United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2011 Decided April 19, 2011 

No. 11-3008 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

MICHAEL M. MONZEL, 

APPELLEE

AMY, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:09-cr-00243) 

No. 11-3009 

IN RE: AMY, THE VICTIM IN THE MISTY CHILD PORNOGRAPHY 

SERIES, 

PETITIONER

On Petition for Writ of Mandamus 
2 

Paul Cassell argued the cause for and filed the petition 

for writ of mandamus for appellant/petitioner Amy. With him 

on the petition was James R. Marsh. 

Nicholas P. Coleman argued the cause for and filed the 

response for appellee/respondent United States of America. 

Roy W. McLeese III, Assistant U.S. Attorney, entered an 

appearance. 

David W. Bos, Assistant Federal Public Defender, argued 

the cause and filed the response for appellee/respondent 

Michael M. Monzel. With him on the response were A.J. 

Kramer, Federal Public Defender, and Neil H. Jaffee, 

Assistant Federal Public Defender. 

Before: GINSBURG, ROGERS, and GRIFFITH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

 GRIFFITH, Circuit Judge: In December 2009, respondent 

Michael Monzel pled guilty to possession of child 

pornography. One of the images he possessed depicted the 

petitioner, who proceeds in this matter under the pseudonym 

“Amy.” Amy subsequently sought $3,263,758 in restitution 

from Monzel. The district court, however, awarded what it 

called “nominal” restitution of $5000, an amount it 

acknowledged was less than the harm Monzel caused her. 

Amy challenges the award in a petition for mandamus and by 

direct appeal. We grant her petition in part because the district 

court admitted the restitution award was smaller than the 

amount of harm she suffered as a result of Monzel’s offense, 

and we dismiss her direct appeal because it is not authorized 

by statute. 
3 

I 

A 

This case involves the interplay of three statutes. 18 

U.S.C. § 3771, also known as the Crime Victims’ Rights Act 

(CVRA), grants crime victims “[t]he right to full and timely 

restitution as provided in law.” Id. § 3771(a)(6). If a district 

court denies the relief sought, the Act provides that the victim 

or the government “may petition the court of appeals for a 

writ of mandamus.” Id. § 3771(d)(3). The court of appeals is 

then required to “take up and decide such application 

forthwith within 72 hours after the petition has been filed.” Id. 

18 U.S.C. § 2259 governs restitution awards for victims 

of child sexual exploitation and directs courts to award “the 

full amount of the victim’s losses,” id. § 2259(b)(1), defined 

as costs incurred for medical services; physical and 

occupational therapy or rehabilitation; necessary 

transportation, temporary housing, and child care expenses; 

lost income; attorneys’ fees and other litigation costs; and 

“any other losses suffered by the victim as a proximate result 

of the offense,” id. § 2259(b)(3). Neither the defendant’s 

economic circumstances nor the victim’s entitlement to 

compensation from another source may diminish the amount 

of the victim’s award. See id. § 2259(b)(4)(B). 

Finally, 18 U.S.C. § 3664 sets forth rules for issuing and 

enforcing restitution awards. As relevant here, the statute 

provides that “[a]ny dispute as to the proper amount or type 

of restitution shall be resolved by the court by the 

preponderance of the evidence.” Id. § 3664(e). “The burden 

of demonstrating the amount of the loss sustained by a victim 

as a result of the offense” rests with the government. Id.
4 

B 

On December 10, 2009, respondent Michael Monzel pled 

guilty to one count of distributing child pornography in 

violation of 18 U.S.C. § 2252(a)(2) and one count of 

possessing child pornography in violation of 18 U.S.C. 

§ 2252(a)(4)(B). The National Center for Missing and 

Exploited Children identified petitioner Amy as the minor 

depicted in one of the pornographic images Monzel possessed 

but did not distribute. Amy filed a victim impact statement 

seeking $3,263,758 in restitution from Monzel, an amount she 

claims reflects her total losses from the creation and 

distribution of pornographic images of her as a child—

including images of her being sexually abused. Monzel 

argued that the district court should award Amy no more than 

$100 because the government had failed to show what portion 

of Amy’s losses he had caused. 

In an order entered on January 11, 2011, the district court 

awarded Amy $5000 in what it called “nominal” restitution. 

Even though the court had “no doubt” that this amount was 

“less than the actual harm” Monzel caused Amy, Restitution 

Order at 5, it declined to award more because neither the 

government nor Amy had submitted evidence “as to what 

losses were caused by Defendant’s possession of [the 

victim’s] images,” id. at 3 (alteration in original) (quoting 

United States v. Church, 701 F. Supp. 2d 814, 832 (W.D. Va. 

2010)) (internal quotation marks omitted). The court also 

declined to hold Monzel jointly and severally liable for the 

entirety of the harm Amy has suffered as a result of the 

distribution and possession of her image by others, given “the 

substantial logistical difficulties in tracking awards made and 

money actually recovered” from such persons. Id. at 5. 
5 

Amy now petitions for a writ of mandamus under 18 

U.S.C. § 3771(d)(3) directing the district court to order 

Monzel to pay her $3,263,758 in restitution. She has also 

challenged the award in a direct appeal and moves to 

consolidate her mandamus petition with the appeal. The 

government moves to dismiss Amy’s appeal on the ground 

that crime victims may not directly appeal restitution orders. 

We have jurisdiction over her mandamus petition under 

§ 3771(d)(3) but dismiss her direct appeal because it is not 

authorized by statute. 

II 

 As a preliminary matter, Amy has filed a motion to waive 

the 72-hour statutory deadline for deciding her mandamus 

petition. Monzel and the government both oppose her motion 

on the ground that the time limit cannot be waived at the sole 

discretion of the crime victim. We think Monzel and the 

government are right: Amy may not unilaterally waive the 

statutory deadline, but the passing of that deadline does not 

defeat our jurisdiction to decide her petition. 

Amy asserts that the CVRA gives a crime victim a 

personal, waivable right to a decision on a petition for 

mandamus within 72 hours, but nothing in the language of the 

statute supports that view. No such right is mentioned among 

the enumerated protections afforded to crime victims, see 18 

U.S.C. § 3771(a),1 and the Act directs that the court of 

 

1

 The CVRA states that “[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. 
6 

appeals “shall” decide the petition within the time limit. As 

we have previously recognized, “‘[s]hall’ is a term of legal 

significance, in that it is mandatory or imperative, not merely 

precatory.”2 Exportal Ltda. v. United States, 902 F.2d 45, 50 

(D.C. Cir. 1990) (internal quotation marks omitted). Although 

the statute leaves us no room to set aside the 72-hour 

deadline, the multiple issues of first impression this case 

raises, involving several statutes and conflicting views among 

the circuits, called for oral argument and a published opinion 

that is being issued past the deadline. 

