IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09–41238

In re: AMY UNKNOWN,

Petitioner

Consolidated with 09–41254

UNITED STATES OF AMERICA,

Plaintiff - Appellee

DOYLE RANDALL PAROLINE

Defendant - Appellee

v.

AMY UNKNOWN,

Movant - Appellant

-----------------------------

No. 09-31215

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MICHAEL WRIGHT

Defendant - Appellant

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2012

Lyle W. Cayce

Clerk
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1 Judge Higginson is recused and did not participate in any aspect of this en banc

rehearing.

2

In Wright’s case, because the Government did not appeal and Amy did not seek

mandamus review, we revised our opinion to affirm Wright’s sentence, in compliance with

Greenlaw v. United States, 554 U.S. 237 (2008). 

2

Appeals from the United States District Courts

for the Eastern District of Texas

and the Eastern District of Louisiana

Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH,

GARZA, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK,

HAYNES, and GRAVES, Circuit Judges.1

GARZA, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, JONES,

CLEMENT, PRADO, OWEN, ELROD, and HAYNES, Circuit Judges:

The original opinion in this matter was issued by the en banc court on

October 1, 2012. In re Unknown, No. 09-41238, 2012 WL 4477444 (5th Cir. Oct.

1, 2012) (en banc). A petition for rehearing en banc is currently pending before

the en banc court. The petition for rehearing en banc is granted in part.

Accordingly, we WITHDRAW our previous opinion and replace it with the

following opinion.2

The issue presented to the en banc court is whether 18 U.S.C. § 2259

requires a district court to find that a defendant’s criminal acts proximately

caused a crime victim’s losses before the district court may order restitution,

even though that statute only contains a “proximate result” requirement in §

2259(b)(3)(F). All our sister circuits that have addressed this question have

expanded the meaning of § 2259(b)(3)(F)to apply to all losses under § 2259(b)(3),

thereby restricting the district court’s award of restitution to a victim’s losses
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3

that were proximately caused by a defendant’s criminal acts. A panel of this

court rejected that reading, and instead focused on § 2259’s plain language to

hold that § 2259 does not limit a victim’s total recoverable losses to those

proximately resulting from a defendant’s conduct. A subsequent panel applied

that holding to another appeal, yet simultaneously questioned it in a special

concurrence that mirrored the reasoning of our sister circuits. To address the

discrepancy between the holdings ofthis and other circuits, and to respond to the

concerns of our court’s special concurrence, we granted rehearing en banc and

vacated the panel opinions. 

This en banc court holds that § 2259 only imposes a proximate result

requirement in § 2259(b)(3)(F); it does not require the Government to show

proximate cause to trigger a defendant’s restitution obligations for the categories

of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the

plain language of the statute dictates that a district court must award

restitution for the full amount of those losses. We VACATE the district court’s

judgment in United States v. Paroline, 672 F. Supp. 2d 781 (E.D. Tex. 2009), and

REMAND for further proceedings consistent with this opinion. We AFFIRM the

district court’s judgment in United States v. Wright, No. 09-CR-103 (E.D. La.

Dec. 16, 2009). 

I

We review a set of appeals arising from two separate criminal judgments

issued by different district courts within this circuit. Both appeals involve

restitution requests by Amy, a young adult whose uncle sexually abused her as

a child, captured his acts on film, and then distributed them for others to see.

The National Center for Missing and Exploited Children, which reports that it

has found at least 35,000 images of Amy’s abuse among the evidence in over

3,200 child pornography cases since 1998, describes the content of these images
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3 Amy attested that this amount reflects the total amount of her losses from the

production, distribution, and possession of the images of her abuse and primarily comprises

costs for future psychological care and future lost income.

4

as “extremely graphic.” The Government reports that restitution has been

ordered for Amy in atleast 174 child pornography cases across the United States

in amounts ranging from $100 to $3,543,471.

A

In the consolidated cases In re Amy, 591 F.3d 792 (5th Cir. 2009), and In

re Amy Unknown, 636 F.3d 190 (5th Cir. 2011), a panel of this court reviewed

Amy’s mandamus petition and appeal, both of which challenged the district

court’s order denying Amy restitution in connection with a criminal defendant’s

sentence. 

In the case underlying Amy’s mandamus petition and appeal, Doyle

Paroline (“Paroline”) pled guilty to 18 U.S.C. § 2252 for possessing 150 to 300

images of minors engaged in sexually explicit conduct. At least two images were

of Amy. Pursuant to Amy’s right to restitution under the Crime Victims’ Rights

Act, 18 U.S.C. § 3771, the Government and Amy moved the district court to

order restitution under § 2259. Amy supported this request with her

psychiatrist’s report, which itemized her future damages for specific categories

of treatment and estimated total damages nearing $3.4 million.3

The district court denied Amy restitution. Paroline, 672 F. Supp. 2d at

782. The district court held that § 2259 required the Government to prove that

by possessing images depicting Amy’s sexual abuse, Paroline proximately caused

the injuries for which she sought restitution. Id. at 791. Concluding that the

Government failed to show this causal link, the district court denied Amy

restitution. Id. at 793. Amy petitioned for mandamus, asking this court to
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4 Wright pled guilty pursuant to a plea agreement in which he generally waived his

right to appeal but reserved his right to appeal “any punishment in excess of the statutory

maximum.” Wright’s plea agreement stated that “the restitution provisions of Sections 3663

and 3663A of Title 18, United States Code will apply” and made no reference to § 2259.

During the guilty plea colloquy, the district court restated the terms of the plea agreement

regarding Wright’s appeal waiver. The district court asked Wright if he understood all the

rights he was waiving, and he responded that he did. The district court also asked Wright if

he understood that he “also may be required to reimburse any victim for the amount of his or

her loss under the Victim Restitution Law, if that term is applicable.” Wright again said he

understood. 

The Government seeks to assert the appeal waiver Wright signed only if we hold that

restitution is limited by proximate cause in all respects. It concedes, however, that Wright’s

5

direct the district court to order Paroline to pay her the full amount of the

restitution she had requested.

Over one dissent, that panel denied her relief because it was not clear or

indisputable that § 2259 mandates restitution irrespective of proximate cause.

In re Amy, 591 F.3d at 794–95. Amy sought rehearing and filed a separate

notice of appeal from the district court’s restitution order; her mandamus

petition and appeal were consolidated. See In re Amy Unknown, 636 F.3d at

192–93. The panel assigned to hear Amy’s appeal granted her rehearing

request. Id. at 193. That panel then granted mandamus and rejected a

requirement of proof of proximate cause in § 2259 because “[i]ncorporating a

proximate causation requirement where none exists is a clear and indisputable

error,” but declined to reach the question of whether crime victims such as Amy

have a right to an appeal. Id. at 193, 201. The panel remanded for the district

court’s entry of a restitution order. Id. at 201.

B

In United States v. Wright, 639 F.3d 679 (5th Cir. 2011), a separate panel

of this court heard the appeal of Michael Wright (“Wright”). Like Paroline,

Wright pled guilty to 18 U.S.C. § 2252 for possession of over 30,000 images of

child pornography, which included images of Amy’s abuse.4 The Government
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appeal waiver would not be valid ifthe en banc court holds that § 2259 lacks a proximate cause

requirement that covers all categories of losses because Wright did not waive his right to

appeal a sentence unbounded by a proximate cause limitation. Because we hold today that §

2259’s isolated “proximate result” language does not cloak all categories of losses with a

proximate cause requirement, we need not further address the appeal waiver issue. We have

repeatedly held that appeal waivers the Government does not seek to enforce are not selfenforcing and that the Government can effectively “waive the waiver.” See United States v.

Acquaye, 452 F.3d 380, 381 (5th Cir. 2006). Given the Government’s concession and our

holding on the substance of § 2259, we conclude that the Government is not seeking to enforce

the appeal waiver in this case. Accordingly, we conclude that the appeal waiver does not bar

Wright’s appeal. See id.

6

sought restitution for Amy under § 2259, supporting its request with the same

psychiatric report Amy provided in Paroline’s case. The district court awarded

Amy $529,661 in restitution, explaining that “[t]his amount was reached by

adding the estimated costs of the victim’s future treatment and counseling at

$512,681.00 and the costs of the victim’s expert witness fees at $16,980.00.”

United States v. Wright, No. 09-CR-103, at 5 (E.D. La. Dec. 16, 2009). The

district court did not explain why it awarded no restitution for the other

amounts that Amy had requested and made no reference to a proximate cause

requirement. See id. Observing that Amy had been awarded restitution in

another district court, the district court further explained that “[t]he restitution

ordered herein is concurrent with any other restitution order either already

imposed or to be imposed in the future payable to this victim.” USCA5 R.

111–112. Wright appealed to contest the restitution order. 

The Wright panel first found that the appeal waiver in Wright’s plea

agreement did notforeclose his rightto appealthe restitution order. Wright, 639

F.3d at 683. Then, applying Amy’s holding, the Wright panel concluded that

Amy was entitled to restitution but that the district court had given inadequate

reasons for the award it assessed. Id. at 685–86. The panel remanded for

further findings regarding the amount of the award. Id. at 686. The three
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7

members on the Wright panel, however, joined a special concurrence that

questioned Amy’s holding and suggested that the court rehear both cases en

banc, in part because this court was the first circuit to hold that a proximate

cause requirement does not attach to the “full amount of . . . losses” under §

2259(b)(3). See id. at 689–90, 692 (Davis, J., specially concurring).

