PRIMER

CRIME VICTIMS’ 

RIGHTS

January 2019

Prepared by the Office of General Counsel, U.S. Sentencing Commission

Disclaimer: This document is offered by the Commission’s Legal Staff to assist in understanding 

and applying the sentencing guidelines. The information in this document does not represent the 

official position of the Commission, and it should not be considered definitive or comprehensive. 

The information in this document is not binding upon the Commission, courts, or the parties in 

any case. Pursuant to Fed. R. App. P. 32.1 (2007), some cases cited in this document are 

unpublished. Practitioners should be advised that citation of such cases under Rule 32.1 requires 

that such opinions be issued on or after January 1, 2007, and that they either be “available in a 

publicly accessible electronic database” or provided in hard copy by the party offering them for 

citation.
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TABLEOF CONTENTS

I. INTRODUCTION..................................................................................................................................................................1

II. STATUTES AND IMPLEMENTING RULES....................................................................................................................1

A. THE CRIME VICTIMS’ RIGHTS ACT ...............................................................................................................................1

B. RESTITUTION STATUTES...............................................................................................................................................4

C. RESTITUTION FOR VICTIMS OF CHILD PORNOGRAPHY OFFENSES .............................................................................7

D. FEDERAL RULES OF CRIMINAL PROCEDURE 32 & 60.................................................................................................9

E. USSG §6A1.5 (CRIME VICTIMS’ RIGHTS)............................................................................................................... 10

F. USSG §§5B1.3 AND 5D1.3 (CONDITIONS OF PROBATION AND SUPERVISED RELEASE).................................... 11

G. USSG §5E1.1 (RESTITUTION) AND USSG §8B1.1 (RESTITUTION – ORGANIZATIONS) .................................... 11

III. DETERMINING WHO IS A CRIME VICTIM FOR SENTENCING PURPOSES ..................................................... 13

IV. NOTICE OF, AND PARTICIPATION IN, THE SENTENCING PROCESS............................................................... 19

V. IMPLEMENTING THE CVRA AT THE SENTENCING HEARING........................................................................... 22

VI. APPELLATE REVIEW...................................................................................................................................................... 23

VII. POST-SENTENCING PROCEEDINGS........................................................................................................................... 26

A. POST-SENTENCING JUDICIAL PROCEEDINGS .............................................................................................................. 26

B. PAROLE HEARINGS ..................................................................................................................................................... 27
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I. INTRODUCTION

This primer provides a general overview of crime victims’ rights under the Crime 

Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the 

Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act 

(“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018.

The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related 

restitution provisions through USSG §§5E1.1 and 8B1.1. Although the CVRA applies broadly 

to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily 

on its application to sentencing and post-sentencing issues, including revocations of 

probation, supervised release, habeas proceedings, and parole proceedings.

1 This primer is 

not intended as a comprehensive compilation of case law or as a substitute for independent 

research and primary authority.

II. STATUTES AND IMPLEMENTING RULES

A. THE CRIME VICTIMS’RIGHTS ACT 

Officially titled the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, 

and Nila Lynn Crime Victims’ Rights Act,

2 the CVRA’s passage in 2004 significantly expanded 

the rights of federal crime victims and places an explicit duty on federal courts to ensure that 

victims are afforded those rights.

3 The court must additionally take up and decide any 

motion asserting a victim’s right forthwith.4 The CVRA’s aim is to promote and ensure victim 

participation in the criminal process and restitution for harm suffered. Most salient to 

sentencing, its substantive targets are the right to notice of public court proceedings 

involving the crime, the right to be “reasonably heard” at any sentencing proceeding, and the 

 

1 A previously released Commission educational video contains additional information aimed to help crime 

victims exercise their right to participate in the sentencing process. See U.S. SENTENCING COMM’N, VICTIMS’ RIGHTS 

AND FEDERAL SENTENCING (Oct. 28, 2014), https://www.ussc.gov/education/videos/victims-rights-and-federalsentencing. 

2 The CVRA was included as part of the larger Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (eff. 

Oct. 30, 2004). A 2015 amendment to the CVRA, promulgated as part of the Justice for Victims of Trafficking Act 

of 2015, Pub. L. No. 114-22, 129 Stat. 227 (eff. May 29, 2015), added two additional subsections, 18 U.S.C. 

§§ 3771(a)(9) & (a)(10), which codified specific government obligations to victims, to the list of substantive 

rights accorded to victims.

3 18 U.S.C. § 3771(b)(1) (“In any court proceeding involving an offense against a crime victim, the court shall 

ensure that the crime victim is afforded the rights described in [the CVRA].”).

4 18 U.S.C. § 3771(d)(3); In re Simons, 567 F.3d 800, 801 (6th Cir. 2009) (holding that the district court’s 

unexplained, three-month passage of time without ruling on a victim’s motion can be construed as an effective 

denial of rights under the CVRA).
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right to full and timely restitution.

The CVRA defines the term “crime victim” as “a person directly and proximately 

harmed as a result of the commission of a Federal offense or an offense in the District of 

Columbia.”5 The CVRA does not further define “person;” consequently, the scope of that term 

is informed by the Dictionary Act, 1 U.S.C. § 1, which provides that “the word[] ‘person’ . . . 

shall include corporations, companies, associations, firms, partnerships, societies, and joint 

stock companies, as well as individuals.”6 As a result, most, if not all, non-corporeal entities 

will be considered “victims” for CVRA and sentencing purposes.

7 The term “victim” does not, 

however, include the federal government nor any state, local, tribal, or foreign government or 

agency thereof.8

The statute affords victims ten substantive rights. Seven of these rights are directly

applicable to sentencing proceedings:

(a) Rights of crime victims.--A crime victim has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, 

or any parole proceeding, involving the crime or of any release or escape of the 

accused.

. . .

(4) The right to be reasonably heard at any public proceeding in the district court 

involving release, plea, sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided in law.

 

5 18 U.S.C. § 3771(e)(2)(A). Case law interpreting the CVRA’s direct and proximate cause requirements is 

discussed in detail in Section III, infra.

6 United States v. Kasper, 60 F. Supp. 3d 1177, 1178 (D.N.M. 2014) (where “person" is not specifically defined in 

the CVRA the default definition in the Dictionary Act applies). 

7 For ease of reading, this primer employs the term “person” when discussing CVRA victims, notwithstanding 

the fact that a victim can be an institutional entity.

8 1 U.S.C. § 1. Such governmental agencies may, however, qualify for restitution as a “victim” under parallel 

restitution statutes. See 18 U.S.C. § 3664(i).
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(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim’s dignity and 

privacy.9

A separate subsection, 18 U.S.C. § 3771(d), specifies procedural mechanisms that

guide and vindicate the CVRA’s substantive rights. Notable among these are the bestowal of 

personal standing to a victim (or the victim’s lawful representative) to assert the substantive 

rights afforded,10 the grant of sentencing court discretion to fashion reasonable alternative 

procedures to give effect to the CVRA in cases where there are a large number of victims,11

and an expedited mandamus appeal procedure should a putative victim be denied the relief 

sought.12 Section 3771(d) also restricts the relief available to a victim, cautioning that it does 

not provide grounds for a new trial and will only permit reopening of a plea or sentence if 

certain procedural benchmarks have been met.13 Significantly, the CVRA declares that it does 

not authorize a cause of action for damages and “shall [not] be construed to impair the 

prosecutorial discretion of the Attorney General or any officer under his direction.”14 

However, the CVRA requires that prosecutors make their “best efforts” to see that crime 

victims are notified and accorded their rights.15 Prosecutors shall also advise the victim that 

the victim can seek the assistance of counsel with respect to the victim’s rights.

16

Regarding sentencing proceedings, the CVRA establishes two separate but 

corresponding sets of rights. The first set relates to the ability of victims to influence the 

length and character of the sentence a defendant receives—specifically, how the district 

court is required to reasonably hear the victim and conduct sentencing proceedings without 

unreasonable delay.17 Aside from the CVRA, however, a sentencing court has latitude to 

consider all information relevant to the background, character, and conduct of a defendant.18

 

9 18 U.S.C. § 3771(a).

10 18 U.S.C. § 3771(d)(1).

11 Id. § 3771(d)(2).

12 Id. § 3771(d)(3). The unique aspects of the CVRA’s mandamus appeals feature are discussed in more detail in 

Section VI, infra. 

13 Id. § 3771(d)(5).

14 Id. § 3771(d)(6).

15 Id. § 3771(c)(1).

16 Id. § 3771(c)(2).

17 Id. §§ 3771(a)(2), (a)(4), (a)(7). 

18 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and 
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Consequently, a sentencing court may receive impact statements at sentencing in some 

manner regardless of whether the putative victims meet the CVRA’s criteria for the definition 

of a victim.19 

The second set of rights permits and guides victims’ access to the significant 

restitution provisions of the VWPA (codified at 18 U.S.C. § 3663) and the parallel provisions 

of the MVRA (codified at various provisions including 18 U.S.C. §§ 3556, 3663A, and 3664).