 

(3) The right not to be excluded from any such public court 

proceeding, unless the court, after receiving clear and 

convincing evidence, determines that testimony by the 

victim would be materially altered if the victim heard other 

testimony at that proceeding. 

(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. 

(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. 

18 U.S.C. § 3771(a). 

2

 Amy directs our attention to an unpublished order from the 

Eleventh Circuit that granted a victim’s motion to waive the 72-

hour deadline. See Order, In re Stewart, No. 10-12344 (May 21, 

2010). Even were we inclined to give an unpublished decision from 

another circuit weight that we do not give our own, see D.C. Cir. 

R. 36(e)(2) (“[A] panel’s decision to issue an unpublished 

disposition means that the panel sees no precedential value in that 

disposition.”), the Eleventh Circuit’s order would not qualify for 

such consideration because it lacked any analysis of the merits of 

the motion. 
7 

Missing the deadline, however, does not deprive us of 

jurisdiction. In Dolan v. United States, 130 S. Ct. 2533 

(2010), the Supreme Court held that missing § 3664’s 90-day 

deadline for determining a victim’s losses does not deprive a 

sentencing court of power to order restitution, id. at 2539; see 

18 U.S.C. § 3664(d)(5) (“If the victim’s losses are not 

ascertainable . . . 10 days prior to sentencing, . . . the court 

shall set a date for the final determination of the victim’s 

losses, not to exceed 90 days after sentencing.”). We think the 

Supreme Court’s reasons for concluding that the 90-day 

deadline in Dolan was not jurisdictional apply with equal 

force to the 72-hour deadline here. 

To begin with, like § 3664, the CVRA “does not specify 

a consequence for noncompliance with its timing provisions.” 

Dolan, 130 S. Ct. at 2539 (internal quotation marks omitted). 

And just as § 3664 emphasizes “the importance of[] imposing 

restitution upon those convicted of certain federal crimes,” 

Dolan, 130 S. Ct. at 2539, the CVRA stresses the need to 

“ensure that the crime victim is afforded the rights described 

in [§ 3771(a)],” 18 U.S.C. § 3771(b)(1). Moreover, as with 

the 90-day deadline for determining a victim’s losses, “to read 

[the 72-hour deadline for deciding a mandamus petition] as 

depriving the . . . court of the power to order [relief] would 

harm those—the victims of crime—who likely bear no 

responsibility for the deadline’s being missed and whom the 

statute also seeks to benefit.” Dolan, 130 S. Ct. at 2540. 

Finally, “neither the language nor the structure of [either] 

statute requires denying the victim [relief] in order to remedy 

[the] missed . . . deadline,” and “doing so would defeat the 

basic purpose of the [statute].” Id. at 2541. We thus conclude 

that the CVRA’s 72-hour time limit for deciding mandamus 

petitions is not jurisdictional and exercise our authority to 

decide Amy’s petition outside the deadline. 
8 

III 

 We must first decide the standard of review that applies 

to petitions for mandamus filed under the CVRA. This is an 

open question in our circuit. Monzel and the government both 

urge us to apply the traditional standard for mandamus, under 

which Amy must show that: (1) she has a clear and 

indisputable right to relief; (2) the district court has a clear 

duty to act; and (3) no other adequate remedy is available to 

her. See Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 

2002). Amy argues that even though Congress called the 

procedure it created under the CVRA “mandamus,” 18 U.S.C. 

§ 3771(d)(3), it intended to grant victims the ability to obtain 

ordinary appellate review, which in this case would mean de 

novo review of what it means to award “the full amount of the 

victim’s losses.” See id. § 2259(b)(1), (3). 

There is a circuit split on the standard of review for 

mandamus petitions brought under the CVRA. Three circuits 

apply the traditional mandamus standard urged by Monzel 

and the government. See In re Acker, 596 F.3d 370, 372 (6th 

Cir. 2010); In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); In 

re Antrobus, 519 F.3d 1123, 1125 (10th Cir. 2008). Four do 

not. See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017-18 

(9th Cir. 2006) (reviewing petition under the more generous 

“abuse of discretion or legal error” standard); In re W.R. Huff 

Asset Mgmt. Co., 409 F.3d 555, 563-64 (2d Cir. 2005) 

(reviewing petition for “abuse of discretion”); see also In re 

Stewart, 552 F.3d 1285, 1288-89 (11th Cir. 2008) (granting 

petition without asking whether victim had a clear and 

indisputable right to relief); In re Walsh, No. 06-4792, 2007 

WL 1156999, at *2 (3d Cir. Apr. 19, 2007) (unpublished) 

(stating in dicta that “mandamus relief is available under a 

different, and less demanding, standard under 18 U.S.C. 

§ 3771”). 
9 

We think the best reading of the statute favors applying 

the traditional mandamus standard. To begin with, there is no 

indication that Congress intended to invoke any other 

standard. That Congress called for “mandamus” strongly 

suggests it wanted “mandamus.” See Morissette v. United 

States, 342 U.S. 246, 263 (1952) (“[W]here Congress borrows 

terms of art in which are accumulated the legal tradition and 

meaning of centuries of practice, it presumably knows and 

adopts the cluster of ideas that were attached to each 

borrowed word in the body of learning from which it was 

taken and the meaning its use will convey to the judicial mind 

unless otherwise instructed.”). Furthermore, the paragraph 

that follows the mandamus provision states that the 

government may obtain ordinary appellate review of an order 

denying relief to a crime victim: “In any appeal in a criminal 

case, the Government may assert as error the district court’s 

denial of any crime victim’s right in the proceeding to which 

the appeal relates.” 18 U.S.C. § 3771(d)(4). That Congress 

expressly provided for “mandamus” in § 3771(d)(3) but 

ordinary appellate review in § 3771(d)(4) invokes “the usual 

rule that when the legislature uses certain language in one part 

of the statute and different language in another, the court 

assumes different meanings were intended.” Sosa v. AlvarezMachain, 542 U.S. 692, 711 n.9 (2004) (internal quotation 

marks omitted). If the government can obtain ordinary 

appellate review via mandamus, as Amy asserts, it is unclear 

what purpose § 3771(d)(4) serves by providing the 

government the same thing on direct appeal. 