This court held the mandates in both Amy and Wright. A majority of this

court’s members voted to rehear these opinions en banc to resolve the question

of how to award restitution under § 2259 and to address other related questions

raised by these appeals. See In re Amy Unknown & United States v. Wright, 668

F.3d 776 (5th Cir. 2012) (granting rehearing en banc).

II

In rehearing Amy and Wright en banc, we address the following issues:

(1) whether the Crime Victims’ Rights Act(“CVRA”) grants crime victims a right

to an appeal or, if not, whether this court should review Amy’s mandamus

petition under the standard this court has applied to supervisory writs; (2)

whether 18 U.S.C. § 2259 requires the Government to show a defendant’s

criminal acts proximately caused a victim’s injuries before a district court may

award restitution; and (3) whether, in light of our holding with respectto § 2259,

the district courts in Amy and Wright erred.

A

Amy petitioned for mandamus and, after this court initially denied her

relief, appealed from the district court’s restitution order. In the panel opinion

in Amy, this court granted her mandamus on rehearing under our traditional

mandamus inquiry, which this court held in In re Dean, 527 F.3d 391, 394 (5th

Cir. 2008) (per curiam), applies to appeals under the CVRA. See Amy, 636 F.3d

at 197–98. In Amy, the panel declined to decide whether the CVRA entitled her
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8

to bring a direct appeal, see id. at 194–97, even though Dean seemingly

foreclosed that argument. See Dean, 527F.3d at 394 (rejecting victims’ assertion

that the standards governing an appeal apply on CVRA review). Amy asks the

en banc court to construe the CVRA to guarantee crime victims the right of

appeal and alternatively asks the court to hear her mandamus petition under

our supervisory mandamus power, which would hold her mandamus petition to

a less onerous standard of review than Dean requires. 

1

The CVRA grants crime victims, including Amy, “[t]he right to full and

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

that crime victims, their representatives, and the Government may move the

district court to enforce that right. Id. § 3771(d)(1); see id. § 3771(e) (defining

“crime victim” as “a person directly and proximately harmed as a result of the

commission of a Federal offense.”). The CVRA further commands that “[i]n any

court proceeding involving an offense against a crime victim, the court shall

ensure that the crime victim is afforded [this right].” Id. § 3771(b)(1). Where a

district court denies a victim relief, the CVRA provides that 

[T]he 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.

Id. § 3771(d)(3); see id. § 3771(d)(5)(B) (requiring the victim to petition for

mandamus within fourteen days). The CVRA further grants the Government,

“[i]n any appeal in a criminal case,” the authority to “assert as error the district

court’s denial of any crime victim’s right in the proceeding to which the appeal
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9

relates,” id. § 3771(d)(4), and makes clear that “[n]othing in this chapter shall

be construed to impair the prosecutorial discretion of the Attorney General or

any officer under his direction.” Id. § 3771(d)(6).

Amy’s argument effectively requires us to address two questions: first,

whether the CVRA entitles crime victims to an appeal; and second, whether the

CVRA entitles crime victims’ mandamus petitions through the review standards

governing an appeal. First, we observe that the plain text of the CVRA expressly

grants crime victims only a right to mandamus relief and makes no mention of

any right of crime victims to an appeal. See 18 U.S.C. § 3771(d)(3); Dean, 527

F.3d at 394. In contrast, the CVRA grants the Government the right to

mandamus while also retaining the Government’s right to a direct appeal. Id.

§ 3771(d)(4) (allowing only the Governmentto “assert as error the district court’s

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

relates.”). In interpreting the statute, absent contrary indication, we presume

that Congress “legislated against the background of our traditional legal

concepts,” United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978), including

that crime victims have no right to appeal. See Marino v. Ortiz, 484 U.S. 301,

304 (1988) (citing United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402

(1917)) (explaining that “[t]he rule that only parties to a lawsuit, or those that

properly become parties, may appeal an adverse judgment.”). 

Amy fails to show any language in the statute that reflects Congress’

intent to depart from this principle. Instead, she protests that before the

CVRA’s enactment, this court heard appeals from nonparties with a direct

interest in aspects of criminal prosecutions and contends thatthis suggests that

the crime victims retain a similar right to appeal under the CVRA. See Amy,

636 F.3d at 195–96 (discussing United States v. Briggs, 514 F.2d 794 (5th Cir.
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5 Six of our sister circuits generally favor a reading of the statute that allows no appeal,

and no circuit has expressly granted victims the right to an appeal under the CVRA. See

United States v. Alcatel-Lucent France, SA, Nos. 11–12716, 11–12802, 2012 WL 3139014, at

*5 (11th Cir. Aug. 3, 2012); United States v. Monzel, 641 F.3d 528, 533 (D.C. Cir.), cert. denied,

Amy, Victim in Misty Child Pornography Series v. Monzel, 132 S. Ct. 756 (2011); United States

v. Aguirre–Gonzalez, 597 F.3d 46, 53–56 (1st Cir. 2010); In re Antrobus, 519 F.3d 1123,

1128–30 (10th Cir. 2008); Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006); In

re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562–63 (2d Cir. 2005); see also In re Acker, 596

F.3d 370, 373 (6th Cir. 2010) (“[W]here the [purported victim’s] direct appeal was filed at the

same time as the [CVRA] mandamus petition and raises the identical issues, there is no

additional right of appeal.”). 

Further supporting this conclusion is that under the Victim and Witness Protection Act

(“VWPA”), the CVRA’s predecessor in which restitution was optional rather than mandatory,

at least one circuit court denied victims a right to any relief because “[n]owhere in the statute

does Congress suggest that the VWPA was intended to provide victims with a private remedy

to sue or appeal restitution decisions.” United States v. Mindel, 80 F.3d 394, 397 (9th Cir.

1996). This same logic extends to limit the right of crime victims under the CVRA to only the

10

1975); United States v. Chagra, 701 F.2d 354 (5th Cir. 1983)). The cases Amy

cites, however, are unconvincing. They allowed non-parties to appeal discrete

pre-trial issues with constitutional implications, which were unrelated to the

merits of the criminal cases from which they arose. See Briggs, 514 F.2d at 799

(holding that persons named as unindicted co-conspirators in an indictment had

standing to challenge the power of a grand jury to charge them with criminal

conduct without indicting them); Chagra, 701 F.2d at 360 (allowing newspapers

and a reporter to appeal an order restricting their access to a pretrial bail

reduction hearing). These cases do not stand for the proposition that this court

has allowed victims any post-judgment right of appeal and, moreover, do not

support the inference that Congress drafted the CVRA with the understanding

that crime victims had any right to an appeal. Because nothing in the CVRA

suggests that Congress intended to grant crime victims the right to an appeal

or otherwise vary the historical rule that crime victims do not have the right of

appeal, we conclude that the CVRA grants crime victims only mandamus

review.5
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mandamus relief that the statute clearly expresses. See id.

The cases Amy relies on, moreover, further disfavor allowing a § 1291 appeal. Any

persuasive force that In re Siler, 571 F.3d 604, 608 (6th Cir. 2009) (allowing crime victims to

appeal under § 1291 when they sought the use of a presentencing report in a subsequent civil

suit), may have is undercut by the Sixth’s Circuit later decision not to extend a right of appeal

to a crime victim who simultaneously petitioned for mandamus relief. See In re Acker, 596

F.3d 370, 373 (6th Cir. 2010). Likewise, the Third Circuit’s decision allowing a crime victim

a § 1291 appeal, without any analysis, in United States v. Kones, 77 F.3d 66, 68 (3d Cir. 1996),

also fails to convince us that allowing crime victims a § 1291 appeal is proper.

11

Next, we consider whether the CVRA nonetheless requires appellate

courts to apply the standard of review governing a direct criminal appeal to

mandamus petitions, and conclude it does not. When assessing the meaning of

the term “mandamus” in the CVRA, we presume that this “statutory term . . .

ha[s] its common-law meaning,” absent contrary indication. Taylor v. United

States, 495 U.S. 575, 592 (1990). The Supreme Court has explained that “[t]he

remedy of mandamus is a drastic one, to be invoked only in extraordinary

situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); accord Cheney v.

U.S. Dist. Court, 542 U.S. 367, 380 (2004). “[T]he writ has traditionally been

used in the federal courts only . . . to compel it to exercise its authority when it

is its duty to do so.” Kerr, 426 U.S. at 402 (quotation marks omitted). “[O]nly

exceptional circumstances amounting to a judicial usurpation of power will

justify the invocation of this extraordinary remedy.” Id. (quotation marks

omitted). Mandamus traditionally “is not to be used as a substitute for an

appeal, or to control the decision of the trial court in discretionary matters.”

Plekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977). Issuance

of the writ is largely a matter of discretion with the court to which the petition

is addressed. See Schlagenhauf v. Holder, 379 U.S. 104, 112 n.8 (1964). 