The sentencing court’s restitution decision can have a substantial and lasting impact on 

putative victims. Consequently, litigation interpreting the CVRA is largely conducted against 

the backdrop of a party’s effort (or the government’s effort on behalf of a person) to be 

accorded restitution. 

B. RESTITUTION STATUTES

In addition to conferring the right to participate in the sentencing hearing, designation 

as a victim under the CVRA assures the right to full and timely restitution for any harm 

caused by a defendant’s criminal conduct.20 The CVRA, however, is not itself a substantive 

statutory basis for an order of restitution.21 Rather, the CVRA’s mandate of “full and timely 

restitution as provided in law” simply ensures compliance with the already existing 

 

conduct of a person convicted of an offense which a court of the United States may receive and consider for the 

purpose of imposing an appropriate sentence.”); USSG §1B1.4 (“In determining the sentence to impose within 

the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without 

limitation, any information concerning the background, character and conduct of the defendant, unless 

otherwise prohibited by law.”); see also Pepper v. United States, 562 U.S. 476, 488 (2011) (section 3661 permits 

a sentencing court to “consider the widest possible breadth of information about a defendant”). 

19 See, e.g., United States v. Fata, 650 F. App’x 260, 265 (6th Cir. 2016), cert. denied, 137 S. Ct. 2175 (2017) 

(stating that the district court had discretion to consider oral and written statements from the defendant’s 

patients, whose status as “victims” had not been determined, at a sentencing for health care fraud); United 

States v. Weiner, 518 F. App’x 358, 367 (6th Cir. 2013) (explaining that the testimony of the mother of a victim 

of unrelated and uncharged sexual assault was relevant to the background, character, and conduct of the

defendant regardless of whether she was technically a “victim” under the CVRA); United States v. Ortiz, 636 F.3d 

389, 393–94 (8th Cir. 2011) (holding that the district court properly permitted merchants’ statements as to 

retail theft losses suffered nationwide in an organized shoplifting scheme because limiting statements to the 

scope of offense “would deprive the district courts of information which could aid them in determining whether 

to vary from the Guidelines based upon policy considerations”); United States v. Spiwak, 377 F. App’x 319, 323 

(4th Cir. 2010) (finding no error in the government presenting prior sexual abuse victim’s testimony to support 

upward departure in child pornography possession case even though witness was not a victim under the CVRA).

But see United States v. Ulbricht, 858 F.3d 71, 126 (2d Cir. 2017), cert. denied, 138 S. Ct. 2708 (2018) (affirming 

the conviction and life sentence for the operator of the Silk Road website, but chiding the government for 

“hammer[ing] the [harm of drug use] point home with unavoidably emotional victim impact statements by 

parents of two of the decedents” absent a specific link of drugs sold to the children’s death).

20 18 U.S.C. § 3771(a)(6).

21 See, e.g., In re Her Majesty the Queen in Right of Canada, 785 F.3d 1273, 1275 (9th Cir. 2015).
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restitution statutes, including the VWPA and the MVRA.22

The VWPA, passed in 1982, gives district courts discretion to order a defendant who is 

convicted of certain criminal offenses to pay restitution in full or in part to the victim(s) of 

that offense.23 In determining whether to order restitution under the VWPA, courts balance 

the amount of loss suffered by the victim, the financial resources and needs of the defendant, 

and other factors that the court deems appropriate.24 In 1996, however, Congress passed the 

MVRA, which requires sentencing courts to order restitution for a broad class of offenses, 

including offenses that constitute crimes of violence, offenses against property under Title 18 

(including offenses committed by fraud or deceit), offenses relating to tampering with 

consumer products, and offenses related to theft of medical products in which an identifiable 

victim has suffered a physical injury or pecuniary loss.25 For additional offenses that are not 

covered by the VWPA or MVRA or another Title 18 statute,26 courts may impose restitution 

as a condition of probation pursuant to the Federal Probation Act.27 

Regardless of which statute governs, the court may order restitution in any criminal 

case to the extent agreed to by the parties in a plea agreement.28 However, both the VWPA 

and the MVRA permit a sentencing court to bypass the restitution procedure if it finds that 

the number of victims or fact-finding complexity unduly burdens the sentencing process.29 

This “complexity exception” is applicable to crimes of fraud and deceit and certain Controlled 

Substance Act offenses, but does not apply to crimes of violence.30 However, “[t]he 

complexity of issues has not discouraged district courts from ordering restitution in criminal 

 

22 Id. at 1275–76 (noting that “full and timely restitution as provided by law” means reliance on restitution 

statutes independent of the CVRA). 

23 18 U.S.C. §§ 3663(a)(1)(A)–(B).

24 Id. § 3663(a)(1)(B)(i).

25 18 U.S.C. §§ 3663A(a)(1), (c)(1).

26 Six additional Title 18 statutes include mandatory restitution provisions: § 228 (child support); § 1593 

(Peonage, Slavery, and Trafficking in Persons); § 2248 (abusive sexual contact); § 2264 (domestic violence and 

stalking); § 2327 (telemarketing fraud); § 2259 (child pornography). Restitution for victims of child 

pornography offenses is discussed in Section II.C, infra.

27 18 U.S.C. 3563(b)(2).

28 18 U.S.C. § 3663(a)(3); 18 U.S.C. § 3663A(a)(3).

29 18 U.S.C. § 3663(a)(1)(B)(ii), 18 U.S.C. § 3663A(c)(3).

30 18 U.S.C. §§ 3663A(c)(3).
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cases.”31 The procedural provisions regarding restitution “reinforce th[e] substantive 

purpose of ordering restitution, namely, that the law seeks primarily to assure that victims of 

a crime receive full restitution.”32 

Restitution ordered for a victim may include the return of any property taken or 

payment of its value, payment for medical expenses, psychiatric or psychological care, 

physical therapy or loss of income, or payment of funeral expenses.33 Restitution also covers 

other expenses incurred during participation in the investigation or prosecution of the 

offense or attendance at proceedings related to the offense, but those damages are limited to 

cost incurred related to government investigations and criminal proceedings, and not to 

collateral matters.34 

Under the MVRA, the court shall order the full amount of the restitution to the victim 

without consideration of the economic circumstances of a defendant.35 The defendant’s 

economic circumstances—including projected earnings, other income, and any financial 

obligations—are only relevant to the schedule of payments.

36 The restitution order may 

require the defendant to make a single, lump-sum, payment, partial payments at specified 

intervals, in-kind payments, or a combination of payments at specified intervals and in-kind

payments.37 An in-kind payment may be in the form of the return or replacement of property 

or, if the victim agrees, of services rendered to the victim or a person or organization other 

than the victim.38 The restitution may be made to the victim, the victim’s estate, a person 

agreed to by the parties in a plea agreement,39 or to an insurer or other person who has 

provided or is obligated to provide compensation for the victim’s loss.40 A court shall ensure 

 31 United States v. Brennan, 526 F. Supp. 2d 378, 384 (E.D.N.Y. 2007).

32 Dolan v. United States, 560 U.S. 605, 611 (2010) (holding neither the language nor the structure of the MVRA 

requires denying the victim restitution in order to remedy a missed hearing deadline).

33 18 U.S.C. § 3663(b); 18 U.S.C. § 3663A(b).

34 Lagos v. United States, 138 S. Ct. 1684, 1688 (2018).

35 18 U.S.C. § 3664(f)(1)(A).

36 18 U.S.C. § 3664(f)(2); United States v. Inouye, 821 F.3d 1152, 1156-57 (9th Cir. 2016).

37 18 U.S.C. § 3664(f)(3)(A); USSG §5E1.1(e).

38 18 U.S.C. § 3664(f)(4); USSG §5E1.1(e).

39 18 U.S.C. § 3663(a)(1)(A); 18 U.S.C. § 3663A(a)(1).

40 18 U.S.C. § 3664(j)(1).
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that all victims receive full restitution before the United States receives any restitution.41

C. RESTITUTION FOR VICTIMS OF CHILD PORNOGRAPHY OFFENSES

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 201842

(“the Amy, Vicky, and Andy Act”) amended 18 U.S.C. § 2259 to modify procedures for 

determining the amount of mandatory restitution in child pornography cases.