Finally, the abbreviated 72-hour deadline suggests that 

Congress understood it was providing the traditional 

“extraordinary remedy” of mandamus. In re Brooks, 383 F.3d 

1036, 1041 (D.C. Cir. 2004). Courts will often be able to meet 

the compressed timeline under the traditional standard, 

because determining whether the lower court committed a 
10 

“clear and indisputable” error will not normally require 

extensive briefing or prolonged deliberation. By contrast, full 

briefing and plenary appellate review within the 72-hour 

deadline will almost always be impossible. Cf. Antrobus, 519 

F.3d at 1130 (“It seems unlikely that Congress would have 

intended de novo review in 72 hours of novel and complex 

legal questions . . . .”). 

Amy’s arguments that Congress provided ordinary 

appellate review but called it “mandamus” are not persuasive. 

Instructing courts to “ensure” that a crime victim is afforded 

certain rights, 18 U.S.C. § 3771(b)(1) (directing court to 

“ensure that the crime victim is afforded the rights described 

in [§ 3771(a)]”), says nothing about the standard of review. 

Neither does the fact that the court of appeals must “take up 

and decide” a petition within 72 hours. Id. § 3771(d)(3). A 

court that denies relief under the traditional mandamus 

standard has most certainly “take[n] up and decide[d]” the 

petition.3

Amy’s resort to legislative history fares no better. She 

points particularly to a comment by Senator Feinstein, one of 

the CVRA co-sponsors, that § 3771(d)(3) makes “a new use 

of a very old procedure, the writ of mandamus.” 150 CONG.

REC. 7295 (2004). Even assuming that the words of a single 

lawmaker could determine the meaning of the CVRA, the 

Senator’s statement says nothing about the standard of review 

for mandamus. More plausibly, her comment refers to the fact 

that prior to the CVRA most courts denied crime victims any 

opportunity to challenge lower court decisions impairing their 

 

3

 Senator Feinstein’s remark that “while mandamus is generally 

discretionary, [§ 3771(d)(3)] means that courts must review these 

cases,” 150 CONG. REC. 7304 (2004) (emphasis added), is of no 

help to Amy, either. A court applying the traditional mandamus 

standard to a CVRA petition still “reviews” the petition. 
11 

rights as victims, whether through mandamus or otherwise. 

See, e.g., United States v. McVeigh, 106 F.3d 325, 336 (10th 

Cir. 1997) (dismissing for lack of standing victims’ 

mandamus petition and appeal of district court order 

prohibiting victims from attending trial); United States v. 

Mindel, 80 F.3d 394, 398 (9th Cir. 1996) (dismissing for lack 

of standing victim’s appeal of restitution order and related 

mandamus petition); see also United States v. AguirreGonzález, 597 F.3d 46, 54 (1st Cir. 2010) (“[T]he default rule 

[is] that crime victims have no right to directly appeal a 

defendant’s criminal sentence.”). By providing victims the 

opportunity to challenge such decisions through mandamus, 

Congress did indeed make a “new use of a very old 

procedure.”4

 

IV 

 To prevail on the merits of her petition for mandamus, 

Amy must show that she has a clear and indisputable right to 

relief, that the district court has a clear duty to act, and that 

 

4

 Similarly, there is no reason to read Senator Feinstein’s statement 

that § 3771(d)(3) permits crime victims to “in essence, immediately 

appeal a denial of their rights by a trial court,” 150 CONG. REC. 

7295, or Senator Kyl’s comment that “appellate courts are designed 

to remedy errors of lower courts,” id. at 7304, to suggest that either 

senator intended ordinary appellate review to apply. A crime 

victim’s ability to “immediately appeal” a denial of her rights does 

not turn on the applicable standard of review, and a court applying 

the traditional mandamus standard can still remedy errors of law, 

provided the errors were clear and the petitioner has a right to 

relief. Here again, that Congress specifically provided for 

mandamus review suggests it intended appellate courts to remedy 

district court errors dealing with victims’ rights only when such 

errors were clear and indisputable. 
12 

she has no other adequate remedy. See Power, 292 F.3d at 

784. Amy’s petition satisfies each of these conditions. 

A 

 As a crime victim Amy has a “right to full and timely 

restitution as provided in law,” 18 U.S.C. § 3771(a)(6), and 

the district court has a corresponding duty to “direct” Monzel 

to pay “the full amount of [her] losses as determined by the 

court,” id. § 2259(b)(1). Because the record does not establish 

that Monzel’s possession of her image caused all of her 

losses, Amy does not have a right to the full $3,263,758 she 

seeks. She is, however, entitled to the amount of her losses 

that Monzel proximately caused. Because the $5000 the court 

awarded was, by its own acknowledgement, less than the 

amount of harm Monzel caused Amy, we grant her petition in 

part. 

1 

Section 2259 directs the district court to order the 

defendant to pay restitution to the “victim” of a crime of child 

sexual exploitation. See id. § 2259(a)-(b). “Victim” is defined 

as “the individual harmed as a result of a commission of a 

crime under this chapter.” Id. § 2259(c). Read together, these 

provisions tie restitution awards to harms caused “as a result” 

of a defendant’s crime. 

Section 2259 further instructs the court to award “the full 

amount of the victim’s losses,” id. § 2259(b)(1), defined as 

“any costs incurred by the victim for” six categories: 

(A) medical services; (B) physical and occupational therapy 

or rehabilitation; (C) necessary transportation, temporary 

housing, and child care expenses; (D) lost income; 

(E) attorneys’ fees and other litigation costs; and (F) a catchall category of “any other losses suffered by the victim as a 
13 

proximate result of the offense,” id. § 2259(b)(3)(A)-(F). 

There is a circuit split over whether the proximate cause 

requirement in the catch-all category also applies to the 

preceding categories. Most circuits to consider the issue have 

held that it does. See United States v. McDaniel, 631 F.3d 

1204, 1208-09 (11th Cir. 2011); United States v. Laney, 189 

F.3d 954, 965 (9th Cir. 1999); United States v. Crandon, 173 

F.3d 122, 125 (3d Cir. 1999). The Fifth Circuit alone has held 

it does not. In re Amy Unknown, No. 09-41238, slip op. at 12 

(Mar. 22, 2011). We join the plurality in concluding that all of 

the categories require proximate cause. Unlike those circuits, 

however, our reasoning rests not on the catch-all provision of 

§ 2259(b)(3)(F), but rather on traditional principles of tort and 

criminal law and on § 2259(c)’s definition of “victim” as an 

individual harmed “as a result” of the defendant’s offense. 