Certain aspects of the CVRA convince us that Congress intended

mandamus in its traditional sense when it selected the word “mandamus.” See
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Taylor, 495 U.S. at 592. Reading the statute’s provisions together, the CVRA

seems to intentionally limit victims’ right to review as an extraordinary remedy

because it authorizes review only where a district court fails to fulfill a statutory

duty; the statute does not extend victims’ right to review to situations where a

district court acts on a discretionary matter. See Kerr, 426 U.S. at 402. To

explain, the CVRA lists eight rights that it ensures crime victims, including the

right to restitution. 18 U.S.C. § 3771(a)(1)–(8). The restrictive statement, “A

crime victim has the following rights,” precedes the list of those rights and

supports the conclusion that the CVRA’s grant of rights is exclusive. Id. §

3771(a). And only where the district court denies a motion seeking to assert one

of those rights does the CVRA allow a victim to seek the review of an appellate

court. See id. § 3771(d)(3). This limitation suggests that in granting relief, the

district court retains discretion to select the appropriate means to ensure

victims’ rights, and that victims may only properly seek appellate intervention

where the district court clearly fails to “exercise its authority when it is its duty

to do so.” See Kerr, 426 U.S. at 402; see also Plekowski, 557 F.2d at 1220 (“The

remedy of mandamus . . . is not to be used . . . to control the decision of the trial

court in discretionary matters.”). Under this reading, only the Government

would retain a right to appeal even seemingly discretionary actions, see 18

U.S.C. § 3771(d)(4), and could elect to appeal the district court’s order to the

extent it exercises its own prosecutorial discretion to do so. See id. § 3771(d)(6).

If we were to instead read the CVRA as extending a right of appeal to victims,

we would expand the rights granted to crime victims and simultaneously erode

the CVRA’s attempt to preserve the Government’s discretion. See id. A reading

of the statute that limits victims’ appellate review to the traditional mandamus

inquiry thus respects both the CVRA’s preservation ofthe Government’s and the
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6 Amy nevertheless insists that the CVRA’s requirements that the courts of appeals

“take up and decide” a petition and “ensure that the crime victim is afforded” all his or her

rights in a court proceeding support recognizing victims’ right to an appeal and disfavor an

interpretation that would provide for traditional mandamus review, which is typically

discretionary. See 18 U.S.C. §§ 3771(b)(1), (d)(3). The requirement that appellate courts “take

up and decide” a petition, however, relates directly to the short time period in which Congress

directs appellate courts to act; this short time period, as we have already explained, favors,

rather than opposes, the use of mandamus. See supra. Similarly, Amy fails to note that the

command that federal courts “ensure that the crime victim is afforded” certain rights falls

within a section labeled “In general.” See id. § 3771(b)(1). Placed in context, this language

merely reflects Congress’ intention to make plain that federal courts must guard the specific,

but necessarily limited, rights spelled out in the CVRA through the processes prescribed in its

other subsections. This language does not suggest that the grant of mandamus in this context

is not discretionary. Amy’s arguments are unavailing. 

Only two circuits support Amy’s position that she is entitled to something more closely

resembling direct appellate standards of review. With little analysis, the Second Circuit has

concluded an abuse of discretion standard should govern CVRA mandamus petitions. See In

re W.R. Huff, 409 F.3d at 562–63. That court divined a relaxed standard from the express

terms of the statute and reasoned only that “[i]t is clear . . . that a petitioner seeking relief

pursuant to the mandamus provision set forth in § 3771(d)(3) need not overcome the hurdles

typically faced by a petitioner seeking review of a district court determination through a writ

of mandamus.” Id. at 562–63. The lack of reasoning accompanying the Second Circuit’s use

of a relaxed standard of review fails to convince us that anything other than traditional

mandamus standards should govern our review of CVRA petitions. 

The Ninth Circuit also has provided for relaxed review, focusing on legal error in

reviewing a crime victim’s mandamus petition under the CVRA. To justify this relaxed review,

13

district court’s traditional discretion while safeguarding the limited rights the

CVRA grants. 

The very short timeline in which appellate courts must act, and the fact

that a single circuit judge may rule on a petition, confirm the conclusion that

Congress intended to limit crime victims’ appellate relief under the CVRA to

traditional mandamus review. See 18 U.S.C. § 3771(d)(3). These requirements

reflect that appellate courts must grant relief quickly, but rarely, as “a drastic

remedy generally reserved for really ‘extraordinary’ cases.” In re E.E.O.C., 709

F.2d 392, 394 (5th Cir. 1983) (citing Kerr, 426 U.S. at 402). 

Amy has failed to show that Congress intended to grant crime victims

anything other than traditional mandamus relief under the CVRA.6 While, as
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the Ninth Circuit emphasized that “[t]he CVRA explicitly gives victims aggrieved by a district

court’s order the right to petition for review by writ of mandamus, provides for expedited

review of such a petition, allows a single judge to make a decision thereon, and requires a

reasoned decision in case the writ is denied.” Kenna, 435 F.3d at 1017. But a later decision

suggests that the Ninth Circuit’s interpretation in Kenna was influenced by the facts of that

case and a desire to reach a question of law that its traditional mandamus inquiry would not

have allowed; in that later case, the Ninth Circuit explained that it applies its normal test to

CVRA mandamus petitions, and merely emphasizes the question of legal error in assessing a

crime victim’s right to relief. See In re Andrich, 668 F.3d 1050, 1051 (9th Cir. 2011) (per

curiam). 

While Amy asserts that two additional circuits favor her position, those courts have not

clearly accepted her position, and it is unclear that they would do so if presented with the

opportunity to fully analyze the legal issues this question presents. See In reStewart, 552 F.3d

1285 (11th Cir. 2008) (granting mandamus on question of whether a person was a crime victim

who could participate in district court proceedings without reviewing traditional mandamus

factors); In re Walsh, 229 F. App’x 58, 60–61 (3d Cir. 2007) (in dicta, agreeing with the Second

and Ninth Circuits that “mandamus relief is available under a different, and less demanding,

standard under 18 U.S.C. § 3771 in the appropriate circumstances.”).

14

Amy insists, it may be more difficult for a crime victim to enforce rights through

mandamus than appeal, this limitation reflects the express language of the

statute and honors the common law tradition in place when the CVRA was

drafted.

2

Our conclusion that the CVRA does not provide crime victims with

appellate review does not foreclose Amy’s somewhat different request that we

apply our supervisory mandamus power of review to her mandamus petition,

which would lower the hurdles to relief under mandamus. See In re McBryde,

117 F.3d 208, 223 (5th Cir. 1997) (acknowledging that “courts of appeals have

possessed the power to issue supervisory writs of mandamus in order to prevent

practices posing severe threats to the proper functioning ofthe judicial process”);

In re E.E.O.C., 709 F.2d at 395 (in allowing a supervisory writ to proceed as a

one-time-only device, this court advised it would only grant the writ if “there is

‘usurpation of judicial power’ or a clear abuse of discretion” and the movant
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15

showed it had a clear and indisputable right to a writ) (quoting Schlagenhauf,

379 U.S. at 110). Even so, we need not resolve this question. Our traditional

inquiry suffices to afford Amy the relief she requests. See IV-A infra. Cf.

Aguirre–Gonzalez, 597 F.3d at 53–56 (declining to settle question of standard of

review because neither the traditional mandamus standard nor a more relaxed

standard would afford relief in the circumstances of that case).

Because we hold thatthe CVRA entitles Amy to only mandamus relief, we

dismiss her appeal. Under our traditional mandamus inquiry, we will grant

Amy’s requested mandamus only if (1) she has no other adequate means to

attain the desired relief; (2) she has demonstrated a clear and indisputable right

to the issuance of a writ; and (3) in the exercise of our discretion, we are satisfied

that the writ is appropriate. See Dean, 527 F.3d at 394. 

B

Wright appeals from the district court’s restitution order. This court

reviews the legality of the restitution order de novo. United States v. Arledge,

553 F.3d 881, 897 (5th Cir. 2008). If the restitution order is legally permitted,

we then review the amount of the order for an abuse of discretion. Id.; United

States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009).

III

To resolve Amy’s mandamus petition and Wright’s appeal, we must first

ascertain the level of proof required to award restitution to Amy and crime

victims like her under 18 U.S.C. § 2259. The parties’ dispute turns on the

interpretation and effect of the words “proximate result” in § 2259(b)(3)(F). 

A

Our analysis again begins with the text of the statute. See Watt, 451 U.S.

at 265; In re Rogers, 513 F.3d 212, 225 (5th Cir. 2008). If § 2259’s language is
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16

plain, our “sole function” is to “enforce it according to its terms” so long as “the

disposition required by the text is not absurd.” Lamie v. U.S. Trustee, 540 U.S.

526, 534 (2004) (internal quotation marks omitted); see also Bates v. United

States, 522 U.S. 23, 29 (1997) (holding that courts “ordinarily” should “resist

reading words or elements into a statute that do not appear on its face.”). The

Supreme Court has explained that “[s]tatutory construction ‘is a holistic

endeavor.’” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.

439, 455 (1993) (quoting United Savings Ass’n of Tex. v. Timbers of Inwood

Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)). “This Court naturally does not

review congressional enactments as a panel of grammarians; but neither do we

regard ordinary principles of English prose as irrelevant to a construction of

those enactments.” Flora v. United States, 362 U.S. 145, 150 (1960). Although

“the meaning of a statute will typically heed the commands of its punctuation[,]

. . . a purported plain-meaning analysis based only on punctuation is necessarily

incomplete.” Bank of Or., 508 U.S. at 454. “[A]t a minimum,” our analysis “must

account for a statute’s full text, language as well as punctuation, structure, and

subject matter.” Id. at 455.

Only after we apply principles of statutory construction, including the

canons of construction, and conclude that the statute is ambiguous, may we

consult legislative history. Carrieri v. Jobs.com, Inc., 393 F.3d 508, 518–19 (5th

Cir. 2004). For statutory language to be ambiguous, however, it must be

susceptible to more than one reasonable interpretation or more than one

accepted meaning. Id. at 519. Where “the words of a statute are unambiguous,

then, this first canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 254 (1992) (quoting Rubin v. United States, 449

U.S. 424, 430 (1981)).
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7 A “victim” is an “individual harmed as a result of a commission of a crime under this

chapter.” Id. § 2259(c). 