Victims of child pornography production crimes are entitled to receive restitution for 

the full amount of their losses.43 As amended, section 2259 requires a court sentencing a 

defendant convicted of “trafficking” child pornography—which is defined by reference to 

statutory provisions to include advertisement, distribution, receipt, reproduction, and 

possession of child pornography44—to first determine the full amount of the victim’s losses 

and then to order restitution for the amount reflecting the defendant’s relative role in the 

causal process.45 The full amount of the victim’s loss includes the following: 

[A]ny costs incurred, or that are reasonably projected to be incurred in the future, by 

the victim, as a proximate result of the offenses involving the victim, and in the case of 

trafficking in child pornography offenses, as a proximate result of all trafficking in 

child pornography offenses involving the same victim, including—

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) reasonable attorneys’ fees, as well as other costs incurred; and

(F) any other relevant losses incurred by the victim.46

After determining the full loss amount for each identifiable child pornography 

trafficking victim, the sentencing court must impose a minimum of $3,000 in restitution for 

 

41 Id. § 3664(i).

42 Pub. L. No. 115-299, 132 Stat 4383 (Dec. 7, 2018).

43 18 U.S.C. 2259(b)(1). 

44 “[T]he term ‘trafficking in child pornography’ means conduct proscribed by section 2251(d) [advertising], 

2252 [transport, receive, distribute, reproduce, or possess child pornography], 2252A(a)(1) through (5) 

[transport, receive, distribute, reproduce, or possess child pornography], [and] 2252A(g) [Child Exploitation 

Enterprise].” Id. § 2259(c)(3).

45 Id. § 2259(b)(2)(B).

46 Id. § 2259(c)(2)(A)-(F).
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each victim.47 However, “the victim’s total aggregate recovery shall not exceed the full 

amount of the victim’s demonstrated loss.”48 Accordingly, “[a]fter the victim has received 

restitution in the full amount of the victim’s losses found in any case involving that victim 

that has resulted in a final restitution order[,] . . . the liability of each defendant who is or has 

been ordered to pay restitution for such losses to that victim is terminated.”49

The Amy, Vicky, and Andy Act also creates a fund—the Child Pornography Victims 

Reserve (“CPVR”)—to compensate victims of trafficking in child pornography. Victims of 

child pornography trafficking offenses identified by the sentencing court have the option of 

electing to receive a one-time “defined monetary assistance” payment from the CPVR for 

$35,000 (indexed for inflation).50 Victims who obtain a “defined monetary assistance” 

payment are not barred from receiving restitution against any defendant for any other 

offense not covered by the Act.51 However, if a victim receives a “defined monetary 

assistance” payment and subsequently seeks additional restitution under the Act, the 

sentencing court must deduct the amount the victim received from the “defined monetary 

assistance” payment when determining the full amount of the victim’s losses.52 Conversely, if 

a victim collected a restitution payment pursuant to the Act for an amount greater than 

$35,000, the victim is ineligible to receive a “defined monetary assistance” payment.53 

The CPVR will be funded, in part, through special assessments levied on defendants. 

The Act provides that a sentencing court may assess defendants up to $17,000 for child 

pornography possession offenses, $35,000 for other offenses involving trafficking in child 

pornography, and up to $50,000 for child pornography production crimes.54 Sentencing 

courts “shall consider the factors set forth in [18 U.S.C. §§] 3553(a) and 3572” when 

determining the special assessment amount.55

The Amy, Vicky, and Andy Act also provides child pornography victims with the right to 

 

47 Id. § 2259(b)(2)(B).

48 Id. § 2259(b)(2)(C). 

49 Id.

50 Id. § 2259(d)(1)(A)-(D).

51 Id. § 2259(d)(2)(B).

52 Id. § 2259(d)(2)(C).

53 Id. § 2259(d)(3).

54 Id. § 2259A(a)(1)-(3).

55 Id. § 2259A(c).
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review the child pornography depicting them at a government facility or court for the 

purpose of furnishing expert testimony.56

The Amy, Vicky, and Andy Act does not apply retroactively. Defendants who committed 

a child pornography offense prior to December 7, 2018, but are sentenced after that date, are 

“subject to the statutory scheme that was in effect at the time the offenses were 

committed.”57

D. FEDERAL RULES OF CRIMINAL PROCEDURE 32 & 60

Two procedural rules, Federal Rules of Criminal Procedure 32 and 60, assist in 

implementing the CVRA.58 Rule 32 provides guidance to ensure the CVRA’s “reasonably 

heard” right is honored at sentencing. It requires a probation officer to include “information 

concerning any harm, including financial, social, psychological, and physical harm, done to or 

loss suffered by any victim of the offense . . . including the restitution needs of any victim of 

the offense” to form the basis of the victim impact statement in the pre-sentence report.59

Specifically, the victim impact statement should include the name of each victim; whether the 

victim has been contacted either directly or through a third party (e.g., the victim/witness 

coordinator); the outcome of such contact; and the type and amount of loss, separating losses 

involving property, bodily injury, social, psychological, or medical from other types of 

losses.60

To obtain this information, judiciary policy encourages probation officers to collect 

the names and contact information of the putative victims (if any) and to determine whether 

the case has been referred to the government’s victim coordinator.61 Probation officers are 

advised to interview victims to verify (or obtain if not previously provided by the 

government) the information required for the victim impact statement and to discuss, inter 

alia, the personal impact the crime had on the victims’ lives.62

 

56 Id. § 3509(m)(3).

57 Id. §2259B(d).

58 A 2008 amendment to Federal Rule of Criminal Procedure 1 incorporated the CVRA’s definition of crime 

victim into the entirety of the Federal Rules of Criminal Procedure by equating “victim” as used in the rules with 

“crime victim” as defined by § 3771(e). 

59 Fed. R. Crim. P. 32(c)(2)(C). 

60 Guide to Judiciary Policy, Vol. 8D, Ch. 2, § 250(b) (2009). 

61 Id. §§ 245.10(d), (f).

62 Id. § 250.10(b). 
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Through this process, the information victims provide may have a direct bearing on 

the sentence imposed because the Sentencing Guidelines contain various victim-related 

enhancements that are relevant to determining the applicable guideline range. Generally, 

although the government—not the victims—advocates for the application of any victimrelated sentencing enhancements before the court, the CVRA ensures victims have the right 

to be involved in the sentencing proceedings. 

A centerpiece of the CVRA is the indefeasible right of a victim to be heard at 

sentencing, a right akin to the defendant’s own right of allocution.63 Rule 32(i)(4)(B) 

provides guidance for carrying out this provision, requiring sentencing courts to “address 

any victim of the crime who is present at sentencing and . . . permit the victim to be 

reasonably heard.” Rule 32 drafters further clarified that “[a]bsent unusual circumstances, 

any victim who is present should be allowed a reasonable opportunity to speak directly to 

the judge.”64

Rule 60 largely mirrors the language of the CVRA in directing that crime victims be 

afforded the CVRA’s rights throughout all stages of a criminal proceeding, including 

sentencing.

65 The Advisory Committee note clarifies that a victim or a lawful representative 

of a victim may generally participate through counsel.66ING GUIDELINES PROVISIONS

E. USSG §6A1.5 (CRIME VICTIMS’RIGHTS)

The Sentencing Guidelines implement the CVRA through USSG §6A1.5 (Crime Victims’ 

Rights (Policy Statement)). Section 6A1.5 provides:

[i]n any case involving the sentencing of a defendant for an offense against a 

crime victim, the court shall ensure that the crime victim is afforded the rights 

described in 18 U.S.C. § 3771 and in any other provision of Federal law 

pertaining to the treatment of crime victims.

The guideline’s application note explains that “crime victim” has the same meaning as 

 

63 18 U.S.C. § 3771(a)(4); Kenna v. United States, 435 F.3d 1011, 1013 (9th Cir. 2006) (Kenna I) (CVRA’s aim of 

making victims independent participants was to change the long-held “assumption that crime victims should 

behave like good Victorian children—seen but not heard”); United States v. Moussaoui, 483 F.3d 220, 234 (4th 

Cir. 2007) (citing Kenna I) (Congress enacted the CVRA in order “to protect victims and guarantee them some 

involvement in the criminal justice process.”).

64 Fed. R. Crim. P. 32 advisory committee’s note.

65 Fed. R. Crim. P. 60.

66 Id. advisory committee’s note.
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set forth in the CVRA.67 As noted above, the term also includes institutional and other 

non-corporeal victims by reference to the Dictionary Act.68 

F. USSG §§5B1.3 AND 5D1.3 (CONDITIONS OF PROBATION AND SUPERVISED RELEASE)

Sections 5B1.3 and 5D1.3 list mandatory, discretionary, standard, and special

conditions of probation or supervised release. Several of the conditions directly or indirectly 

relate to the goals and purposes of the CVRA and therefore must be considered to vindicate 

the rights afforded by it. Mandatory conditions of supervision include compliance with 

restitution orders and payment schedules to implement them, along with a special condition, 

when warranted, of access to financial information and notification of any material change in 

economic circumstances.69 Standard conditions include risk notification to third persons and 

organizations.70

A sentencing court is authorized to limit or prohibit contact with victims if such a 

restriction is reasonably related to the nature and circumstances of the offense as part of a 

victim’s right to be reasonably protected from the accused to protect the victim’s privacy.