 It is a bedrock rule of both tort5

 and criminal law that a 

defendant is only liable for harms he proximately caused. See

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL 

AND EMOTIONAL HARM § 26 cmt. a (2010) (calling proximate 

cause a “requirement[] for liability in tort”);6 W. PAGE 

KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS

§ 41, at 263 (5th ed. 1984) (“An essential element of the 

 

5

 Although § 2259 is a criminal statute, it functions much like a tort 

statute by directing the court to make a victim whole for losses 

caused by the responsible party. Cf. United States v. Bach, 172 F.3d 

520, 523 (7th Cir. 1999) (“Functionally, the Mandatory Victims 

Restitution Act is a tort statute, though one that casts back to a 

much earlier era of Anglo-American law, when criminal and tort 

proceedings were not clearly distinguished.”). Thus, tort doctrine 

informs our thinking here. 

6

 The Restatement (Third) of Torts uses the term “scope of liability” 

in favor of “proximate cause.” See RESTATEMENT (THIRD) OF 

TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 

cmt. a. 
14 

plaintiff’s cause of action for negligence, or . . . any other tort, 

is that there be some reasonable connection between the act or 

omission of the defendant and the damage which the plaintiff 

has suffered. This connection usually is dealt with by the 

courts in terms of what is called ‘proximate cause’ . . . .”); 

WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4, at 

464 (2d ed. 2003) (“[For] crimes so defined as to require not 

merely conduct but also a specified result of conduct, the 

defendant’s conduct must be the ‘legal’ or ‘proximate’ cause 

of the result.”); see also id. § 6.4(c), at 471 (“The problems of 

[proximate] causation arise in both tort and criminal settings, 

and the one situation is closely analogous to the other. . . . 

[T]he courts have generally treated [proximate] causation in 

criminal law as in tort law . . . .”). The purpose of this rule is 

clear: “legal responsibility must be limited to those causes 

which are so closely connected with the result and of such 

significance that the law is justified in imposing liability.” 

KEETON ET AL., supra, § 41, at 264. Thus, we will presume 

that a restitution statute incorporates the traditional 

requirement of proximate cause unless there is good reason to 

think Congress intended the requirement not to apply. See

Sherwood Bros. v. District of Columbia, 113 F.2d 162, 163 

(D.C. Cir. 1940) (finding it “reasonable . . . to assume” that 

where a common law rule “has become embedded in the 

habits and customs of the community, . . . Congress had the 

common-law rule in mind when it legislated”). 

Here, nothing in the text or structure of § 2259 leads us to 

conclude that Congress intended to negate the ordinary 

requirement of proximate cause. By defining “victim” as a 

person harmed “as a result of” the defendant’s offense, the 

statute invokes the standard rule that a defendant is liable only 

for harms that he proximately caused. That the definition does 

not include an express requirement of proximate cause makes 

no difference. “Congress [is] presumed to have legislated 
15 

against the background of our traditional legal concepts which 

render [proximate cause] a critical factor, and absence of 

contrary direction” here “[is] taken as satisfaction [of] widely 

accepted definitions, not as a departure from them.” United 

States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978) (quoting 

Morissette, 342 U.S. at 263) (internal quotation marks 

omitted). 

We find the Fifth Circuit’s argument to the contrary 

unpersuasive. In its recent decision, that court emphasized 

that other restitution statutes define “victim” as a person 

“directly and proximately harmed as a result of” the 

defendant’s offense, e.g., 18 U.S.C. § 3663(a)(2); id.

§ 3663A(a)(2); id. § 3771(e), whereas § 2259(c) defines 

“victim” as a person harmed merely “as a result” of the 

defendant’s offense. But this difference in language tells us 

nothing about Congress’s intent in passing § 2259, because 

the definitions in those other statutes were all enacted after

§ 2259. Compare Antiterrorism and Effective Death Penalty 

Act of 1996, Pub. L. No. 104-132, sec. 205(a)(1)(F), § (a)(2), 

110 Stat. 1214, 1230 (codified at 18 U.S.C. § 3663(a)(2)), id. 

sec. 204(a), § (a)(2), 110 Stat. 1228 (codified at 18 U.S.C. 

§ 3663A(a)(2)), and Justice for All Act of 2004, Pub. L. No. 

108-405, sec. 102(a), § (e), 118 Stat. 2260, 2263 (codified at 

18 U.S.C. § 3771(e)), with Violent Crime Control and Law 

Enforcement Act of 1994, Pub. L. No. 103-322, 

sec. 40113(b)(1), § (f), 108 Stat. 1796, 1910 (codified at 18 

U.S.C. § 2259(c)). “[L]ater laws that ‘do not seek to clarify an 

earlier enacted general term’ and ‘do not depend for their 

effectiveness upon clarification, or a change in the meaning of 

an earlier statute,’ are ‘beside the point’ in reading the first 

enactment.” Gutierrez v. Ada, 528 U.S. 250, 257-58 (2000) 

(quoting Almendarez-Torres v. United States, 523 U.S. 224, 

237 (1998)). At most, the later statutes show that § 2259(c)’s 

use of the phrase “as a result of” is not the only way to impose 
16 

a proximate cause requirement. They do not prove that the 

phrase abrogates the requirement. 

We similarly find little reason to conclude that Congress 

intended to eliminate the requirement of proximate cause for 

the categories of loss in § 2259(b)(3)(A)-(E) by including an 

express requirement in paragraph (F)’s catch-all provision. 

Compare 18 U.S.C. § 2259(b)(3)(A)-(E), with id.

§ 2259(b)(3)(F) (instructing court to award restitution for 

“any other losses suffered by the victim as a proximate result 

of the offense”). Had Congress meant to abrogate the 

traditional requirement for everything but the catch-all, surely 

it would have found a clearer way of doing so. Proximate 

cause ensures “some direct relation between the injury 

asserted and the injurious conduct alleged.” Hemi Group, 

LLC v. City of New York, 130 S. Ct. 983, 989 (2010) (quoting 

Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 

(1992)) (internal quotation marks omitted). Without the 

limitation such a link provides, liability would attach to all 

sorts of injuries a defendant might indirectly cause, no matter 

how “remote” or tenuous the causal connection.7 Id.; see also

KEETON ET AL., supra, § 41, at 266 (explaining that “the mere 

 

7

 For example, without the requirement of proximate cause, if a 

victim who needed counseling as a result of Monzel’s crime were 

to suffer injuries in a car accident on the way to her therapist, she 

would be entitled to restitution from Monzel for any medical 

expenses relating to the accident, see 18 U.S.C. § 2259(b)(3)(A) 

(providing restitution for “medical services relating to physical, 

psychiatric, or psychological care”), because those expenses would 

not have occurred but for his crime. See RESTATEMENT (THIRD) OF 

TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 

(“Conduct is a factual cause of harm when the harm would not have 

occurred absent the conduct.”). An “intervening act” (or 

“superseding cause”) disrupts proximate causation, but not 

causation in fact. See id. § 34 cmt. b. 
17 

fact of causation, as distinguished from the nature and degree 

of the causal connection, can provide no clue of any kind to 

singling out those [who] are to be held legally responsible,” 

for “once events are set in motion, there is, in terms of 

causation alone, no place to stop” (emphasis added)). It is 

conceivable that Congress could intend that those who violate 

laws against child sexual exploitation should pay restitution 

for such attenuated harms, but it seems unlikely it did so here. 