17

The language of 18 U.S.C. § 2259 reflects a broad restitutionary purpose.

See United States v. Laney, 189 F.3d 954, 966 (9th Cir. 1999) (“Section 2259 is

phrased in generous terms, in order to compensate the victims of sexual abuse

for the care required to address the long term effects of their abuse.”); United

States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (“Congress [in § 2259]

mandated broad restitution for a minor victim.”). Section 2259(a) mandates that

district courts “shall order restitution for any offense under this chapter,”

including the offense to which Paroline and Wright pled guilty, 18 U.S.C. § 2252.

Section 2259(b)(1) specifies that a restitution order “shall direct the defendant

to pay the victim . . . the full amount of the victim’s losses.”7

Section 2259(b)(3) defines the term “the full amount ofthe victim’s losses,”

contained in § 2259(b)(1), as

[A]ny costs incurred by the victim for– 

(A) medical services relating to physical, psychiatric, or

psychological care; 

(B) physical and occupationaltherapy or rehabilitation;

(C) necessary transportation, temporary housing, and

child care expenses; 

(D) lost income; 

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

(F) any other losses suffered by the victim as a

proximate result of the offense. 

Section 2259(b)(4) reinforces that “[t]he issuance of a restitution order

under this section is mandatory,”id. § 2259(b)(4)(A), and instructs that“[a] court

may not decline to issue an order under this section because of–(i) the economic

circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to,

receive compensation for his or her injuries from the proceeds of insurance or
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18

any other source.” Id. § 2259(b)(4)(B). To guide the district courts in awarding

restitution, § 2259(b)(2) instructs courts to issue and enforce restitution orders

“in accordance with section 3664 and in the same manner as an order under

3663A.” 

B

The district court in Paroline rejected Amy’s argument that § 2259

requires an award of “the full amount of [her] losses.” Instead, resorting to the

Supreme Court’s decision in Porto Rico Railway, Light & Power Co. v. Mor, 253

U.S. 345, 348 (1920), which explained that “[w]hen several words are followed

by a clause which is applicable as much to the first and other words as to the

last, the natural construction of the language demands that the clause be read

as applicable to all,” the district court extended the “proximate result” language

contained in § 2259(b)(3)(F) to apply to the losses described in subsections (A)

through (E). See Paroline, 672 F. Supp. 2d at 788 (also citing Fed. Mar. Comm’n

v. Seatrain Lines, Inc., 411 U.S. 726, 734 (1973)). In construing the statute, the

district court expressed its concern that “a restitution order under section 2259

thatis notlimited to losses proximately caused by the defendant’s conduct would

under most facts, including these, violate the Eighth Amendment,” id. at 789,

and that an alternative “interpretation would be plainly inconsistent with how

the principles of restitution and causation have historically been applied.” Id.

at 790. In reversing the district court’s holding, the Amy panel rejected a

generalized proximate cause requirement and stressed that the causation

requirement in the definition of “victim,” together with § 3664’s mechanism for

joint and several liability, surmounts any Eighth Amendment concerns. See

Amy, 636 F.3d at 200–01.
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Unlike the district court in Paroline, the Wright district court seemed to

accept Amy’s argument to a limited degree, as it awarded all of the restitution

she requested for her future treatment and counseling, and the costs of her

expert witness fees. Although the Wright panel accepted Amy’s holding as

binding precedent in reviewing the district court’s restitution award, Wright’s

special concurrence, tracing the reasoning of the district court in Amy and

challenging the panel’s decision not to limit § 2259 to damages proximately

caused by a defendant’s criminal actions, presaged this en banc rehearing. See

Wright, 639 F.3d at 686–89 (Davis, J., specially concurring).

In this en banc rehearing, Amy maintains that § 2259 is a mandatory

statute requiring district courts to award full restitution to victims of child

pornography. In her view, the plain language of the statute dictates that the

proximate result language in § 2259(b)(3)(F) is limited to that category of losses

and does not apply to the categories of losses described in § 2259(b)(3)(A)–(E).

The Government contends that § 2259(b)(3) conditions all of a victim’s

recoverable losses on a showing that those losses proximately resulted from the

offense. Drawing on Porto Rico Railway, the Government asserts that the

statutory text reflects Congress’ intent to condition all recoverable losses on a

showing of proximate cause. Without citing to precedent, the Government urges

us “to presume that Congress adhered to the usual balance in the law of

remedies: to hold defendants fully accountable for the losses associated with

their conduct but in a manner that respects the deeply-rooted principle of

proximate causation.” The Government further asserts that there is nothing

absurd in the conclusion that Congress intended this limiting principle to apply

to all categories of losses. Invoking a recent Supreme Court case analyzing civil

tort liability under the Federal Employers’ Liability Act in support of this

proposition, the Government reasons that “the very purpose of a proximate-
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8 Of course, we cannot consult these materials unless we conclude that § 2259’s text is

ambiguous. See Carrieri, 393 F.3d at 518–19. Even if we were to consult these materials, they

are inconclusive at best.

20

cause limitation is to prevent infinite liability.” See CSX Transp., Inc., v.

McBride, 131 S. Ct. 2630, 2642 (2011). The Government advises the court not

to delve into legislative materials and also stresses that seven circuits have

rejected Amy’s reading of the statute. 

Paroline similarly construes the “proximate result” language in the statute

and relies on the construction of other restitution statutes to support his

position. Both Paroline and Wright draw on legislative materials to assert that

in drafting § 2259, Congress intended to incorporate a proximate cause

requirement.8

C

1

Our plain reading of § 2259 leads us to the following conclusion: Once a

district court determines that a person is a victim,thatis, an “individual harmed

as a result of a commission of a crime” under the chapter that relates to the

sexual exploitation and abuse of children, § 2259 requires the district court to

order restitution for that victim. See 18 U.S.C. § 2259(a),(b)(4)(A),(c). The

restitution order that follows must encompass “the full amount of the victim’s

losses.” Id. § 2259(b)(1). Those losses include five categories of specific

losses—medical services related to physical, psychiatric, or psychological care;

physical and occupational therapy or rehabilitation; necessary transportation,

temporary housing, and childcare expenses; lost income; and attorney’s fees and

costs—and one category of “other losses suffered by the victim as a proximate

result of the offense.” Id. § 2259(b)(3). The rule of the last antecedent, recently

applied by the Supreme Court in Barnhart v. Thomas, 540 U.S. 20, 26 (2003),
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instructs that “a limiting clause or phrase,” such as the “proximate result”

phrase in § 2259(b)(3)(F), “should ordinarily be read as modifying only the noun

or phrase that it immediately follows.” “[T]his rule is not an absolute and can

assuredly be overcome by other indicia of meaning,” but “construing a statute in

accord with the rule is ‘quite sensible as a matter of grammar.’” Id. (quoting

Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330 (1993)); accord ANTONIN SCALIA

& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 144

(2012) (“This rule is the legal expression of a commonsense principle of

grammar”). 

The structure and language of § 2259(b)(3) limit the phrase “suffered by

the victim as a proximate result of the offense” in § 2259(b)(3)(F) to the

miscellaneous “other losses” contained in that subsection. We see no “other

indicia of meaning” in the statute to suggest that the rule of the last antecedent

does not apply here. See id. Despite the clear terms of the statute, other courts

and the parties before us raise arguments in favor of a generalized proximate

cause requirement based on (a) canons of statutory construction, (b) traditional

causation principles, and (c) possible absurd results. We address—and

dismiss—each in turn.

a

First, the Government, Paroline, Wright, and Judge Davis’s dissenting

opinion press the importance of Porto Rico Railway and other caselaw relied on

by the district court. As did the Amy panel, however, we doubt Porto Rico

Railway’s applicability here. Porto Rico Railway concerned the following

statute:“Said District Court shall have jurisdiction of all controversies where all

ofthe parties on either side ofthe controversy are citizens or subjects of a foreign

state or states, or citizens of a state,territory, or district ofthe United States not

domiciled in Porto Rico . . . .” Porto Rico Ry., 253 U.S. at 346. The Supreme
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Court read the words, “not domiciled in Porto Rico,” to apply equally to “citizens

or subjects of a foreign state or states” and “citizens of a state, territory, or

district of the United States.” Id. at 348. The Supreme Court explained,“When

several words are followed by a clause which is applicable as much to the first

and other words as to the last,the natural construction ofthe language demands

that the clause be read as applicable to all.” Id. at 348. 

Deprived of its context, Porto Rico Railway’s rule can be contorted to

support the statutory interpretation urged by the Government and apply the

“proximate result” language in § 2259(b)(3)(F) to the five categories of loss that

precede it. But applying that rule here to require generalized proximate cause

would disregard that the list in Porto Rico Railway’s statute is significantly

different than the one central to this appeal. The statute analyzed in Porto Rico

Railway featured a long sentence, unbroken by numbers, letters, or bullets, with

two complex noun phrases sandwiching the conjunction “or,” with the modifier

“domiciled in Porto Rico” following the conjoined phrases. The structure of the

sentence required the reading the Supreme Court gave it; the phrase “domiciled

in Porto Rico” modified the nouns at the head of the two phrases, “citizens or

subjects” and “citizens.” The Supreme Court expressed its concern that a

different construction would have left the reader with a fragmented phrase,

which would be overly broad in application, and which, in turn, would have

failed to satisfy the statute’s overarching purpose to curtail federal courts’

jurisdiction. See Porto Rico Ry., 253 U.S. at 348. 