71

Limitations may include contact through letters, communication devices, audio or visual 

devices, visits, social networking sites, or third parties.72 These conditions may be ordered 

post-sentencing.73

G. USSG §5E1.1 (RESTITUTION) AND USSG §8B1.1 (RESTITUTION –ORGANIZATIONS)

Defendants who commit federal crimes where an identifiable victim suffered a 

physical injury or monetary loss are generally required to pay restitution.74 The 

primary goal is remedial—that is, to make victims whole for the harm caused by the 

offense.

 

67 USSG §6A1.5, comment. (n.1).

68 1 U.S.C. § 1.

69 USSG §§5B1.3(a)(2), (a)(6), (a)(7), (d)(2), (d)(3); USSG §§5D1.3(a)(6), (d)(2), (d)(3); 18 U.S.C. § 3664(k). 

70 USSG §5B1.3(c)(12); USSG §5D1.3(c)(12).

71 Guide to Judiciary Policy, Vol. 8B, Ch. 4, Conditions of Release § 440.

72 Id.

73 18 U.S.C. §§ 3563(c)(probation), 3583(e)(2), (h)(supervised release).

74 18 U.S.C. §§ 3663, 3663A.
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Restitution is addressed in the Sentencing Guidelines in §§5E1.1 and 8B1.1, 

both of which echo language in the CVRA, MVRA, and VWRA. In relevant part, section 

5E1.1 provides:

(a) In the case of an identifiable victim, the court shall--

(1) enter a restitution order for the full amount of the victim's loss, if 

such order is authorized under 18 U.S.C. § 1593, § 2248, § 2259, § 2264, 

§ 2327, § 3663, or § 3663A, or 21 U.S.C. § 853(q); or

(2) impose a term of probation or supervised release with a condition 

requiring restitution for the full amount of the victim’s loss, if the 

offense is not an offense for which restitution is authorized under 18 

U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of 

restitution under that section.75

(b) Provided, that the provisions of subsection (a) do not apply—

(1) when full restitution has been made; or

(2) in the case of a restitution order under 18 U.S.C. § 3663; a 

restitution order under 18 U.S.C. § 3663A that pertains to an offense 

against property described in 18 U.S.C. § 3663A(c)(1)(A)(ii); or a 

condition of restitution imposed pursuant to subsection (a)(2) above, to 

the extent the court finds, from facts on the record, that (A) the number 

of identifiable victims is so large as to make restitution impracticable; or 

(B) determining complex issues of fact related to the cause or amount of 

the victim's losses would complicate or prolong the sentencing process 

to a degree that the need to provide restitution to any victim is 

outweighed by the burden on the sentencing process.

Thus, sentencing courts shall order defendants to pay restitution to compensate identifiable 

victims for their losses as authorized by statute.76

Chapter Eight of the Sentencing Guidelines, which applies to organizations convicted 

of criminal offenses, also addresses victims’ rights and restitution. As noted in the 

Introductory Commentary, the Chapter Eight guidelines reflect several general principles 

 

75 The Sentencing Guidelines also provide that restitution may be ordered as a condition of probation or 

supervised release for offenses for which a restitution order is not authorized. USSG §5E1.1, comment. 

(backg’d); USSG §8B1.1, comment. (backg’d). See also 18 U.S.C. §§ 3563(b)(2) and 3583(d).

76 USSG §5E1.1(a). 
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relating to the sentencing of organizations. When the convicted defendant is an organization, 

the court must, whenever practicable, order the organization to remedy any harm caused by 

the offense. The harm caused by the offense may be remedied through a restitution order, a 

remedial order, an order of probation requiring restitution or community service, or an order 

of notice to victim.77

The approach to impose restitution on criminal organizations is substantially similar 

to the approach set forth in Chapter Five for individual defendants. Except for a provision 

allowing district courts to award “community restitution” in the absence of an identifiable 

victim for certain drug trafficking offenses, §8B1.1 contains the same restitution provisions

for organizational defendants as §5E1.1 provides for individual defendants.78 Additionally, 

courts should reduce any applicable fine imposed on the criminal organization that is

otherwise required by the Sentencing Guidelines to the extent that imposition of such fine 

would impair the organization’s ability to make restitution to its victims.79 

III. DETERMINING WHO IS A CRIME VICTIM FOR SENTENCING PURPOSES

Determining who is a victim for CVRA, MVRA, and VWPA purposes generally requires 

interrelated resolutions of who are the “victims” of the charged offense and whether the 

“harm” suffered is cognizable under the CVRA’s provisions.80 Both determinations are 

required before a victim may take advantage of the substantive and procedural rights to 

participation in the sentencing process. A court must first (1) identify the behavior 

constituting the federal offense, (2) delineate the direct and proximate effects of that 

behavior on parties, and finally (3) determine whether those effects were reasonably 

foreseeable to the defendants.81 

The rights conferred by the CVRA and the associated restitution provisions of the 

MVRA and VWPA are offense specific. Simply suffering harm from conduct of the defendant, 

even if that conduct would qualify as a separate crime, is not enough. Rather, the harm must 

 

77 USSG §§8A1.2, 8B1.1, 8B1.2. 

78 Compare USSG §§5E1.1(a)–(c), (e)–(g) with USSG §§8B1.1(a)–(f).

79 USSG §8C3.3(a).

80 The text of all three statutes is substantively similar and consequently courts have adopted the MVRA’s and 

VWPA’s harm analyses when considering victim issues under the later-passed CVRA. See, e.g., In re McNulty, 

597 F.3d 344, 350 n.6 (6th Cir. 2010) (“[W]e find our case law construing the VWPA and the MVRA persuasive, 

both for how the CVRA is to be interpreted procedurally and for when an individual qualifies as a victim of a 

conspiracy.”); In re Rendon Galvis, 564 F.3d 170, 173 (2d. Cir. 2009) (determining that a claimant was not a 

victim under either the CVRA or VWPA by using the same analysis for both statutes). 

81 In re Stewart, 552 F.3d 1285, 1288 (11th Cir. 2008); McNulty, 597 F.3d at 352 (6th Cir. 2010).
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be directly tied to the offense for which the defendant was convicted.82 Relatedly, the 

defendant’s criminal conduct will not be “but-for” cause of the harm if the harm would have 

occurred even in the absence of the offense.83

Like most legal causation inquiries, the question of whether a federal offense caused 

direct and proximate harm to a person for purposes of the CVRA requires a fact-specific 

analysis.84 This means the harm must have a close, rather than tangential, relationship to the 

conduct inherent to the offense.85 Put another way, the closer the relationship between the 

actions of the defendant and the harm sustained, the more likely the proximate cause 

standard will be satisfied.86 For example, a person experiencing harm from a downstream 

effect of an act where there were additional, intervening causes independent of the offense

will not be accorded victim status for purposes of the CVRA.87

In many cases, determining whether a putative victim’s harm is cognizable and was 

caused by the offense will be relatively straightforward. Sometimes challenging, however, is

the task of evaluating foreseeability and attenuated harm on the outer margins of the CVRA’s 

crime victim calculus, an inquiry that turns on the specific facts of a case. Assessing whether

emotional or psychological harm suffered by putative victims qualifies them for access to the 

 

82 McNulty, 597 F.3d at 352 (holding that an employee who was fired for not participating in an antitrust 

conspiracy is not a “crime victim” because these actions are not “inherent in the crime of conspiracy to violate 

antitrust laws” to which the defendant pled guilty); United States v. Battista, 575 F.3d 226, 231 (2d Cir. 2009) 

(citations omitted) (“[I]n determining whether one qualifies as a victim, a sentencing court can only consider 

the offense or offenses for which the defendant was convicted.”). Furthermore, a person may not assert 

victimhood status because a defendant could have or should have been charged with an additional or different 

crime. Permitting such an assertion would run afoul of the CVRA’s mandate that “nothing in th[e] [statute] shall 

be construed to impair the prosecutorial discretion” of the government. 18 U.S.C. § 3771(d)(6).

83 In re Fisher, 649 F.3d 401, 403 (5th Cir. 2011) (Fisher II).

84 See 18 U.S.C. § 3771 advisory committee’s note (“The definition in theory is fairly straightforward, but it may 

become more complex, especially as concerns the meaning of proximate harm. Foreseeability is at the heart of 

proximate harm; the closer the relationship between the actions of the defendant and the harm sustained, the 

more likely that proximate harm exists. Determining who is a victim in a given case will always be a factspecific analysis.”).

85 McNulty, 597 F.3d at 352.

86 Id.

87 See, e.g., In re Antrobus, 519 F.3d 1123, 1124–25 (10th Cir. 2008) (denying petition for mandamus under the 

CVRA to parents of a homicide victim seeking to be recognized as victims because defendant’s sale of a firearm 

to a juvenile was not proximate cause of homicide seven months later and not foreseeable to defendant); United 

States v. Sharp, 463 F. Supp. 2d 556, 566 (E.D. Va. 2006) (linking defendant’s marijuana sales to unrelated 

physical abuse of a domestic partner is too attenuated to confer victim status under the CVRA).
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CVRA’s rights may also present challenges.