“If Congress really had wished [courts to award restitution for 

losses defendants did not proximately cause], it could have 

provided that. It would, however, take a very clear provision 

to convince anyone of anything so odd.”8 Field v. Mans, 516 

U.S. 59, 68 (1995). 

2 

Because restitution awards under § 2259 are limited to 

harms the defendant proximately caused, we cannot say that 

Amy is clearly and indisputably entitled to the full $3,263,758 

she seeks. Although the government submitted evidence that 

Amy suffered losses stemming from her sexual exploitation 

as a child, see Mot. for Restitution at 6-7; Gov’t’s Mem. of 

 

8

 The Fifth Circuit suggests that restricting the proximate cause 

requirement to § 2259(b)(3)(F)’s catch-all category would not 

“open the door to limitless restitution.” Amy Unknown, No. 09-

41238, slip op. at 16. This is so, that court says, because § 2259 

“includes a general causation requirement in its definition of a 

victim.” Id. (emphasis added) (citing 18 U.S.C. § 2259(c) (“For 

purposes of this section, the term ‘victim’ means the individual 

harmed as a result of a commission of a crime under this 

chapter . . . .”)). But a “general” causation requirement without a 

subsidiary proximate causation requirement is hardly a requirement 

at all. So long as the victim’s injury would not have occurred but 

for the defendant’s offense, the defendant would be liable for the 

injury. 
18 

Law Regarding the Victims’ Losses at 6-15, and argued 

persuasively that possession of child pornography causes 

harm to the minors depicted, Mot. for Restitution at 9-12; see 

also New York v. Ferber, 458 U.S. 747, 758-60 (1982), it 

made no showing as to the amount of Amy’s losses traceable 

to Monzel. Whatever else may be said of his crime, the record 

before us does not establish that Monzel caused all of Amy’s 

losses. 

Nor can we say that Amy is clearly and indisputably 

entitled to the full $3,263,758 from Monzel on the ground that 

her injuries are “indivisible.” Amy argues at length that the 

causes of her injuries cannot reasonably be divided among the 

unknown number of possessors and distributors of her images 

and that Monzel is therefore jointly and severally liable with 

other possessors and distributors for the full amount of her 

losses. See RESTATEMENT (THIRD) OF TORTS:

APPORTIONMENT OF LIABILITY § 12 (2000) (“Each person 

who commits [an intentional tort] is jointly and severally 

liable for any indivisible injury legally caused by the tortious 

conduct.”); KEETON ET AL., supra, § 52, at 347 (“[E]ntire 

liability rests upon the obvious fact that each has contributed 

to the single result, and that no reasonable division can be 

made.”). 

But the very sources upon which Amy relies undermine 

her argument. Prosser, whom she quotes at length, states that 

“[s]uch entire liability is imposed” where two or more causes 

produce a single “result” and “either cause would have been 

sufficient in itself” to produce the result or each was 

“essential to the injury.” KEETON ET AL., supra, § 52, at 347. 

Here, Monzel’s possession of Amy’s image, which the district 

court found added to her injuries, was not “sufficient in itself” 

to produce all of them, nor was it “essential” to all of them. 

Amy’s profound suffering is due in large part to her 
19 

knowledge that each day, untold numbers of people across the 

world are viewing and distributing images of her sexual 

abuse. See Mot. for Restitution at 6 (“The truth is, I am being 

exploited and used every day and every night somewhere in 

the world by someone.”); Gov’t’s Mem. of Law Regarding 

the Victims’ Losses at 8 (“Every day of my life I live in 

constant fear that someone will see my pictures and recognize 

me and that I will be humiliated all over again.”). Monzel’s 

possession of a single image of Amy was neither a necessary 

nor a sufficient cause of all of her losses. She would have 

suffered tremendously from her sexual abuse regardless of 

what Monzel did. See also KEETON ET AL., supra, § 52, at 346 

(stating that “entire liability” is generally not imposed “where 

there is [a] factual basis for holding that [the] wrongdoer’s 

conduct was not a cause in fact of part of the harm”). 

Similarly, the Restatement (Third) of Torts, upon which Amy 

also relies, instructs that an “indivisible injury” is “one in 

which the entire damages were caused by every legally 

culpable act of each person.” RESTATEMENT (THIRD) OF 

TORTS: APPORTIONMENT OF LIABILITY § 26 reporters’ note 

cmt. g (emphasis added). As before, the government has not 

shown that Monzel caused the entirety of Amy’s losses. 

Joint and several liability may also be appropriate under 

§ 3664(h) where there is more than one defendant and each 

has contributed to the victim’s injury. See 18 U.S.C. 

§ 3664(h) (“If the court finds that more than [one] defendant 

has contributed to the loss of a victim, the court may make 

each defendant liable for payment of the full amount of 

restitution or may apportion liability among the defendants to 

reflect the level of contribution to the victim’s loss and 

economic circumstances of each defendant.”);9 see also

 

9

 The government agrees with Amy that the best reading of § 2259 

calls for joint and several liability in the full amount of Amy’s 
20 

United States v. Wall, 349 F.3d 18, 26 (1st Cir. 2003) (“Under 

18 U.S.C. § 3664(h), a court issuing a restitution order is 

permitted to . . . make each defendant liable for the full 

amount of restitution by imposing joint and several 

liability.”); accord United States v. Squirrel, 588 F.3d 207, 

212 (4th Cir. 2009); United States v. Moten, 551 F.3d 763, 

768 (8th Cir. 2008); United States v. Hunt, 521 F.3d 636, 649 

(6th Cir. 2008); United States v. Nucci, 364 F.3d 419, 422 (2d 

Cir. 2004); United States v. Booth, 309 F.3d 566, 576 (9th 

Cir. 2002); United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 

2001). It is unclear, however, whether joint and several 

liability may be imposed upon defendants in separate cases. 