Section 2259, in contrast, begins with an introductory phrase composed of

a noun and verb (“‘full amount of the victim’s losses’ includes any costs incurred

by the victim for—”) that feeds into a list of six items, each of which are

independent objects that complete the phrase. Only the last of these items

contains the limiting language “proximate result.” A double-dash opens the list,
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9 Further, Porto Rico Railway also commands that where the statute in question

“manifests a general purpose . . . [and] the application of the clause were doubtful, we should

so construe the provision as to effectuate the general purpose of Congress.” 253 U.S. at 348.

The grammar of § 2259, viewed in light of § 2259’s broad restitutionary purpose as expressed

by its plain terms, confirms that our reading is correct. See Crandon, 173 F.3d at 126

(“Congress [in § 2259] mandated broad restitution for a minor victim.”); Laney, 189 F.3d at 966

(“Section 2259 is phrased in generous terms, in order to compensate the victims of sexual abuse

for the care required to address the long term effects of their abuse.”). 

23

and semi-colons separate each of its elements, leaving § 2259(b)(3) with a divided

grammatical structure that does not resemble the statute in Porto Rico Railway,

with its flowing sentence that lacks any distinct separations. Of course, we do

not sit “as a panel of grammarians,” Flora, 362 U.S. at 150, but we cannot ignore

that “the meaning of a statute will typically heed the commands of its

punctuation.” Bank of Or., 508 U.S. at 454. The structural and grammatical

differences between § 2259 and the statute in Porto Rico Railway forcefully

counsel against applying Porto Rico Railway to the current statute to reach the

Paroline district court’s reading.9

Seatrain, the other case relied on by the district court, is similarly

inapplicable. See Seatrain, 411 U.S. at 726. Seatrain analyzed a federal

antitrust statute that included a seven-category list. Id. at 732. All items on the

list butthe third referred to ongoing activity;the seventh category was a catchall

category phrased as “or in any manner providing for an exclusive, preferential,

or cooperative working arrangement.” Id. at 732–33. The Government urged

the Supreme Court to construe this third category as concerning a one-time

activity. Id. at 732. The Court rejected that argument because a broad reading

of the statute would conflict with the legal principle that antitrust laws are

strictly construed. Id. at 733. To aid in a narrow construction of the statute, the

Court applied the rule of statutory construction that “[catchall] clauses are to be

read as bringing within a statute categories similar in type to those specifically
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24

enumerated” and concluded that the last catchall phrase indicated that Congress

intended allthe activities to penalize only ongoing antitrust activities. Id. at 734

(citing 2 J. SUTHERLAND, STATUTES & STATUTORY CONSTRUCTION § 4908 et seq.

(3d ed. 1943)). Here, we do not face a statutory scheme that requires narrow

construction. See Crandon, 173 F.3d at 126; Laney, 189 F.3d at 966. Seatrain’s

weight in interpreting § 2259 is questionable at best.

Seatrain’s rule is at odds with the rule of last antecedent on which we rely;

the rule of last antecedent, moreover, provides a reading faithful to § 2259’s

broad restitutionary purpose. To illustrate, in Barnhart v. Thomas, the Supreme

Court reviewed an agency’s interpretation of a statute that states 

An individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in

the national economy. 

Barnhart, 540 U.S. at 23 (emphases added). Applying the rule of the last

antecedent,the Supreme Court held thatthe words “which exists in the national

economy” referred only to the noun “any other kind of substantial gainful work”

and not to the noun “his previous work.” Id. at 24–27. In support of this

holding, the Supreme Court reasoned that the words “any other” in the second

phrase did not show the “contrary intention” necessary to overcome the rule of

the last antecedent to apply that phrase to the first. Id. at 27–28.

The Supreme Court also applied the rule of last antecedent in Jama v.

Immigration & Customs Enforcement, 543 U.S. 335 (2005) to a statute that

included a complete sentence that fed into a seven-category list. Each category

on the list was punctuated with a period; only the last category on the list
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10 In Barnhart, Justice Scalia provided an example of application ofthis rule in ordinary

life that reveals the commonsensical aspect of the error in applying the proximate result

language of § 2259(b)(3)(F) to the five categories of losses that precede it:

Consider, for example, the case of parents who, before leaving

their teenage son alone in the house for the weekend, warn him,

“You will be punished if you throw a party or engage in any other

activity that damages the house.” If the son nevertheless throws

a party and is caught, he should hardly be able to avoid

punishment by arguing that the house was not damaged. The

parents proscribed (1) a party, and (2) any other activity that

damages the house. As far as appears from what they said, their

reasons for prohibiting the home-alone party may have had

nothing to do with damage to the house-for instance, the risk that

underage drinking or sexual activity would occur. And even if

their only concern was to prevent damage, it does not follow from

the fact that the same interest underlay both the specific and the

general prohibition that proof of impairment of that interest is

required for both. The parents, foreseeing that assessment of

whether an activity had in fact “damaged” the house could be

disputed by their son, might have wished to preclude all

argument by specifying and categorically prohibiting the one

activity-hosting a party-that was most likely to cause damage

and most likely to occur.

450 U.S. at 27–28.

25

contained a limiting clause. Id. at 340. Drawing on the grammatical structure

of the list, the Supreme Court concluded that applying the limiting clause to the

other items in the list “stretches the modifier too far.”10 Id. at 343. 

As we have already explained, the grammatical structure of § 2259(b)(3)

reflects the intent to read each category of loss separate from the one that

preceded it and limit the application of the “proximate result” language in §

2259(b)(3)(F). Comparing the Supreme Court’s more recent articulations of the

rule of the last antecedent in Barnhart and Jama to the older rules of statutory

construction expressed in Porto Rico Railway and Seatrain confirms that

application of the rule of the last antecedent to limit the proximate result

language to the subsection in which it is contained makes more sense here. See
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11 These circuits, whose approach we discuss later in this opinion, nevertheless inject

the statute with a proximate cause requirement through alternative means. See Monzel, 641

F.3d at 535; Aumais, 656 F.3d at 153. 

12 This disagreement does not mean that our plain-meaning analysis is fraught with

any ambiguity. This court considers a statute ambiguous when a statute is subject to more

than one reasonable interpretation or more than one accepted meaning. See Carrieri, 393 F.3d

at 518–19. Even though we choose a course that differs from that of our sister circuits, a

division of judicial authority is not enough to render a statute ambiguous. See Reno v. Koray,

515 U.S. 50, 64–65 (1995) (discussing this principle in context of rule of lenity). Any “seeming

agreement on a standard [in our sister circuits] suggests more harmony than there is.” United

States v. Kearney, 672 F.3d 81, 96 (1st Cir. 2012). The First Circuit has correctly observed that

the various circuits have applied a proximate cause test to similar, if not identical facts, yet

reached differing outcomes that “cannot be entirely explained by differences in the facts of

record.” See id. Compare Monzel, 641 F.3d at 537–40 (concluding that proximate cause shown

but remanding to determine the amount of harm so caused) and McDaniel, 631 F.3d at 1209

(holding that the district court did not clearly err in finding proximate cause) with McGarity,

669 F.3d at 1267–70 (concluding that proximate cause was not established), Aumais, 656 F.3d

at 154–55 (same), and Kennedy, 643 F.3d at 1263–65 (same). 

26

id. at 26. Applying the proximate result language of § 2259(b)(3)(F) to the

categories that precede it would “stretch[]the modifier too far” and disregard the

structure of § 2259(b)(3) as written. Jama, 543 U.S. at 343. 

At least three circuits agree that under rules of statutory construction, we

cannot read the “proximate result”language in § 2259(b)(3)(F) as applying to the

categories of losses in § 2259(b)(3)(A)–(E).11 See United States v. Burgess, 684

F.3d 445, 456–57 (4th Cir. 2012); United States v. Aumais, 656 F.3d 147, 153 (2d

Cir. 2011); United States v. Monzel, 641 F.3d 528, 535 (D.C. Cir.), cert. denied,

Amy, Victim in Misty Child Pornography Series v. Monzel, 132 S.Ct. 756 (2011).

But we do notignore that other circuits have used tools of statutory construction

to conclude that the proximate result language in § 2259(b)(3)(F) applies to the

five categories of loss that preceded it.12 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). These circuits, however, reached this conclusion for reasons we do

not find compelling. The Eleventh Circuit, for example, applied Porto Rico
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13 The dissenting opinion authored by Judge Davis criticizes the majority analysis’s

inconsistency with Porto Rico Railway. Like the Eleventh Circuit, however, Judge Davis’s

dissent fails to properly account for the statute in that opinion and § 2259’s significantly

differing contexts. Like the Ninth Circuit, this dissenting opinion attempts to cloak the entire

statutewitha proximate causation requirement withonly scant andscatteredcausallanguage

as support; the dissenting opinion also resorts to language that applies to the procedures with

which restitution is issued and enforced within § 3664 to improperly bolster its position. While

making the same errors as our sister circuits, the dissenting opinion does not explain why the

rule of last antecedent does not apply. Its position is ultimately unpersuasive.

Judge Southwick’s dissenting opinion does not agree with Judge Davis’s analysis, but

it would similarly resort to the language of § 3664 and § 3663A to require proximate causation.

The dissenting opinions are correctthat § 2259 directs that “[a]n order of restitution under this

section shall be issued and enforced in accordance with section 3664 in the same manner as

an order under section 3663A.” Judge Southwick’s dissenting opinion construes this language

to require application of § 3663A’s definition of victim as “a person directly and proximately

harmed as a result of the commission of an offense for which restitution may be ordered.”

