IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________ 

No. 14-40505

___________________ 

In re: JEWELL ALLEN; ROSALINDA ARMADILLO; MAVIS BRANCH; 

FELICIANO CANTU; DAVE GALLOWAY; JOHN GARCIA; JULIAN 

GARCIA, III; JULIAN GARCIA; VICTORIA GARZA; ROBE GARZA; 

DESIREE LARA; DIANA LINAN; THELMA MORGAN; JANIE 

MUMPHORD; JOEL MUMPHORD; FRANK PEREZ; JEAN SALONE; 

JAMES SHACK; BETTY WHITESIDE; BERTHA WILSON,

 Petitioners

_______________________ 

Petition for Writ of Mandamus to the

Southern District of Texas

USDC No. 2:06-CR-563-1

_______________________ 

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Petitioners seek a writ of mandamus under the Crime Victims’ Rights 

Act, 18 U.S.C. § 3771(d)(3) (“CVRA”), pertaining to the district court’s denial 

of restitution. The district court denied restitution under the Victim and 

Witness Protection Act (“VWPA”), the discretionary counterpart to the 

Mandatory Victims Restitution Act (“MVRA”). The VWPA provides that the 

court “may order” defendants convicted of certain offenses to “make restitution 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 19, 2014

Lyle W. Cayce

Clerk

 

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No. 14-40505

to any victim of such offense[s].” 18 U.S.C. § 3663(a). The VWPA further 

provides that the court “may decline” to order restitution “[t]o the extent 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.” 18 U.S.C. § 

3663(a)(1)(B)(ii). 

“The language of the [VWPA] exemption provision gives the district court 

a certain amount of discretion in determining whether to consider additional 

evidence in assessing restitution.” United States v. Dupre, 117 F.3d 810, 824 

(5th Cir. 1997); see also United States v. Cienfuegos, 462 F.3d 1160, 1167-68 

(9th Cir. 2006) (distinguishing between the MVRA and the VWPA). Although 

courts have used this balancing exemption infrequently, courts have exercised 

their discretion to invoke this exemption in cases involving “difficult issues of 

causation and speculative loss.” Dupre, 117 F.3d at 824; see, e.g., United States 

v. Fountain, 768 F.2d 790, 802 (7th Cir. 1985).

In considering the record before us, and mindful of the mandamus 

posture of this matter,1 we conclude that Petitioners have not shown that the 

district court clearly and indisputably erred in finding that “the complication 

and prolongation of the sentencing process” involved in fashioning a restitution 

order for lifetime medical monitoring outweighed the need for such restitution 

in this case. See 18 U.S.C. § 3663(a)(1)(B)(ii); In re Allen, 701 F.3d 734, 735 

(5th Cir. 2012) (citing In re Dean, 527 F.3d 391, 394 (5th Cir. 2008)). In 

reaching this finding, the court held hearings, received over 800 victim impact 

statements, heard expert testimony from Citgo’s and the Government’s 

experts, heard oral testimony from over 90 members of the community, allowed 

1 Defendant Citgo’s appeal and the Government’s cross-appeal are currently pending before 

this court under Case No. 14-40128. 

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the parties and victims extensive briefing on restitution, and issued a twentypage written opinion. The court found that Petitioners and the Government 

“failed to show, based on a preponderance of the evidence, that medical 

monitoring is necessary based on their increased risk of future latent disease 

due to Tanks 116 and 117.” In reaching this conclusion (as well as its other 

tandem restitution denial rulings), the court found there to be insufficient 

evidence on the issues of causation and cost calculation, including insufficient 

evidence as to the levels of exposure to emissions from Tanks 116 and 117, and 

as to the particular long-term health risks proximately caused by exposure to 

those levels of emissions. The court further found there to be insufficient 

evidence as to the types of tests medically appropriate to test for the particular 

health risks posed, and the costs for those tests. Finally, the court found that, 

considering the state of the evidence and the time already devoted to 

evaluating restitution, determining restitution would unduly complicate and 

prolong the sentencing process. We cannot say that the district court clearly 

and indisputably erred in this regard.2 

We further find no clear and indisputable right, amenable to and 

warranting mandamus relief, based on the district court’s issuance of a final 

written order declining restitution pursuant to the above exemption provision 

of the VWPA. To be sure, 18 U.S.C. § 3553(c) provides that “[t]he court, at the 

time of sentencing, shall state in open court the reasons for its imposition of 

the particular sentence,” and “[i]f the court does not order restitution...the 

court shall include in the statement the reason therefor.” Title 18 U.S.C. § 

3664(d)(5), however, expressly allows a court a deferment period “not to exceed 

2 Although we hold that Petitioners have not shown a clear and indisputable right to 

relief through the writ of mandamus, we express no opinion as to the proper outcome under 

the standards of review applicable under any direct review process. Compare United States 

v. Bengis, 631 F.3d 33, 41 (2d Cir. 2011), with Fountain, 768 F.2d at 802, with Dupre, 117 

F.3d at 824.

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90 days after sentencing” to make a restitution determination if “the victim’s 

losses are not ascertainable” prior to sentencing (as well as a 60 day period for 

victims to petition the court to amend a restitution order after discovering 

“further losses”). Here, the district court held a sentencing hearing, heard 

testimony from victims, and received victim impact statements. The court 

then, consistent with the § 3553(c) imperative cited by Petitioners, announced 

that it would not order restitution at sentencing, stating in open court as its 

reason that victim losses were not ascertainable due to their complexity. 

Petitioners provide no authority demonstrating a clear and indisputable right, 

amenable to and warranting mandamus relief under § 3771(d)(3), or indeed 

appropriate for supervisory mandamus intercession, to have such a final 

restitution determination—deferred pursuant to § 3664(d)(5), and then

declined pursuant to § 3663(a)(1)(B)(ii)—announced in open court after the 

defendant’s sentencing.

For the reasons above, IT IS ORDERED that the petition for writ of 

mandamus is DENIED.

IT IS FURTHER ORDERED that Petitioners’ motion to waive the 

requirement for a 72 hour ruling on this matter, or alternatively to consolidate 

the petition with the related appeal, is DENIED as MOOT. 

IT IS FURTHER ORDERED that Dr. Melissa L. Jarrell’s motion for 

leave to file an amicus curiae brief is GRANTED. 

IT IS FURTHER ORDERED that Lawrence Jordan, Rosie Porter, and 

Rose Alvarez’s motion for leave to intervene is DENIED.

IT IS FURTHER ORDERED that Petitioners’ motion for leave to file a 

reply is DENIED.

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