The Fourth and Sixth Circuits have held, in unpublished 

opinions, that § 3664(h) does not apply to prosecutions where 

there is only one defendant. See United States v. McGlown, 

No. 08-3903, 2010 WL 2294527, at *3 (6th Cir. June 8, 

2010); United States v. Channita, No. 01-4060, 2001 WL 

578140, at *1 (4th Cir. May 30, 2001). The Fifth Circuit, by 

contrast—without addressing § 3664(h)’s applicability—said 

a district court could order joint and several liability for a lone 

defendant such as Monzel under § 3664(m)(1)(A), which 

provides that a district court may “enforce[]” a restitution 

order “by all other available and reasonable means.” See Amy 

Unknown, No. 09-41238, slip op. at 17. We need not resolve 

this issue, because so long as the requirement of proximate 

cause applies, as it does here, a defendant can be jointly and 

severally liable only for injuries that meet that requirement. 

See RESTATEMENT (SECOND) OF TORTS § 879 cmt. b (1979). 

Because the record does not show that Monzel proximately 

 

losses from her sexual exploitation as a child, but, pointing to 

§ 3664(h), maintains that the statute affords the district court 

discretion on whether to order joint and several liability. See Resp. 

of the United States to Pet. for Writ of Mandamus at 15-16; Oral 

Arg. Tr. at 42, 49. 
21 

caused all of Amy’s injuries, the district court did not clearly 

and indisputably err by declining to impose joint and several 

liability on him for the full $3,263,758 she seeks.10

The district court did, however, clearly err by awarding 

an amount of restitution it acknowledged was less than the 

harm Monzel had caused. Under § 3664(e), the government 

bears the burden of demonstrating the amount of loss the 

victim suffered “as a result of the [defendant’s] offense.” In 

this case, because the government failed to submit “any 

evidence whatsoever” regarding the amount of Amy’s losses 

attributable to Monzel,11 Restitution Order at 3, the district 

court said it had no basis upon which to calculate the amount 

of harm Monzel had proximately caused her and so decided to 

award “nominal” restitution of $5000, id. at 5. 

 

10 Amy’s effort to analogize Monzel’s possession to participation in 

a “joint enterprise” with “mutual agency, so that the act of one is 

the act of all,” Pet. for Writ of Mandamus at 24 (quoting WILLIAM 

L. PROSSER, THE LAW OF TORTS § 52, at 315 (4th ed. 1971)), also 

fails. There is no evidence at all in the record that Monzel acted “in 

concert” with others to distribute and possess Amy’s image, as is 

required for such enterprise liability to apply. KEETON ET AL., 

supra, § 52, at 346. 

11 In an opinion issued several months prior to the restitution order, 

the district court concluded that Amy’s “alleged losses were 

proximately caused by Monzel’s possession of [her] image[].” 

United States v. Monzel, 746 F. Supp. 2d 76, 88 (D.D.C. 2010). The 

court made clear, however, that it was not deciding at that point the 

amount of Amy’s losses that Monzel had caused. Rather, the court 

was “only identif[ying] the losses alleged for the purposes of 

considering the causal connection between them and [Monzel’s] 

conduct.” Id. at 84 n.12. Whether “the Government ha[d] met its 

burden to prove the losses or the amount to be apportioned to 

Monzel” were issues to be decided later. Id.
22 

 But in the very next sentence the court said it had “no 

doubt” that this award was “less than the actual harm” 

Monzel had caused Amy. Id. at 5. This was clear and 

indisputable error. A district court cannot avoid awarding the 

“full amount of the victim’s losses,” 18 U.S.C. § 2259(b)(1), 

simply because the attribution analysis is difficult or the 

government provides less-than-ideal information. The court 

must order restitution equal to the amount of harm the 

government proves the defendant caused the victim. See id.

§ 3664(e) (“Any dispute as to the proper amount or type of 

restitution shall be resolved by the court by the preponderance 

of the evidence. The burden of demonstrating the amount of 

the loss sustained by a victim as a result of the offense shall 

be on the attorney for the Government.”). Certainly the court 

cannot award less restitution than it determines the victim is 

entitled to. 

We recognize, of course, that determining the dollar 

amount of a victim’s losses attributable to the defendant will 

often be difficult. In a case such as this one, where the harm is 

ongoing and the number of offenders impossible to pinpoint, 

such a determination will inevitably involve some degree of 

approximation. But this is not fatal. Section 2259 does “not 

impose[] a requirement of causation approaching 

mathematical precision.” United States v. Doe, 488 F.3d 

1154, 1160 (9th Cir. 2007). Rather, the district court’s charge 

is “to estimate, based upon facts in the record, the amount of 

[the] victim’s loss with some reasonable certainty.” Id. 

On remand, the district court should consider anew the 

amount of Amy’s losses attributable to Monzel’s offense and 

order restitution equal to that amount. Although there is 

relatively little in the present record to guide its 

decisionmaking on this, the district court is free to order the 

government to submit evidence regarding what losses were 
23 

caused by Monzel’s possession of Amy’s image or to order 

the government to suggest a formula for determining the 

proper amount of restitution. The burden is on the 

government to prove the amount of Amy’s losses Monzel 

caused. We expect the government will do more this time 

around to aid the district court. We express no view as to the 

appropriate level of restitution, but emphasize that in fixing 

the amount the district court must rely upon some principled 

method for determining the harm Monzel proximately caused. 

B 

 To prevail on her petition, Amy must also show that 

mandamus is her only adequate remedy. See Power, 292 F.3d 

at 784. Since the enactment of the CVRA, every circuit to 

consider the question has held that mandamus is a crime 

victim’s only recourse for challenging a restitution order. See 

Aguirre-González, 597 F.3d at 52-55 (1st Cir.); United States 

v. Hunter, 548 F.3d 1308, 1317 (10th Cir. 2008) (“We hold 

that individuals claiming to be victims under the CVRA may 

not appeal from the alleged denial of their rights under that 

statute except through a petition for a writ of mandamus as set 

forth by 18 U.S.C. § 3771(d)(3).”); cf. Amy Unknown, No. 09-

41238, slip op. at 11 (5th Cir.) (“affirm[ing]” that “[a crime 

victim] likely has no other means for obtaining review of the 

district court’s decision not to order restitution” besides 

mandamus (quoting In re Amy, 591 F.3d 792, 793 (5th Cir. 

2009)) (internal quotation marks omitted)).12 We agree. 

 

12 The Sixth Circuit’s position on the issue is unclear. In In re 

Acker, 596 F.3d 370 (2010), the Sixth Circuit held that a putative 

victim has no right to directly appeal a district court decision not to 

award restitution where the victim simultaneously files a 

mandamus petition raising “identical issues” as the appeal, see id.

at 373. Acker distinguished an earlier Sixth Circuit decision, In re 
24 

Although we “have jurisdiction of appeals from all final 

decisions of the district courts,” 28 U.S.C. § 1291, the general 

rule is that “one who is not a party or has not been treated as a 

party to a judgment has no right to appeal therefrom.” 