Congress’ directive to rely on the procedures guiding issuance and enforcement of a restitution

order, however, does not require us to rely on the substantive definition of “victim” contained

in a separate statute when § 2259 has already supplied courts with a different, broader

definition of victim.

Lastly, Judge Davis’s dissenting opinion claims that under our holding, “if Amy were

injured in an automobile accident on the way to a counseling session, those damages would be

27

Railway’s rule without accounting for the Supreme Court’s application of it. See

§ IV-C-1-a supra (exposing the faultin relying on the rule of Porto Rico Railway).

The Ninth Circuit, moreover, read the “as a result of” language in § 2259’s

definition of victim together with the “proximate result” language in §

2259(b)(3)(F) to infuse all of § 2259(b)(3) with a proximate cause requirement.

See Laney, 189 F.3d at 965. Without more in the statute to support that

analysis, we cannot accept the Ninth Circuit’s conclusion. To do so would

contradict the statute’s plain terms and be tantamount to judicial redrafting.

See United States v. Naftalin, 441 U.S. 768, 773 (1979) (“The short answer is

that Congress did not write the statute that way.”). The rules of statutory

construction, properly applied, cannot be used to extend the proximate result

language contained in § 2259(b)(3)(F) to the categories of losses preceding it.13
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included in a restitution award.” This is not what the majority opinion suggests. Rather, the

majority refuses to artificially divide responsibility for a crime victim’s losses in circumstances

like these here, where multiple defendants are realistically responsible for the victim’s

indivisible injury. While the dissent attempts to correct this error by adopting a collective

causation theory, in doing so, it resorts to an unnecessary source in order to graft upon the

clearly-worded statute a causation requirement. Ultimately the dissenting opinion’s errors

arises from its confusion of the “victim” inquiry which is antecedent to the calculation of “total

losses.”

28

b

Next, we consider the Government’s assertion that principles of tort

liability limit the award of restitution under § 2259 to losses proximately caused

by a defendant’s criminal actions. At least three of our sister circuits have

accepted this view and derived a proximate cause requirement not from “the

catch-all provision of § 2259(b)(3)(F), but rather [from] traditional principles of

tort and criminal law and [from] § 2259(c)’s definition of ‘victim’ as an individual

harmed ‘as a result’ of the defendant’s offense.” Monzel, 641 F.3d at 535; accord

Burgess, 2012 WL 2821069, at *10; Aumais, 656 F.3d at 153; see Kearney, 672

F.3d at 96–97 (“Itis clear to us that Congress intended some causal link between

the losses and the offense to support the mandated restitution.”); United States

v. Evers, 669 F.3d 645, 659 (6th Cir. 2012) (adopting a proximate cause

requirement but declining to decide between the two approaches of our sister

circuits). 

In United States v. Monzel, a case that has served as a springboard for

other circuits evaluating § 2259,the D.C. Circuit explained that“[i]tis a bedrock

rule of both tort and criminal law that a defendant is only liable for harms he

proximately caused,” and “a restitution statute [presumably] incorporates the

traditional requirement of proximate cause unless there is good reason to think

Congress intended the requirement not to apply.” Monzel, 641 F.3d at 535–36

(footnote omitted) (citing WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4,
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at 464, 471 (2d ed. 2003). The D.C. court posited that “[a]lthough § 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,” see id. at 536

n.5, and found nothing in the text of § 2259 indicating Congress’ intent to

eliminate “the ordinary requirement of proximate cause.” Id. at 536. Rather,

“[b]y defining ‘victim’ as a person harmed ‘as a result of’ the defendant’s

offense,’” the court inferred that “the statute invokes the standard rule that a

defendant is liable only for harms that he proximately caused.” Id. The D.C.

Circuit worried that without such a limitation,“liability would attach to all sorts

of injuries a defendant mightindirectly cause, no matter how ‘remote’ or tenuous

the causal connection.” Id. at 537.

The D.C. Circuit rejected the view expressed by the In re Amy Unknown

panel, explaining that “[h]ad Congress meant to abrogate the traditional

requirement for everything but the catch-all, surely it would have found a

clearer way of doing so.” Id. at 536–37. The D.C. Circuit criticized this court’s

decision in Amy because “a ‘general’ causation requirement without a subsidiary

proximate causation requirement is hardly a requirement at all”; “[s]o long as

the victim’s injury would not have occurred but for the defendant’s offense, the

defendant would be liable for the injury.” Id. at 537 n.8. The circuits that have

adopted the D.C. Circuit’s view have pursued a similar line of reasoning. We do

not accept this reasoning, however, and refuse to inject the statute with a

proximate cause requirement based on traditional principles of liability. 

The Supreme Court has explained that we “ordinarily” should “resist

reading words or elements into a statute that do not appear on its face.” Bates,

522 U.S. at 29. But the Supreme Court has also explained that the absence of

certain language in a statute does not necessarily mean that Congress intended
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30

courts to disregard traditional background principles. See U.S. Gypsum Co., 438

U.S. at 437. To illustrate, with respect to the question of intent in the criminal

provisions of the Sherman Act, the Supreme Court has explained that

“[M]ere omission . . . of intent [in the statute] will not

be construed as eliminating that element from the

crimes denounced”; instead Congress will be presumed

to have legislated against the background of our

traditional legal concepts which render intent a critical

factor, and “absence of contrary direction [will] be taken

as satisfaction with widely accepted definitions, not as

a departure from them.”

Id. at 437 (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). In

interpreting the omission of intent in a different statute, the Supreme Court

cautioned that “far more than the simple omission of the appropriate phrase

from the statutory definition [of the offense] is necessary to justify dispensing

with” a mens rea requirement. Liparota v. United States, 471 U.S. 419, 426

(1985) (quoting U.S. Gypsum, 438 U.S. at 438); see id. (“[T]he failure of Congress

explicitly and unambiguously to indicate whether mens rea is required does not

signal a departure from this background assumption of our criminal law.”).

With these principles in mind, the D.C. Circuit’s analysis, which infuses

§ 2259 with a generalized proximate cause requirement, see Monzel, 641 F.3d at

535, could comport with the Supreme Court’s interpretative guidance—only if

§ 2259 were naked of causal limitations. See U.S. Gypsum Co., 438 U.S. at 437.

But it is not. In assessing whether Congress intended a broad proximate cause

limitation, we cannot ignore that § 2259 expresses causal requirements, yet

isolates them to two discrete points: the definition of victim as an “individual

harmed as a result of a commission of a crime,” and the limitation of “any other

losses” to those that are the “proximate result of the offense.” See 18 U.S.C. §

2259(b),(c) (emphases added). Had Congress omitted all causal language and not
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14 In stark contrast, other restitution statutes contain more forceful causation

requirements that are lacking in § 2259. Compare 18 U.S.C. § 3663A(a)(2) (explaining that

a victim is “a person directly and proximately harmed as a result of the commission of an

offense”) with id. § 2259(c) (defining a victim as “the individual harmed as a result of a

commission of a crime”).

31

required award of the full amount of losses, or positioned the proximate result

language so that it would apply to all categories of losses, we could consider the

possibility that Congress intended to bind all categories of losses with a

proximate cause requirement. Instead, Congress resisted using the phrase

“proximate cause” anywhere in § 2259, including § 2259(b)(3)(F) and further

required the court to order the “full amount of the victim’s losses.”14 See id. The

selective inclusion and omission of causal requirements in § 2259’s subsections,

together with language pointing away from ordinary causation, suggest that

Congress intended to depart from, rather than incorporate, a tradition of

generalized proximate cause. 

This interpretation does not render the statute unworkable. The problem

seeming to animate the cases in other circuits interpreting § 2259 to require

proximate cause is how to allocate responsibility for a victim’s harm to any

single defendant. See Burgess, 2012 WL 2821069, at *12; Aumais, 656 F.3d at

153–54; Kennedy, 643 F.3d at 1265–66; Monzel, 641 F.3d at 537–40. These

courts ignore, however, that deciding that a defendant “must pay restitution for

the losses he caused (whether proximately or not),” does not resolve how the

court“determines how those losses should be allocated in cases where more than

one offender caused them”—injecting the statute with traditional proximate

causation limitations takes courts no closer to determining what each defendant

must pay or to supplying crime victims with the “full amount of [their] losses.”

Burgess, 2012 WL 2821069, at *14 (Gregory, J., concurring in part, dissenting

in part, and concurring in judgment) (“The question of whether a defendant
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15 Any possible difficulty in ordering restitution in these cases arises not from the

statutory construction, butfrom the type of crime underlying these appeals. It is quite possible

that no other crime is like the crime of distribution, receipt, and possession of child

pornography punishable under § 2252: No other crime involves single victims harmed jointly

by defendants acting independently in the country. See Burgess, 2012 WL 2821069, at *13

(Gregory, J., concurring in part, dissenting in part, and concurring in judgment) (discussing

the indivisibility of the injury to victims of child pornography crimes). Yet, the unique factual

scenario that undergirds the application of this restitution statute need not muddle our

analysis. We cannot interpret this statute to reach a result unsupported by its plain terms.

See Germain, 503 U.S. at 254 (quoting Rubin, 449 U.S. at 430) (explaining that where “the

words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is

complete.’”); see also In re Amy, 591 F.3d at 797 (Dennis, J., dissenting) (“Congress intended

to afford child victims ample and generous protection and restitution, not to invite judge-made

limitations patently at odds with the purpose of the legislation.”). 

32

proximately caused some injury is entirely separate from the question of how

those proximately caused losses should be allocated among several offenders.”).