88

Using foreseeability and attenuation tests, putative victims have been accorded CVRA 

victim status where:

• bystanders suffered property and personal injury damage from a defendant’s flight 

from an offense because the damage “directly and proximately” resulted from the 

commission of the crime;89

• community members suffered irritating rashes and ear, nose, and throat symptoms 

stemming from the defendant corporation’s Clean Air Act violations because the 

violations were the but-for cause of those harms;90 and

• an organization (the National Basketball Association) was a victim of the defendant’s 

scheme to transmit wagering information because a key feature of the conspiracy was 

the defendant’s ability to gain a wagering advantage that came from using 

confidential information belonging to it.

91

Conversely, courts have denied “victim” status where:

• the defendant pled guilty to conspiracy to import cocaine from Colombia and the 

 

88 See, e.g., United States v. C.R., 792 F. Supp. 2d 343, 388 (E.D.N.Y. 2011), vacated and remanded on other 

grounds sub nom., United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (parents “emotionally hurt” by 

exploitation of a child are “victims” for CVRA purposes); see also Fed. R. Crim. P. 32(d)(2)(B) (incorporating 

CVRA definition of crime victim and requiring the presentence report to include “information that assesses any 

financial, social, psychological, and medical impact on a victim”). Likewise, the Department of Justice’s postCVRA guidelines state:

emotional harm may be presumed in violent crime cases where the individual was actually 

present during a crime of violence, or, if not present, received information about a violent act 

attempted against him or her. In all other cases, emotional harm should not be presumed in 

the absence of physical or pecuniary harm, but rather the existence of cognizable emotional 

harm should be determined on a factual, case-by-case basis.

U.S. Dep’t of Justice, Attorney General Guidelines for Victim and Witness Assistance 9 (2011 ed., rev. May 2012) 

https://www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf.

89 Fisher II, 649 F.3d at 403–04 & n.9, (citing United States v. Washington, 434 F.3d 1265, 1268–70) (11th Cir. 

2006) (police department and condominium association afforded victim status where property damaged during 

defendant’s flight from bank robbery); United States v. Donaby, 349 F.3d 1046, 1053 (7th Cir. 2003) (“The 

district court could properly conclude that robbing the bank directly and proximately led to the high-speed 

chase and the property damage that ensued.”).

90 United States v. CITGO Petroleum Corp., 893 F. Supp. 2d 848, 852–53 (S.D. Tex. 2012).

91 Battista, 575 F.3d at 231. 
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family of a murder victim killed in Colombia sought victim status, but the evidence 

did not support a direct causal connection to the conspiracy because of intervening

paramilitary terrorist activity;92

• the defendant corporation pled guilty to tax fraud and the individual seeking victim 

status was harmed by the defendant in an attenuated and unrelated commercial 

transaction;93

• the defendant was convicted of obstructing bankruptcy proceedings and the 

purported victims suffered harm in an unrelated loan transaction with the 

defendant;94

• the defendant company and four key employees were convicted of misleading the 

Occupational Health and Safety Administration (“OSHA”), but workers’ injuries 

flowed from safety violations, not from the false information submitted to OSHA;95

• the defendant company pled guilty to submitting misleading reports to the Food and 

Drug Administration regarding implantable heart devices, but there was nothing in 

the record to show that individuals who had the devices implanted suffered physical 

harm;96 and

• the defendant and members of a city council were convicted of bribery relating to the 

approval of affordable housing development contracts, but a competitor seeking to 

recover $1.8 million of its costs in its unsuccessful effort to win the contracts could 

not show that it would have done anything different in absence of the bribery 

scheme.

97

 

92 Galvis, 564 F.3d at 175-176. But see In re de Henriquez, 15-3054, 2015 WL 10692637, at *2 (D.C. Cir. Oct. 16, 

2015) (while a satisfactory nexus between the charged offense and assertion of victim status is necessary, direct 

traceability between a specific instance of controlled substance importation and the eventual murder of 

purported victim is “a prohibitively onerous burden. The pertinent question under the [CVRA] is whether the 

murder bears the requisite connection to the overall conspiracy . . . not whether the murder bears a connection 

to a particular coca.”). 

93 United States v. Credit Suisse AG, No. 1:14CR188, 2014 WL 5026739, at *4 (E.D. Va. Sep. 29, 2014).

94 United States v. Freeman, 741 F.3d 426, 428 (4th Cir. 2014).

95 United States v. Atl. States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 545 (D.N.J. 2009).

96 United States v. Guidant LLC, 708 F. Supp. 2d 903, 913-14 (D. Minn. 2010).

97 In re Fisher, 640 F.3d 645, 648–49 (5th Cir. 2011) (Fisher I); Fisher II, 649 F.3d at 404.
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Because the CVRA does nothing more than confirm that restitution must be guided by 

the existing statutes under the MVRA and VWPA, a sentencing court in a difficult case may 

resort to the fail-safe provisions in each that permit it to bypass restitution proceedings if the 

number of victims or complex issues of fact make a restitution award impractical.98

Moreover, “[u]nder the MVRA, the availability of a civil suit can no longer be considered by 

the district court in deciding the amount of restitution.”99 However, the “MVRA also 

precludes duplicative awards by reducing restitution by any amount later recovered as 

compensatory damages for the same loss by the victim in any federal or state civil 

proceeding.”100

The CVRA specifically authorizes others to assume a victim’s procedural and 

substantive rights in conjunction with, or on behalf of, the victim. Persons authorized include 

the victim’s “lawful representative” (including legal counsel),

101 the attorney for the 

government, and any other person as authorized by 18 U.S.C. §§ 3771(d) and (e)(2). It 

provides for the assumption of CVRA rights by a family member, guardian, or other person 

appointed by the court on behalf of victims who are minors, incompetent, incapacitated, or 

deceased.102 An incapacitated victim is any victim who is unable to interact during the 

proceedings because of a cognitive impairment or other physical limitation, or because of 

physical restraint or disappearance.103 A separate statute provides for the appointment of a 

Guardian Ad Litem for children who have witnessed or suffered a crime of exploitation or 

abuse to protect the best interests of the children and assert their CVRA rights as 

 

98 18 U.S.C. § 3663A(c)(3) (restitution may not be ordered “if the court finds, from facts on the record, that (A) 

the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex 

issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing 

process to a degree that the need to provide restitution to any victim is outweighed by the burden on the 

sentencing process”); 18 U.S.C. § 3663(a)(1)(B)(ii) (a sentencing court may decline to make a restitution order if 

“the court determines that the complication and prolongation of the sentencing process resulting from the 

fashioning of an order of restitution under this section outweighs the need to provide restitution to any 

victims”). See also United States v. Martinez, 690 F.3d 1083, 1089 (8th Cir. 2012) (affirming the district court’s 

conclusion that the loss the victim bank sustained would have occurred regardless of the defendant’s fraud, 

making the numerous witnesses and hearings required for the determination of extent of loss unduly 

burdensome).

99 United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006). 

100 Id. at 1168 (citing 18 U.S.C. § 3664(j)(2).

101 Fed. R. Crim. P. 60 advisory committee’s notes (“[t]he Committee Note makes it clear that a victim or the 

lawful representative may generally participate through counsel . . .”).

102 18 U.S.C. § 3771(e)(2)(B).

103 Attorney General Guidelines for Victim and Witness Assistance 7 (2011 ed., rev. May 2012).
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appropriate.104

Like the substantive right to full and timely restitution, the CVRA’s procedural 

remedies—in particular, its mandamus appeal provision—are invoked by victims alleging 

error in either the government’s or the sentencing court’s restitution decisions. In re W.R. 

Huff Asset Management Co., LLC,

105 is illustrative of the interplay of the substantive right to 

restitution and the CVRA’s procedural remedies. There, the Second Circuit considered 

restitution in a large, complex financial fraud case featuring numerous victims. In a victim’s

challenge against the government and the court, it held that the district court was acting

within its discretion under the CVRA when it approved a settlement agreement that 

established a $715 million fund to compensate victims of securities and bank fraud 

perpetrated by the defendants, even though the fund would not be sufficient to ensure that 

the victims were afforded full restitution as provided under the MVRA. The victims, 

potentially numbering in the tens of thousands, lost money when they relied on false and 

misleading statements to purchase high-yield debt securities issued by a corporation 

founded by one of the defendants. The government entered a settlement agreement with two 

of the defendants and family members of the defendants who either were not convicted or 

were not charged. Under the agreement, the defendants and the family members agreed to 

forfeiture of designated assets, and, in exchange, the government agreed not to request an 

order of restitution, a criminal fine, additional forfeiture, or other economic sanctions. The 

government also entered a non-prosecution agreement with the corporation, which specified 

that the corporation would pay the government $715 million for a victim compensation fund 

that would distribute funds to eligible victims as determined by the Attorney General and the 

Securities and Exchange Commission, subject to court approval.106

The district court invoked the CVRA’s multiple crime victim provision, 18 U.S.C. 