Karcher v. May, 484 U.S. 72, 77 (1987). However, “[t]he 

Supreme Court has ‘never . . . restricted the right to appeal to 

named parties to [a] litigation,’” In re Sealed Case (Med. 

Records), 381 F.3d 1205, 1211 n.4 (D.C. Cir. 2004) (omission 

and second alteration in original) (quoting Devlin v. 

Scardelletti, 536 U.S. 1, 7 (2002)), and “if [a] decree affects 

[a third party’s] interests, he is often allowed to appeal,” id.

(second alteration in original) (quoting Castillo v. Cameron 

Cnty., 238 F.3d 339, 349 (5th Cir. 2001)). 

Amy argues that even though she was not a party below, 

she has a direct interest in the district court’s restitution order 

and should therefore be allowed to appeal. Her argument, 

however, overlooks that she is seeking to appeal part of 

Monzel’s sentence. Regardless of the rules that govern nonparty appeals in other contexts, “the default rule [is] that 

crime victims have no right to directly appeal a defendant’s 

criminal sentence.” Aguirre-González, 597 F.3d at 54; see 

also Hunter, 548 F.3d at 1312 (“[W]e are aware of no 

precedent for allowing a non-party appeal that would reopen a 

criminal case following sentencing.”). 

Amy claims that several cases from this and other circuits 

reflect “well-recognized authority . . . permitting non-parties 

 

Siler, 571 F.3d 604 (2009), that permitted victims to directly appeal 

a district court’s denial of their motion under the CVRA to obtain 

the defendants’ presentence reports, id. at 607-09, on the ground 

that the Siler victims had “been effectively treated as intervening 

parties” by the district court and did not assert their rights under the 

CVRA until “eighteen months after the criminal proceedings had 

concluded,” Acker, 596 F.3d at 373. 
25 

to appeal decisions in criminal cases which directly harm 

their rights.” Pet’r’s Mot. to Consolidate Appeal with 

Mandamus Pet. at 8. But none of the cases she cites involved 

a request by a victim to alter a defendant’s sentence. Rather, 

all of them concerned disclosure of information in which the 

non-party had some interest. See id. at 8-9 n.4 (citing United 

States v. Antar, 38 F.3d 1348 (3d Cir. 1994); In re Subpoena 

to Testify Before Grand Jury Directed to Custodian of 

Records, 864 F.2d 1559 (11th Cir. 1989); Anthony v. United 

States, 667 F.2d 870 (10th Cir. 1981); In re Smith, 656 F.2d 

1101 (5th Cir. 1981); United States v. Hubbard, 650 F.2d 293 

(D.C. Cir. 1980); United States v. Briggs, 514 F.2d 794 (5th 

Cir. 1974)); see also Amy’s Resp. to Gov’t Mot. to Dismiss at 

17 (citing Doe v. United States, 666 F.2d 43 (4th Cir. 1981)); 

Hubbard, 650 F.2d at 311 n.67 (“Federal courts have 

frequently permitted third parties to assert their interests in 

preventing disclosure of material sought in criminal 

proceedings or in preventing further access to materials 

already so disclosed.”). Here, by contrast, Amy is asking the 

court to revisit her restitution award, which is part of 

Monzel’s sentence.13 See, e.g., 18 U.S.C. § 3663A(a)(1) 

 

13 The only case Amy points us to where a court has allowed a 

crime victim to appeal part of a defendant’s sentence is United 

States v. Kones, 77 F.3d 66 (3d Cir. 1996), in which the Third 

Circuit heard a victim’s appeal of a district court order denying 

restitution, see id. at 68. Kones’s persuasive value on this point is 

negligible, however, given that the government did not contest the 

court’s jurisdiction to hear the victim’s appeal, see Def.-Appellee’s 

Br. at 1, Kones, No. 95-1434 (3d Cir. Aug. 16, 1995), and the 

court’s statement of its jurisdiction was one sentence long and 

devoid of discussion, see 77 F.3d at 68; see also Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (stating that 

“drive-by jurisdictional rulings” where jurisdiction is “assumed by 

the parties[] and . . . assumed without discussion by the Court” 

have “no precedential effect”); Lewis v. Casey, 518 U.S. 343, 352 
26 

(“[W]hen sentencing a defendant convicted of an offense 

described in subsection (c), the court shall order . . . that the 

defendant make restitution to the victim of the offense . . . .”);

id. § 3664(o) (“A sentence that imposes an order of restitution 

is a final judgment . . . .”); United States v. Cohen, 459 F.3d 

490, 496 (4th Cir. 2006) (“[R]estitution is . . . part of the 

criminal defendant’s sentence.”); United States v. Acosta, 303 

F.3d 78, 87 (1st Cir. 2002) (“It is undisputed that restitution is 

part of a sentence.”); United States v. Syme, 276 F.3d 131, 

159 (3d Cir. 2002) (“Restitution orders have long been treated 

as part of the sentence for the offense of conviction . . . .”). 

Amy thus runs headlong into the rule against direct appeals of 

sentences by crime victims. 

The CVRA does not alter this rule. To begin with, 

“where a statute expressly provides a particular remedy or 

remedies, a court must be chary of reading others into it.” 

Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 

(1979). That the CVRA expressly provides for mandamus 

review makes us reluctant to read into it an implied right to 

direct appeal. Moreover, the CVRA’s “carefully crafted and 

detailed enforcement scheme provides ‘strong evidence that 

Congress did not intend to authorize other remedies that it 

simply forgot to incorporate expressly.’” Mertens v. Hewitt 

Assocs., 508 U.S. 248, 254 (1993) (quoting Mass. Mut. Life 

Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985)). Not only 

does the CVRA provide for mandamus review, but it also 

expressly authorizes the government to assert crime victims’ 

rights on direct appeal, see 18 U.S.C. § 3771(d)(4), and sets 

forth specific rules for when crime victims may move to 

reopen sentences, see id. § 3771(d)(5). That Congress 

included these provisions but did not provide for direct 

 

n.2 (1996) (“[W]e have repeatedly held that the existence of 

unaddressed jurisdictional defects has no precedential effect.”). 
27 

appeals by crime victims is strong evidence that it did not 

intend to authorize such appeals. 