By focusing on the question of proximate cause, our sister circuits have not made

§ 2259 any easier to apply and seemingly have ignored that § 2259 has armed

courts with tools to award restitution because it instructs courts to refer to the

standards under § 3664.15 See id. § 2259(b)(2) (“An order of restitution under

this section shall be issued and enforced in accordance with section 3664 in the

same manner as an order under section 3663A.”). 

Section 3664 instructs that courts may enforce a restitution order “by all

other available and reasonable means,” id. § 3664(m)(1)(A)(ii), and offers a

“means” to aid courts in awarding restitution in a way that would ensure that

Amy receives the full amount of her losses, to the extent possible, while also

ensuring that no defendant bears more responsibility than is required for full

restitution: joint and several liability. Where “the court finds more than 1

defendant has contributed to the loss of a victim,” § 3664(h) instructs that “the

court may make each defendant liable for payment of the full amount of
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16 As Judge Davis’s dissenting opinion points out, § 3664(h) fully reads:

If the court finds that more than 1 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.

(emphasis added).

Judge Davis’s dissenting opinion would read the italicized portion of 3664(h) to allow

district courts the discretion to circumvent § 2259’s command to award a crime victim the full

amount of his or her losses. Thus, § 2259 dictates that the circumstances underlying child

pornography convictions under § 2252 donot permit division of liability for reasons this opinion

has already explained; the injury victims like Amy suffer does not produce a loss capable of

division. See note 14 supra. We echo the criticism of this approach embodied in Judge

Southwick’s dissenting opinion: 

In light ofthe unique nature of prosecutions of child pornography

and the clear congressional intent to maximize awards, any

doubts about the proper amount of restitution should be resolved

in favor of the child. . . . I am concerned that [Judge Davis’s]

emphasis on the discretion of a district court . . . tends towards

accepting inappropriately low, even nominal awards. I would not

accept that a forward-looking estimate of the number of future

defendants and awards should be used to estimate a percentage

of overall liability to be given a particular defendant. That puts

too much weight on the interests of the defendants. Overcompensation is an unlikely eventuality. 

17 Writing separately in the Fourth Circuit’s recent opinion analyzing § 2259, Judge

Gregory explained the indivisibility of pornography victims’ harms:

If [a defendant] proximately caused [a victim like Amy]’s

psychological injury, this injury is indivisible from the

psychological injuries proximately caused by the other offenders.

I do not believe a fact finder could meaningfully say precisely x

amount of[the victim]’s psychologicalinjurieswere causedby [the

defendant]’s watching the same video.

Burgess, 2012 WL 2821069, at *13 (Gregory, J., concurring in part, dissenting in part, and

concurring in judgment).

33

restitution.”16 The joint and several liability mechanism applies well in these

circumstances, where victims like Amy are harmed by defendants acting

separately who have caused her a single harm.17 See Burgess, 2012 WL 2821069,

at *13 (Gregory, J., concurring in part, dissenting in part, and concurring in

judgment) (explaining that the joint and several liability described in § 3664
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“‘has long been available . . . in which two negligent actors, acting independently

of one another, caused by a single indivisible harm to the plaintiff.’” (quoting

TORT LAW: RESPONSIBILITIES AND REDRESS 517 (John C.P. Goldberg et al. eds.,

2008)). And although the D.C. Circuit has expressed that it is “unclear . . .

whether joint and several liability may be imposed upon defendants in separate

cases,” Monzel, 641 F.3d at 539, nothing in § 3664 forbids it, either expressly or

through implication; the fact that it conforms well to this context supports its

application. 

Any fears that Amy and victims like her might be overcompensated

through the use of joint and several liability, as expressed under § 3664(h), are

unwarranted. See, e.g., Burgess, 2012 WL 2821069, at * 11 (“While full

compensation would be unlikely from any individual defendant, [the victim’s]

proposed interpretation of the restitution statute places no cap on her ultimate

recovery, and would allow her to recover the amount of her losses many times

over.”). The use of joint and several liability does not mean that Amy may

“recover more than her total loss: [rather,] once she collects the full amount of

her losses from one defendant, she can no longer recover from any other.” Id. at

*14 (Gregory, J., concurring in part, dissenting in part, & concurring in

judgment) (quoting TORT LAW, supra, at 517). 

Section 3664 provides “reasonable means” to defend against any

theoretical overcompensation that could result. See 18 U.S.C. §

3664(m)(1)(A)(ii). First, if Amy recovers the full amount of her losses from

defendants, the Government and defendant may use this information to ensure

that Amy does not seek further awards of restitution. See id. § 3664(e)

(explaining that the court may resolve “[a]ny dispute as to the proper amount or

type of restitution . . . by the preponderance of the evidence.”). Second, § 3664(k)

suggests a means for ending defendants’ existing joint and several restitution
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18 Use of this mechanism does not violate § 3664(f)(1)(B)’s command that courts may

not consider a victim’s receipt of compensation from other sources “in determining the amount

of restitution” because § 2259 limits a victim’s recovery to the full amount of his or her losses.

Section 2259(b)(4)(B)’s similar instruction that a court may not decline to issue a restitution

order “because of . . . the fact that a victim has, or is entitled to, receive compensation for his

or her injuries from . . . any other source” reinforces this conclusion. Section 2259(b)(4)(B),

read together with § 3664(b)(f)(1)(B), reinforces the mandatory nature of § 2259 by disallowing

district courts from declining to issue restitution to crime victims while simultaneously

honoring the cap § 2259 places on victims’ recovery: the full amount of a victim’s losses. 

19 Of course, even while Amy may not collect more than to which she is entitled, she

may certainly obtain judgments in excess of that amount. Indeed, Amy has already obtained

judgments exceeding $3.4 million.

35

obligations once Amy receives the full amount of her losses; it allows for a

district court, “on its own motion, or the motion of any party, including the

victim, [to] adjust the payment schedule, or require immediate payment in full,

as the interests of justice require.” This broadly phrased subsection seems to

enable courts to apply joint and several liability across jurisdictions because it

permits those courts to adjust restitution orders as victims receive the full

amount of their losses.18 More concretely, if Amy one day receives the full

amount of restitution representing the “full amount of [her] losses” under § 2259,

district courts across the nation may amend the judgments of defendants to

reflect this fact under § 3664(k) by terminating further restitution obligations.19

In either circumstance, district courts must be in possession of evidence

to support entry of restitution or amendment of the defendants’ judgments.

There are several potential sources of this information. Victims, of course, are

in the best position to know what restitution they have recovered and what

restitution they have yet to receive. In addition to information obtained from

victims, the Government may rely on information maintained by the probation

office and other arms of the U.S. Department of Justice to ensure that amounts
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20 The comprehensive information the Government has provided in this case regarding

the restitution ordered in other cases involving Amy confirms the Government’s access to this

type of information.

21 Nothing in § 2259, § 3664, or in this opinion is intended to restrict the district court’s

ability to use any other mechanisms available under § 3664 to order restitution in a manner

that effects § 2259’s purposes.

36

reported by a victim are accurate.20 Defendants may dispute any amounts in

these requests, and, under § 3664(e), the court may resolve “[a]ny dispute as to

the proper amount or type of restitution . . . by the preponderance of the

evidence.”21

c

Next, the Government asserts that not restricting the recovery of losses

by proximate cause produces an absurd result—constitutional implications that

could be avoided if we were to read § 2259 as requiring proximate causation with

respect to all categories of losses. See Lamie, 540 U.S. at 534 (instructing that

courts must enforce a statute’s terms so long as “the disposition required by the

text is not absurd.”). Specifically, the Government is concerned that without a

proximate cause limitation, § 2259 could be challenged on the ground that it

subjects a defendant to excessive punishment under the Eighth Amendment. 

The Eighth Amendment prescribes that “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S.CONST.amend. VIII. The Government posits that by giving effect

to the statute’s plain text, this court could cause Eighth Amendment problems

similar to that expressed by a recent Supreme Court case involving criminal

forfeiture: Where criminal forfeiture “would be grossly disproportional to the

gravity of [an] offense,” the Supreme Court held that it would violate the

Excessive Fines Clause ofthe Eighth Amendment. United States v. Bajakajian,

524 U.S. 321, 324 (1998). 
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First, we are not persuaded that restitution is a punishment subject to the

same Eighth Amendment limits as criminal forfeiture. Its purpose is remedial,

not punitive. See United States v. Webber, 536 F.3d 584, 602–03 (7th Cir. 2008)

(“Forfeiture and restitution are distinct remedies. Restitution is remedial in

nature, and its goal is to restore the victim’s loss. Forfeiture, in contrast, is

punitive; it seeks to disgorge any profits that the offender realized from his

illegal activity.”) (citations omitted); see also United States v. Taylor, 582 F.3d

558, 566 (5th Cir. 2009) (“Restitution operates to make the victim of the crime

whole.”). Even so, restricting the “proximate result” language to the catchall

category in which it appears does not open the door to grossly disproportionate

restitution in a way that would violate the Eighth Amendment. Section 2259

contains discrete causal limitations that precede the restitutionary right;

restitution thus is limited to losses arising out of a victim’s injury. See 18 U.S.C.

§ 2259(c) (imposing general causation requirement on definition of victim).

Furthermore, the mechanisms under § 3664, which have already been described,

further allay any concerns as to over-punishment. Fears over excessive

punishment are misplaced. 