§ 3771(d)(2), and approved the proposed settlement. Resorting to the CVRA’s mandamus 

remedy, the victims appealed to the Second Circuit, contending that relief was warranted 

because the settlement violated their CVRA rights to be treated fairly, to confer with 

government counsel, and to be provided with full and timely restitution.107

On mandamus review, the Second Circuit held that the agreement did not violate the 

victims’ right to restitution under 18 U.S.C. § 3771(a)(6). The addition of subsection (d)(2) of 

 

104 18 U.S.C. § 3509(h)(2006) (entitled “Child Victim Protection Law”). The CVRA explicitly prohibits the 

defendant from being named as such a guardian or representative or otherwise deriving rights from the CVRA. 

18 U.S.C. § 3771(e)(2)(B). 

105 409 F.3d 555 (2d Cir. 2005).

106 Id. at 563–64.

107 Id. at 559–61.
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the CVRA made clear that Congress recognized that there would be situations when it would 

be impossible for multiple crime victims of the same set of crimes to be repaid every dollar 

they had lost. The court pointed out that under § 3663A(c)(3) of the MVRA, victims of a 

property offense by fraud or deceit are not necessarily entitled to mandatory restitution if 

the district court determines that the number of identifiable victims is so large as to make 

restitution impracticable, or that determining complex issues of fact related to the cause 

would complicate or prolong the sentencing process such that the need to provide restitution 

is outweighed by the burden on the sentencing process. The government’s settlement 

agreement recognized “that victims would have difficulty in effecting any recoveries . . . 

because of difficulties in proof of culpability and because of security interests affecting the [ ] 

assets” of the defendants and their family.108 Accordingly, the Second Circuit held that the 

district court acted reasonably in entering the settlement agreement and approving it.109

IV. NOTICE OF, AND PARTICIPATION IN, THE SENTENCING PROCESS

An essential component of the CVRA is its provision affording crime victims the “right 

to reasonable, accurate, and timely notice of any public court proceeding, or any parole 

proceeding, involving the crime or of any release or escape of the accused.”110 This means 

that a conviction by guilty plea or jury verdict triggers the government’s mandatory 

obligations to notify victims of the sentencing hearing and the procedures outlined in the 

CVRA, Rule 32, and Rule 60. The government should, for example, notify victims that a 

probation officer will be preparing a presentence investigation report.111 The prosecution 

team (or agents on its behalf) should explain that the presentence investigation report 

includes a section assessing the financial, social, psychological, and medical impact of the 

crime on any individual against whom the offense was committed, including restitution 

information, as well as how to communicate directly with the probation officer concerning 

the submission of a victim impact statement.112 The government must continue to “use its 

best efforts to give the victim reasonable, accurate, and timely notice” of sentencing 

proceedings.113

 

108 Id. at 564.

109 Id. at 563.

110 18 U.S.C. § 3771(a)(2).

111 Attorney General Guidelines for Victim and Witness Assistance 44 (2011 ed., rev. May 2012).

112 18 U.S.C. § 3771(c)(1) (“Officers and employees of the Department of Justice and other departments and 

agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their 

best efforts to see that crime victims are notified of, and accorded, the rights described in [the CVRA].”).

113 Fed. R. Crim. P. 60(a)(1). 
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Although the rights accorded under the CVRA are substantial, the statute stops short 

of granting victims any formal party status. Instead, the CVRA’s purpose is limited to 

providing victims a path to vindicating its enumerated rights.114 For example, although the

statute confers the “reasonable right to confer with the attorney for the government in the 

case,”115 courts have held that the CVRA’s rights to notice and conferral have no impact on 

the government’s broad discretion in prosecuting cases,

116 and consequently does not give

the victim veto power over discretionary decisions in negotiating sentencing 

recommendations, restitution agreements, or forfeiture actions.117 However, “the reasonable 

right to confer in the case” extends to pre-charge stages of criminal investigations, including 

the government’s decision to dispose of criminal charges.118 

As the sentencing hearing in a particular case approaches, the government should, in 

accord with any local rules of procedure or practice, give advance notice to the court of any 

known victims who seek to be heard at the hearing so that the court is able to exercise its 

independent obligation to “reasonably hear” any victims in an efficient manner.119 Relatedly, 

advance notice of victim participation permits a sentencing court to ensure it complies with 

the victims’ CVRA right to a sentencing proceeding “free from unreasonable delay.”120 

 

114 United States v. Rubin, 558 F. Supp. 2d 411, 417 (E.D.N.Y. 2008).

115 18 U.S.C. § 3771(a)(5).

116 In re Dean, 527 F.3d 391, 395 (5th Cir. 2008).

117 Rubin, 558 F. Supp. 2d at 418 (the CVRA “gives victims a voice, not a veto” over prosecutorial decisionmaking); In re Stake Ctr. Locating, Inc., 731 F.3d 949, 951 (9th Cir. 2013) (subsection 3771(d)(6) does not 

permit a victim to force the government to file a criminal forfeiture action in connection with the disposition to 

recover assets that are connected to the offense); United States v. Thetford, 935 F. Supp. 2d 1280, 1282 (N.D. 

Ala. 2013) (“These [CVRA] rights, however, do not extend to giving crime victims veto power over the 

prosecutor’s discretion.”); Does v. United States, 817 F. Supp. 2d 1337, 1343 (S.D. Fla. 2011) (“[T]o the extent 

that the victims’ pre-charge CVRA rights impinge upon prosecutorial discretion, under the plain language of the 

statute those rights must yield.”).

118 Doe v. United States, 950 F. Supp. 2d 1262, 1268 (S.D. Fla. 2013) (explaining that a “non-prosecution” 

agreement may be set aside if entered in violation of the government's conferral obligations, but “[w]hat the 

government chooses to do after a conferral with the victims is a matter outside the reach of the CVRA”); United 

States v. Heaton, 458 F. Supp. 2d 1271, 1272-73 (D. Utah 2006) (government motion to dismiss charge of using 

facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until 

government consulted with victim); Attorney General Guidelines for Victim and Witness Assistance 40 (2011 ed., 

rev. May 2012). (“Federal prosecutors should be available to confer with victims about major case decisions, 

such as dismissals, release of the accused pending judicial proceedings (when such release is for noninvestigative purposes), plea negotiations, and pretrial diversion.”).

119 Attorney General Guidelines for Victim and Witness Assistance 40 (2011 ed., rev. May 2012).

120 18 U.S.C. § 3771(a)(7).
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Notably, however, nothing in the CVRA, Rule 32, or Rule 60 prohibits a victim who 

comes forward at the last minute, or even decides as the sentencing hearing is taking place, to 

make a statement, regardless of whether the victim has provided advance notice to the 

government or the court.121 But a victim statement that injects last-minute factual issues 

may implicate the constitutional due process protections of Rule 32 and Rule 26.2, which 

together require that the defendant be afforded the opportunity to investigate, object, and 

present contrary evidence, and the right to have the court resolve any disputed matter.122

The CVRA specifically recognizes the challenge posed by the mandatory notification 

provisions in large fraud and other wide-ranging cases where the victim pool is large or

unknown. The CVRA provides:

[i]n a case where the court finds that the number of crime victims makes it 

impracticable to accord all of the crime victims the rights described in [the 

statute], the court shall fashion a reasonable procedure to give effect to this 

chapter that does not unduly complicate or prolong the proceedings.123

Courts have applied the “fashion a reasonable procedure” provision to include

alternative notification methods such as publication of notices through media outlets, on 

public websites dedicated to victim notification services, or by proxy notification to an 

individual or organization (such as community organizations, corporate entities, or counsel 

for a class of victims) that are able to disseminate notice to other victims.124 Courts now 

routinely grant the government’s request that it be permitted to use various Department of 

Justice webpages and other victim notification services to satisfy its obligations in large, 

multi-victim cases.

125

 

121 United States v. Eberhard, 525 F.3d 175, 178 (2d Cir. 2008) (lack of prior notice of victims’ identity and 

substance of statements not error where defendant was afforded an opportunity to respond after hearing from 

victims).

122 See Fed. R. Crim. P. 26.2(a)–(d), (f). Fed. R. Crim. P. 32(d)(2)(B), (D), (e)(2), (f)–(i); United States v. Rakes, 

510 F.3d 1280, 1285–86 & n.3 (10th Cir. 2007).

123 18 U.S.C. § 3771(d)(2); see also United States v. Olivares, No. 3:13-CR-355(MOC), 2014 WL 2531559, at *3 

(W.D.N.C. June 5, 2014) (recommending procedures for victim notification in light of the impractical nature of 

individual notice for an internet-based Ponzi scheme that generated more than 700,000 victims in over 150 

countries). 

