedy,

543 F.3d 1251 (9th Cir. 2011), which therefore remains

binding.
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; James R.

Marsh, Marsh Law Firm, PLLC, White Plains, New York;

and Carol L. Hepburn, Carol L. Hepburn PS, Seattle,

Washington, for Petitioners.

Benjamin B. Wagner, United States Attorney, and Camil

Skipper, Assistant United States Attorney, Office of the

United States Attorney, Sacramento, California, for PlaintiffReal Party in Interest.

Kresta Nora Daly, Barth Tozer & Daly, LLP, Sacramento,

California, for Defendant-Real Party in Interest.

OPINION

PER CURIAM:

Amy and Vicky, child pornography victims, petition for

a writ of mandamus pursuant to 18 U.S.C. § 3771, the Crime

Victims Rights Act (“CVRA”). Finding no legal error or

abuse of discretion, we deny the petition.

This matter was previously before the court in a CVRA

petition that challenged the district court’s denial of

restitution to petitioners “Amy” and “Vicky.” See In re: Amy

(“Amy I”), 710 F.3d 985, 986 (9th Cir. 2013) (per curiam).

We denied petitioners’ request to overrule United States v.

Kennedy, 643 F.3d 1251 (9th Cir. 2011), noting that Kennedy

remains binding on this court in the absence of intervening

higher authority that is clearly irreconcilable with our circuit
4 IN RE: AMY & VICKY

precedent. 710 F.3d at 987. Kennedy requires a court to

“identify a causal connection between the defendant’s offense

conduct and the victim’s specific losses” before awarding

restitution pursuant to 18 U.S.C. § 2259. 643 F.3d at 1262.

The Amy I court concluded, however, that “the district court

abused its discretion in refusing to order any restitution,”

finding petitioners had “provided sufficient evidence to

establish a causal connection between defendant’s offense

and petitioners’ losses.” 710 F.3d at 987. The court

remanded for further proceedings to determine the amounts

of restitution to be awarded to Amy and Vicky. Id.

On remand, the district court adopted the approach for

determining restitution suggested by the Sixth Circuit in

United States v. Gamble, 709 F.3d 541, 553–54 (6th Cir.

2013). Specifically, the district court determined the relevant

“pool” of each victim’s provable losses by excluding any

losses incurred prior to the offense date, then divided that

pool of losses by the number of standing restitution orders.

Utilizing that methodology, the district court awarded

petitioner Amy $17,307.44 and petitioner Vicky $2,881.05 in

restitution. Petitioners challenge the district court’s order.

In reviewing a CVRA mandamus petition, this court

“must issue the writ whenever we find that the district court’s

order reflects an abuse of discretion or legal error,” and need

not balance the factors outlined in Bauman v. U.S. Dist.

Court, 557 F.2d 650, 654–55 (9th Cir. 1977), in deciding

these petitions. Kenna v. U.S. Dist. Court, 435 F.3d 1011,

1017 (9th Cir. 2009).

Petitioners first contend that the district court applied an

improper methodology for determining the appropriate

amount of restitution to be awarded. Because 18 U.S.C.
IN RE: AMY & VICKY 5

§ 2259(b)(1) directs that an “order of restitution under this

section shall direct the defendant to pay the victim . . . the full

amount of the victim’s losses,” petitioners assert that the

district court’s award of only a portion of the requested

restitution contravenes the plain language of the statute.

Petitioners urge us to reverse the district court’s restitution

order and impose joint and several liability on defendant

Joseph Cantrelle for all of their losses. Petitioners also

reassert their argument that Kennedy was wrongly decided

and should be overruled.

The district court did not commit legal error or abuse its

discretion in declining to impose joint and several liability in

this case. The appropriate method for calculating a restitution

award under 18 U.S.C. § 2259 is an open question in this

Circuit. See Kennedy, 643 F.3d at 1265. Nowhere in

18 U.S.C. §§ 2259 or 3664(h), the general federal criminal

restitution statute, is joint and several liability expressly

authorized. Further, numerous sister courts have concluded

that § 3664(h) only allows for joint and several liability where

the defendants from whom joint liability is sought are

defendants in the same case. See, e.g., United States v. Fast,

709 F.3d 712, 723 n.6 (8th Cir. 2013); United States v.

Laraneta, 700 F.3d 983, 992–93 (7th Cir. 2012); United

States v. Aumais, 656 F.3d 147, 156 (2d Cir. 2011).

Moreover, there is a clear split in authority on this issue.

Several circuit courts have expressly declined to impose joint

and several liability in the context of a restitution award

under 18 U.S.C. § 2259(b)(1). See, e.g., Gamble, 709 F.3d at

552; Fast, 709 F.3d at 723 n.6; Aumais, 656 F.3d at 156. Of

the circuit courts to consider the issue, only the Fifth Circuit

has imposed joint and several liability for restitution pursuant

to § 2259. See In re Amy Unknown, 701 F.3d 749, 769–71
6 IN RE: AMY & VICKY

(5th Cir. 2012) (en banc), petitions for cert. filed,

__ U.S.L.W. __ (U.S. Jan 31, 2013) (Nos. 12-8505, 12-8561).

The Fifth Circuit, however, simultaneously rejected the

proximate cause requirement adopted by this court in

Kennedy. See 701 F.3d at 765–66. Under these

circumstances, the district court did not err in declining to

impose joint and several liability.

Petitioners’ request that this court overrule Kennedy was

previously considered and denied. See Amy I, 710 F.3d at

987. Absent “intervening higher authority” that is “clearly

irreconcilable” with our circuit precedent, Kennedy remains

binding on this panel. Miller v. Gammie, 335 F.3d 889, 893,

900 (9th Cir. 2003) (en banc). No such authority exists.

Indeed, petitioners concede as much in their petition and

merely seek to preserve the issue for future proceedings in

this court or before the United States Supreme Court.

Accordingly, the petition for a writ of mandamus is denied.

DENIED.