It is also significant that while Congress expressly 

authorized the government to assert victims’ rights on direct 

appeal under § 3771(d)(4), it made no such provision for 

victims themselves. See id. § 3771(d)(4) (“In any appeal in a 

criminal case, the Government may assert as error the district 

court’s denial of any crime victim’s right in the proceeding to 

which the appeal relates.”). This contrasts with § 3771(d)(3), 

which authorizes both the government and victims to bring 

mandamus petitions. See id. § 3771(d)(3) (stating that any 

“movant” who has asserted a crime victim’s rights before the 

district court may petition for mandamus); id. § 3771(d)(1) 

(providing that the crime victim, the crime victim’s 

representative, and the government may assert a victim’s 

rights before the district court). Had Congress intended to 

allow victims to directly appeal, it seems likely it would have 

provided them that right under § 3771(d)(4) just as it provided 

them mandamus petitions under § 3771(d)(3). Cf. Russello v. 

United States, 464 U.S. 16, 23 (1983) (“[W]here Congress 

includes particular language in one section of a statute but 

omits it in another section of the same Act, it is generally 

presumed that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion.”). 

Amy also argues that she is entitled to a direct appeal 

because two other circuits permitted crime victims to appeal 

restitution orders prior to the enactment of the CVRA, a 

statute that was intended to broaden, not narrow, available 

remedies. See United States v. Perry, 360 F.3d 519, 524-33 

(6th Cir. 2004) (permitting crime victim to appeal vacatur of 

lien enforcing victim’s restitution award under the Mandatory 

Victims Restitution Act, 18 U.S.C. §§ 3663A, 3664); United 

States v. Kones, 77 F.3d 66, 68 (3d Cir. 1996) (hearing crime 
28 

victim’s appeal of district court order denying restitution 

under the Victim and Witness Protection Act, 18 U.S.C. 

§ 3663); see also 150 CONG. REC. 7301 (statement of Sen. 

Kyl) (“It is not the intent of [the CVRA] to limit any laws in 

favor of crime victims that may currently exist, whether these 

laws are statutory, regulatory, or found in case law.”); id.

(statement of Sen. Feinstein) (“[I]t is not our intent to restrict 

victims’ rights or accommodations found in other laws.”). But 

even if two circuits allowed crime victims to appeal 

restitution orders prior to the enactment of the CVRA, a 

plurality of circuits did not. See Mindel, 80 F.3d at 398 (9th 

Cir.); United States v. Kelley, 997 F.2d 806, 807 (10th Cir. 

1993); United States v. Johnson, 983 F.2d 216, 217 (11th Cir. 

1993); United States v. Grundhoefer, 916 F.2d 788, 793 (2d 

Cir. 1990). There was no settled right of appeal for the CVRA 

to narrow.14

Amy responds that the cases preventing victims from 

appealing restitution orders are irrelevant because they were 

decided under the Victim and Witness Protection Act 

(VWPA), which, unlike § 2259, makes restitution 

discretionary rather than mandatory, takes into account the 

defendant’s financial circumstances, and does not provide 

victims much opportunity to influence sentencing 

proceedings. See 18 U.S.C. § 3663(a). We should look 

instead, she argues, to United States v. Perry, 360 F.3d 519, a 

2004 Sixth Circuit decision that permitted a crime victim to 

appeal an adverse restitution order under the Mandatory 

Victims Restitution Act (MVRA), a statute more analogous to 

 

14 Moreover, only one circuit had ever allowed a victim to appeal 

the amount of restitution. See Kones, 77 F.3d at 68 (3d Cir.). 

Another circuit had allowed a victim to appeal an order impairing 

her ability to collect restitution, see Perry, 360 F.3d at 522, 524-33 

(6th Cir.), but did not consider whether the victim could appeal the 

actual amount of the award. 
29 

§ 2259, id. at 524-33. Perry expressly declined to follow the 

VWPA cases on the ground that the MVRA is “dramatically 

more ‘pro-victim’” than the VWPA, id. at 524: the MVRA 

makes restitution mandatory, not discretionary, see 18 U.S.C. 

§ 3663A(a)(1); requires the court to award full restitution 

regardless of the defendant’s financial circumstances, see id.

§ 3664(f)(1)(A); and gives victims a role in the sentencing 

process, see id. § 3664(d)(2).

But the victim in Perry was not appealing an order 

awarding restitution; rather, she was appealing an order 

affecting her ability to enforce an order awarding restitution. 

See Perry, 360 F.3d at 522 (describing victim’s appeal of 

order vacating judgment lien she had obtained to enforce her 

restitution award). Granting the victim relief would not have 

altered the defendant’s sentence. Here, by contrast, Amy is 

appealing the order awarding her restitution and is seeking a 

higher award. Granting her relief would alter the defendant’s 

sentence.15

Moreover, the CVRA and the MVRA differ significantly 

in the extent to which they provide remedies for challenging 

restitution orders. The MVRA may provide victims an 

opportunity to submit affidavits detailing their losses, see 18 

U.S.C. § 3664(d)(2), but it does not provide a right to petition 

the court of appeals for mandamus, grant the government 

express power to assert crime victims’ rights on appeal, or set 

forth procedures by which victims may move to reopen 

sentences. Thus, the Supreme Court’s teaching that a 

 

15 In any event, Perry is not the only case to consider a victim’s 

right to appeal an MVRA restitution order. In United States v. 

United Security Savings Bank, 394 F.3d 564 (8th Cir. 2004) (per 

curiam), the Eighth Circuit said that a crime victim may not appeal 

a restitution order made under the MVRA, id. at 567. Thus, a 

victim’s right to appeal under the MVRA is far from settled. 
30 

“statute’s carefully crafted and detailed enforcement scheme 

provides ‘strong evidence that Congress did not intend to 

authorize other remedies that it simply forgot to incorporate 

expressly,’” Mertens, 508 U.S. at 254 (quoting Russell, 473 

U.S. at 146-47), applies with much greater force here than in 

Perry. 

For these reasons, we hold that Amy may not directly 

appeal her restitution award and we grant the government’s 

motion to dismiss her appeal.16 Mandamus is Amy’s only 

recourse to challenge the award. 

V 

 We grant Amy’s petition for mandamus in part and 

instruct the district court to consider anew the amount of her 

losses attributable to Monzel and to order restitution equal to 

that amount. We further dismiss Amy’s direct appeal of her 

restitution award and dismiss as moot her motion to 

consolidate her mandamus petition with her direct appeal. 

So ordered. 

 

16 Amy also argues that she is entitled to appeal the district court’s 

restitution order under the collateral order doctrine. Because she 

cannot directly appeal her restitution award in any event, the 

collateral order doctrine is of no help to her.