124 18 U.S.C. § 3771(d)(2); see also United States v. BP Prod. N. Am, Inc., 610 F. Supp. 2d 655, 671 (S.D. Tex. 

2009); https://www.justice.gov/largecases; https://www.justice.gov/atr/victims-rights. 

125 See Olivares, 2014 WL 2531559 at *3 (collecting large scale, multiple victim fraud cases where alternative 

notices posted on the Department of Justice’s and court-appointed trustee’s websites permitted). 
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V. IMPLEMENTING THE CVRA AT THE SENTENCING HEARING

Although neither the CVRA nor the criminal rules dictate the procedure a sentencing 

court should use to implement the “reasonably heard” mandate, executing the directive at the 

sentencing hearing is conceptually straightforward. Rule 32 dictates that before imposing 

sentence the district court “must address any victim of the crime who is present at 

sentencing and must permit the victim to be reasonably heard.”126 Rule 32’s drafters evinced 

a strong preference for in-court oral allocution in their suggestion that “any victim who is

present be allowed a reasonable opportunity to speak directly to the judge”127 at the 

sentencing proceeding.128 All victim statements to the sentencing court should be concluded 

before a defendant exercises the right to allocution in order to permit the opportunity to 

respond to the statement if desired.129

Victims need not be sworn in before allocuting at sentencing.130 Because victim 

impact statements, whether oral or written, are made in the context of a sentencing hearing, 

neither the Federal Rules of Evidence nor the defendant’s Sixth Amendment confrontation 

clause protections apply to statements or allocution.131 For this reason, a sentencing court 

has discretion to curtail or completely prohibit direct questioning of a victim by the 

defense.132 On the other hand, the defense must be permitted to bring to the court’s attention 

 

126 Fed. R. Crim. P. 32(i)(4)(B).

127 Id. advisory committee’s notes. 

128 The CVRA’s right to be “reasonably heard” orally applies only at sentencing hearings. Written or other 

statements may suffice for purposes of detention and all other proceedings. United States v. Marcello, 370 F. 

Supp. 2d 745, 748–49 (N.D. Ill. 2005).

129 United States v. Millan-Issac, 749 F.3d 57, 70–71 (1st Cir. 2014) (remanding because the defendant did not 

have the opportunity to respond to victim information proffered for the first time at sentencing); Atl. States Cast 

Iron Pipe Co., 612 F. Supp. 2d at 497 (“When participation of a statutory crime victim or other affected person 

becomes an issue in the sentencing process, the court facing those issues must not lose sight of the rights of the 

defendant.”); Eberhard, 525 F.3d at 178 (lack of prior notice of identity and substance of statements not error 

where defendant was afforded an opportunity to respond after hearing from victims).

130 United States v. Grigg, 434 F. App'x 530, 533 (6th Cir. 2011) (citing cases) (“Every court that has examined 

this issue has held that there is no requirement to swear in CVRA victims.”). 

131 Fed. R. Evid. 1101(d)(3); United States v. Beydoun, 469 F.3d 102, 109 (5th Cir. 2006) (“Crawford [v. 

Washington, 541 U.S. 36, 61 (2004)] does not extend a defendant’s rights under the Confrontation Clause to 

sentencing proceedings.”); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (“Crawford does 

not extend to non-capital sentencing.”); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005) (“[W]itnesses 

providing information to the court after guilt is established are not accusers within the meaning of the 

confrontation clause.”); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (“Nothing in Crawford

requires us to alter our conclusion that there is no Sixth Amendment Confrontation Clause right at sentencing.”).

132 United States v. Castillo, 476 F. App’x 774, 775 (5th Cir. 2012); see also United States v. Barouch, No. 4:10-
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inaccuracies contained in particular victim statements or argue the relevance of the 

statements.133

A victim’s right to be “reasonably heard” under the CVRA does not confer a general 

right to obtain a defendant’s presentence report or financial information.134

VI. APPELLATE REVIEW

The CVRA adds the remedy of mandamus to the government’s ordinary appellate 

rights. It also affords the victim (or the victim’s lawful representative) separate independent 

status to seek mandamus to enforce the enumerated rights and features an expedited 

schedule for resolution.135 The relevant text of the statute provides:

Motion for relief and writ of mandamus. – The rights described in subsection 

(a) shall be asserted in the district court in which a defendant is being prosecuted 

for the crime or, if no prosecution is underway, in the district court in the district in 

which the crime occurred. The district court shall take up and decide any motion 

asserting a victim’s right forthwith. If the district court denies the relief sought, the 

movant may petition the court of appeals for a writ of mandamus. The court of 

appeals may issue the writ on the order of a single judge pursuant to circuit rule or 

the Federal Rules of Appellate Procedure. The court of appeals shall take up and 

decide such application forthwith within 72 hours after the petition has been filed, 

unless the litigants, with the approval of the court, have stipulated to a different 

time period for consideration. In deciding such application, the court of appeals 

shall apply ordinary standards of appellate review. In no event shall proceedings be 

stayed or subject to a continuance of more than five days for purposes of enforcing 

this chapter. If the court of appeals denies the relief sought, the reasons for the 

denial shall be clearly stated on the record in a written opinion.136

 

CR-099-A-1, 2013 WL 2151226, at *9 (N.D. Tex. May 17, 2013) (“The victim thus has the right to make a 

statement at sentencing about the effect the defendant’s criminal conduct had on her without being crossexamined or placed under oath, just as a defendant has the right to make whatever statement he wants in 

mitigation.”). 

133 Barouch, 2013 WL 2151226, at *9.

134 In re Siler, 571 F.3d 604, 609 (6th Cir. 2009); see also United States v. Coxton, 598 F. Supp. 2d 737, 740 

(W.D.N.C. 2009) (citing cases) (noting that every court to address the issue has held that nothing in the CVRA or 

its legislative history requires the disclosure of the PSR to victims). Cf. Moussaoui, 483 F.3d at 234–35 (nothing 

in the CVRA grants victims a general right of discovery in pursuit of a civil claim against perpetrators).

135 18 U.S.C. §§ 3771(d).

136 Id.
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The CVRA’s bestowal to victims of personal standing to appeal, however, is limited to 

the mandamus procedure outlined in the statute. In contrast to the government, a putative 

victim appealing in his personal capacity has no standing to directly appeal from a CVRA 

ruling, including rulings related to restitution.

137 However, although not a party, a victim can 

intervene on appeal to defend restitution awarded by the district court.138 

The scope of mandamus review at the sentencing stage of a criminal case depends on 

whether the motion to accord victim status is appealed before or after the sentencing itself. 

If the writ is sought before the hearing, appellate review consists of an examination of the 

district court’s decision not to accord victim status.139 The relief, if granted, is a direction to 

the district court to accord victim status or a specific CVRA right going forward, or a remand 

for the district court to reconsider its denial.140

Regarding challenges to sentences, any remedy will necessarily implicate the measure 

of reopening the sentencing hearing or a guilty plea. In such instances, the CVRA adds 

specified conditions to obtain relief. It provides:

(5) Limitation on relief.--In no case shall a failure to afford a right under this chapter 

provide grounds for a new trial. A victim may make a motion to re-open a plea or 

sentence only if—

(A) the victim has asserted the right to be heard before or during the proceeding at 

issue and such right was denied;

(B) the victim petitions the court of appeals for a writ of mandamus within 14 days; 

 137 United States v. Kovall, 857 F.3d 1060, 1065 (9th Cir. 2017) (while victims have standing to challenge a 

district court’s restitution award, section 3771(d)(3)’s mandamus procedure is the sole vehicle by which it may 

do so); United States v. Stoerr, 695 F.3d 271, 277 (3d Cir. 2012) (“All Courts of Appeals to have addressed this 

issue have concluded that nonparties cannot directly appeal a restitution order entered against a criminal 

defendant.”). Non-party victims have been permitted to appeal issues that do not alter a defendant’s sentence. 

See, e.g., United States v. Perry, 360 F.3d 519, 523–24 (6th Cir. 2004) (allowing a non-party victim to appeal an 

order vacating a lien securing her restitution award).

138 United States v. Laraneta, 700 F.3d 983, 985-86 (7th Cir. 2012) (permitting crime victims who were 

awarded restitution by the district court to intervene when defendant appealed).

139 See, e.g., Galvis, 564 F.3d at 175–76 (affirming district court decision denying victim status in ongoing 

sentencing hearings).

140 See, e.g., Kenna I, 435 F.3d at 1017 (remanding to district court with instruction to accord aggrieved victim 

an opportunity to speak); In re de Henriquez, 2015 WL 10692637, at *2 (remanding with instructions to 

reconsider recognizing petitioners as qualifying victims because district court imposed too stringent a 

proximate cause requirement when denying victim status).
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and

(C) in the case of a plea, the accused has not pled to the highest offense charged.141

These limitations, however, do not affect the victim’s rights to restitution.142

Victims have successfully obtained relief after sentencing was concluded and 

judgment was entered under the CVRA.143 However, courts have indicated concern with the 

statutory language regarding re-opening criminal sentences.

144

In the wake of the CVRA’s 2006 passage, circuit courts split over whether to apply an

abuse of discretion standard of review to victim claims or the more traditional strict review 

that until then had applied to considering mandamus appeals.

145 In 2015, Congress adopted 

the less stringent approach by amending subsection 3771(d)(3) to clarify that “[i]n deciding 

such application [for mandamus], the court of appeals shall apply ordinary standards of 

appellate review.”146ENC

 

141 18 U.S.C. § 3771(d)(5). 

142 Id.

143 See, e.g., Kenna I, 435 F.3d at 1017 (remanding to the district court where the sentencing judge erroneously 

interpreted the newly-passed CVRA’s “right to be reasonably heard provision” and refused to allow petitioner to 

allocute at defendant’s sentencing).

144 See, e.g., United States v. Hunter, 548 F.3d 1308, 1316 (“[i]f individuals were allowed to re-open criminal 

sentences after all issues have been resolved . . . then the government’s prosecutorial discretion would be 

limited. A successful appeal by [the victims] would require a new sentencing hearing that could lead to a new 

sentence. The government determined what it believed to be the proper sentence for [the defendant], and 

Section 3771(d)(6) shows that Congress did not intend to allow non-party appeals that could disturb that 

judgment.”).

145 Compare W.R. Huff, 409 F.3d at 562–63 (applying abuse of discretion and stating that it is clear from the 

CVRA’s language that the petitioner need not overcome the hurdles typically faced in mandamus review); In re

Walsh, 229 F. App’x 58, 60 (3d Cir. 2007) (stating in dicta that “mandamus relief is available under a different, 

and less demanding, standard under 18 U.S.C. § 3771”); Kenna I, 435 F.3d at 1017 (applying abuse of discretion 

standard); Stewart, 552 F.3d at 1288–89 (granting petition without asking whether victim had a clear and 

indisputable right to relief); with United States v. Monzel, 641 F.3d 528, 533 (D.C. Cir. 2011) (noting circuit split 

and holding “the best reading of the statute favors applying the traditional mandamus standard”); Dean, 527 

F.3d at 395 (applying “no other adequate means,” “clear and indisputable right,” and appellate court satisfaction 

that mandamus “appropriate under the circumstances” requirements); In re Acker, 596 F.3d 370, 372 (6th Cir. 

2010) (same); Antrobus, 519 F.3d at 1124–25 (same).

146 Justice for Victims of Trafficking Act of 2015, supra, n.2.
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VII. POST-SENTENCING PROCEEDINGS

A. POST-SENTENCING JUDICIAL PROCEEDINGS

The CVRA extends to a victim’s right to be reasonably heard at post-sentencing 

proceedings. The Supreme Court has held that “postrevocation penalties relate to the 

original offense,” so “postrevocation sanctions [are] part of the penalty for the initial 

offense.”147 Post-sentencing proceedings can include modifications of probation and 

supervised release,148 remands after appeal, or retroactive sentencing modifications,

149 and 

habeas proceedings.150

Similarly, if the violation of probation or supervised release involves a new crime, the

revocation proceeding may well be considered to “involve” the new crime of the accused and,

thus, confer CVRA rights to the victims of the substantive offense that is the basis of the 

violation. At a minimum, the government has an obligation to notify the victims of the 

defendant’s initial offense and of the court’s obligation to reasonably hear any victims who 

appear at such a revocation hearing.151 No reported case, however, has directly confronted 

the issue of a CVRA-recognized victim participation in revocation hearings in a written 

decision.

152 

 

147 Johnson v. United States, 495 U.S. 694, 700–01 (2000). Only revocation of supervised release was at issue in 

Johnson, but the procedural and substantive similarities of probation and supervised release revocation 

proceedings suggest that the Johnson court’s reasoning applies equally to both categories.

148 18 U.S.C. § 3563(c); 18 U.S.C. § 3583(e).

149 USSG §1B1.10.

150 See 18 U.S.C. 3771(b)(2); Pann v. Warren, No. 5:08-CV-13806, 2010 WL 2836879, at *4 (E.D. Mich. July 19, 

2010) (explaining that the CVRA provides crime victims rights in a federal habeas corpus proceeding arising out 

of a State conviction).

151 Attorney General Guidelines for Victim and Witness Assistance 8 (2011 ed., rev. May 2012) (“If the defendant 

is convicted, CVRA rights continue until criminal proceedings have ended. For example, CVRA rights continue 

through any period of incarceration and any term of supervised release, probation, community correction, 

alternatives to incarceration, or parole.”).

152 The lack of decisional authority may be explained by the fact that victims may be hard to locate in order to 

be able to assert the full panoply of rights granted by the CVRA at a post-conviction stage of the proceedings, 

which may take place years or even decades after the initial sentencing. A likely additional reason is the need 

for flexibility in the CVRA’s application by the sentencing court and litigants in the fast-moving context of 

supervised release and probation revocation hearings. Cf. Rubin, 558 F. Supp. 2d at 423 (noting that lack of 

notice to victims of pretrial release modification hearings was not unreasonable when defendant’s requests to 

leave the country for funeral of family members overseas was made under exigent circumstances because the 

court’s decisions “would not have been altered by movants’ (or other victims’) input in a manner that rendered 

delay for their notice any more reasonable”). Additionally, the district court’s wide discretion to hear 
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Where an offender on supervision engages in unwanted contact with a victim, the 

CVRA’s enumerated “right to be reasonably protected from the accused,” is vindicated 

through the authorization, after hearing if necessary, of a special condition limiting or 

prohibiting contact with victims of the original offense.153

B. PAROLE HEARINGS

The CVRA explicitly provides that a victim is entitled to “reasonable, accurate, and 

timely notice of . . . any parole proceeding, involving the crime or of any release or escape of 

the accused,” and to “be reasonably heard at . . . any parole proceeding.”154 Consistent with 

the CVRA, the U.S. Parole Commission provides public notice of the relatively infrequent

dates of parole and parole revocation hearings.155 The Bureau of Prisons also provides a 

requesting victim with information on the inmate’s release, including by potential parole, 

from any Bureau of Prisons institution.156 The Parole Commission’s Manual, like the CVRA, 

specifies that in deciding whether to grant parole, it is required to consider (among other 

things) a “statement, which may be presented orally or otherwise, by any victim of the 

offense for which the prisoner is imprisoned about the financial, social, psychological, and 

emotional harm done to, or loss suffered by, such victim.”157

 

information in the probation and supervised release revocation context may render any dispute regarding 

CVRA status moot. See United States v. Rizzolo, 472 F. App’x 638, 639–40 (9th Cir. 2012) (no error in the 

district court’s decision to hear statements from interested persons at the defendant’s probation violation 

hearing even though the persons making statements were not statutorily-recognized victims under the CVRA); 

United States v. Campbell, 309 F. App’x 490, 491 (2d Cir. 2009) (“As Campbell’s supervised release was revoked 

pursuant to state harassment charges arising out of domestic disputes with his wife, the district court was 

clearly not in error to allow his wife to testify to Campbell's history of abusive acts.”).

153 Guide to Judiciary Policy, Vol 8D, Ch. 5, Sentencing Recommendation and Justification § 530.20.30(b)(3)(A) & 

(B).

154 18 U.S.C. §§ 3771(a)(2) & (4); Garraway v. Tracey, No. CV-15-2163-PHX-SPL-DMF, 2016 WL 9234112, at *6-

8 (D. Ariz. Oct. 11, 2016) (section 3771 expressly permits family members, including a cousin, of a victim to 

appear and submit statements at petitioner’s parole hearing regarding 1986 murder conviction). 

155 Federal parole was abolished with the implementation of the Sentencing Reform Act, which also featured 

the advent of the Sentencing Guidelines and statutory supervised release provisions. Consequently, parole 

procedures are only applicable to offenders who committed their offense prior to November 1, 1987. According 

to a 2015 Government Accountability Office report, there were just 1,334 offenders on parole and another 1,067 

eligible for parole in 2014. See United States General Accounting Office, U.S. Parole Commission: Number of 

Offenders Under Its Jurisdiction Has Declined 18, tbl. 2 (2015), https://www.gao.gov/assets/680/670509.pdf. 

The Parole Commission thus conducts only a limited number of hearings in any given year and the number of 

hearings will continue to decline before ultimately ceasing completely when there are no longer offenders 

under its jurisdiction. Id. at 4. 

156 28 CFR §§ 2.37(c)(7), 551.151. 

157 28 C.F.R. § 2.19(a)(6); U.S. Parole Commission, Rule and Procedures Manual, § 2.13-11 (2010).