Any concern thatindividual defendants may bear a greater restitutionary

burden than others convicted of possessing the same victim’s images, moreover,

does not implicate the Eighth Amendment or threaten to create an absurd

result. See Arledge, 553 F.3d at 899. Restitution is not tied to the defendant’s

gain; rather “so long as the government proved that the victim suffered the

actual loss that the defendant has been ordered to pay, the restitution is

proportional.” Id. Even where a district court selectively imposed restitution on

one co-defendant and not another,this court has treated this seeming inequality

as being “of no consequence.” See id.(citing United States v. Ingles, 445 F.3d 830,

839 (5th Cir. 2006) (explaining that “a district court may consider the relative
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38

degrees of responsibility of co-defendants in imposing restitution obligations and

therefore, the simple fact that like punishment was not imposed on [the

co-defendants] does not offend the constitution” (internal quotation marks and

citations omitted)). Thus, the fact that some defendants will be held jointly and

severally liable for the full amount of Amy’s losses, while other defendants

convicted of possessing Amy’s images may not be (because, for example, the

Government or Amy does not seek restitution from them) does not offend the

Eighth Amendment. See id.

The court, moreover, can ameliorate the impact of joint and several

liability on an individual defendant by establishing a payment schedule that

corresponds to the defendant’s ability to pay. See, e.g., United States v. Wright,

No. 09-CR-103, at 5 (E.D. La. Dec. 16, 2009) (explaining the payment of

restitution “shall begin while the defendant is incarcerated [and u]pon release,

any unpaid balance shall be paid at a rate of $200.00 per month” and further

explaining that “[t]he payment is subject to increase or decrease, depending on

the defendant’s ability to pay.”); see also 18 U.S.C. § 3664(e) (“The burden of

demonstrating the financial resources of the defendant and the financial needs

of the defendant’s dependents, shall be on the defendant.”). 

Ultimately, while the imposition of full restitution may appear harsh, it

is not grossly disproportionate to the crime of receiving and possessing child

pornography. Cf. id. at 899–900 (rejecting Eighth Amendment challenge to the

imposition of full restitution, pursuant to joint and several liability, under

Mandatory Victims Restitution Act, in context of mail fraud case). In light of

restitution’s remedial nature, § 2259’s built-in causal requirements, and the

mechanisms described under § 3664, we do not see any Eighth Amendment

concerns here or any other absurd results that our plain reading produces.
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39

2

Accordingly, we hold that § 2259 requires a district court to engage in a

two-step inquiry to award restitution where it determines that § 2259 applies.

First, the district court must determine whether a person seeking restitution is

a crime victim under § 2259—that is, “the individual harmed as a result of a

commission of a crime under this chapter.” 18 U.S.C. § 2259(c). The Supreme

Court has acknowledged that “[t]he distribution of photographs and films

depicting sexual activity by juveniles is intrinsically related to the sexual abuse

of children,” New York v. Ferber, 458 U.S. 747, 759 (1982), and this court has

elaborated that “children depicted in child pornography may be considered to be

the victims ofthe crime of receiving child pornography.” United States v. Norris,

159 F.3d 926, 929 (5th Cir. 1998). This logic applies with equal force to

defendants who possess child pornography: By possessing, receiving, and

distributing child pornography, defendants collectively create the demand that

fuels the creation of the abusive images. Thus, where a defendant is convicted

of possessing, receiving, or distributing child pornography, a person is a victim

under this definition if the images the defendant possesses, receives, or

distributes include those of that individual. 

Second, the district court must ascertain the full amount of the victim’s

losses as defined under § 2259(b)(3)(A)–(F), limiting only § 2259(b)(3)(F) by the

proximate result language contained in that subsection, and craft an order

guided by the mechanisms described in § 3664, with a particular focus on its

mechanism for joint and several liability. 

IV

Having resolved this importantissue of statutory interpretation, we apply

our holding to Amy’s mandamus and Wright’s appeal.
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40

A

Under our traditional mandamus inquiry, we will grant Amy’s petition for

mandamus if (1) she has no other adequate means to attain the desired relief;

(2) she has demonstrated a clear and indisputable rightto the issuance of a writ;

and (3) in the exercise of our discretion, we are satisfied that the writ is

appropriate in these circumstances. See Dean, 527 F.3d at 394. As the Supreme

Court has noted,the “hurdles”limiting use of mandamus, “however demanding,

are not insuperable.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 381 (2004). 

We easily conclude that the first prong is met. Because we have held that

the CVRA limits crime victims’ relief to the mandamus remedy, Amy has no

other means for obtaining review of the district court’s decision not to order

restitution. See supra § II–A. We are also satisfied that a writ is appropriate in

these circumstances: The CVRA expressly authorizes mandamus, 18 U.S.C. §

3771(d)(3), and awarding restitution would satisfy § 2259’s broad restitutionary

purpose. Next, we conclude that Amy has a “clear and indisputable” right to

restitution in light of our holding today. First, Amy is a “victim” under § 2259(c).

Paroline possessed atleasttwo of her images, and his possession ofthose images

partly formed the basis of his conviction. See Ferber, 458 U.S. at 759; Norris,

159 F.3d at 929. Amy, as an “individual harmed as a result of [Paroline’s]

commission of a crime” falling within § 2259’s scope, is thus a victim under §

2259. See Kearney, 672 F.3d at 94 (“Any argument that [Amy] has not suffered

harm as a result of [Paroline’s] crimes defies both fact and law.”). Because Amy

is a victim, § 2259 required the district court to award her restitution for the

“full amount of [her] losses” as defined under § 2259(b)(3). Because the district

court awarded Amy nothing, it therefore clearly and indisputably erred. No

matter what discretion the district court possessed and no matter how
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confounding the district court found § 2259, it was not free to leave Amy with

nothing. 

On remand, the district court must enter a restitution order reflecting the

“full amount of [Amy’s] losses” in light of our holdings today.

B

Turning to Wright’s appeal, Amy is eligible for restitution as a “victim” of

Wright’s crime of possessing images of her abuse for the same reasons she is

eligible as a victim of Paroline’s crime. See supra § IV-A. It was therefore legal

for the district court to order restitution to Amy. See Arledge, 553 F.3d at 897

(reviewing the legality of the restitution order de novo). As such, Wright’s

appeal necessarily focuses on the amount of the district court’s restitution

award, which we review for an abuse of discretion. Id. The district court

awarded Amy $529,661 by adding Amy’s estimated future counseling costs to the

value of her expert witness fees. The district court did not explain why Wright

should not be required to pay for any of the other losses Amy requested, and the

record does not otherwise disclose why the district court reduced the

Government’s full request on Amy’s behalf. While the district court erred in

failing to award Amy the full amount of her losses, because the Government did

not appeal Wright’s sentence and Amy did not seek mandamus review, under

Greenlaw v. United States, we must affirm Wright’s sentence. 554 U.S. 237, 246

(2008) (holding appellate court may not increase sentence of defendant where

Government did not appeal sentence directly or on cross-appeal). 

V

For the reasons above, we reject the approach of our sister circuits and

hold that § 2259 imposes no generalized proximate cause requirement before a

child pornography victim may recover restitution from a defendant possessing

images of her abuse. We AFFIRM the district court in United States v. Wright,
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22 Amy’s motion to strike portions of the Government’s brief is DENIED.

42

No. 09-CR-103 (E.D. La. Dec. 16, 2009). We VACATE the district court’s

judgmentin United States v. Paroline, 672 F. Supp. 2d 781 (E.D. Tex. 2009), and

REMAND for proceedings consistent with this opinion.22
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43

DENNIS, Circuit Judge, concurring in part in the judgment. 

I respectfully concur in the majority opinion’s decision thatthe CVRA does

not grant crime victims a right to a direct appeal from a district court’s rejection

of her claim for restitution under 18 U.S.C. § 2259; that the CVRA grants crime

victims only a right to seek traditional mandamus review; and that the CVRA

grants the government the right to seek mandamus and to retain its right to a

direct appeal.

I further agree with the majority that neither the Government nor the

victim is required to prove that the victim’s losses defined by 18 U.S.C. § 2259(b)

(3)(A)-(E) were a proximate result of the defendant’s crime; it is only “any other

loss suffered by the victim” that must be proved to be “a proximate result of the

offense.” Id. § 2259(b)(3)(F). Section 2259(c) defines “victim” as an “individual

harmed as a result of a commission of a crime under this chapter,” but it does

not require a showing that the victim’s losses included in § 2259(b)(3)(A)-(E) be

a “proximate result ofthe offense.” From this, I infer that the statute places only

a slight burden on the victim or the government to show that the victim’s losses

or harms enumerated in those subsections plausibly resulted from the offense.

Once that showing has been made, in my view, a presumption arises that those

enumerated losses were the proximate result ofthe offense, which the defendant

may rebut with sufficient relevant and admissible evidence.

Finally, I agree with the majority’s conclusion that where a defendant is

convicted of possessing child pornography, a person is a victim under the statute

if the images include those of that individual. In these cases, I agree that the

government and the victim have made a sufficient showing, unrebutted by the

defendant, that the victim is entitled to restitution of losses falling under 18

U.S.C. § 2259 (b)(3)(A)-(E). Therefore, I concur in that part of the majority’s
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judgment that vacates the district courts’ judgments and remands the cases to

them for further proceedings. 

In remanding, however, I would simply directthe district courts to proceed

to issue and enforce the restitution orders in accordance with 18 U.S.C. § 3664

and 3663A, as required by § 2259(b)(2). Going forward, I believe it best to permit

district courts to craft procedural and substantive devices for ordering

restitution that would take into account both the mandatory nature of full

restitution for crime victims under section 2259 and the mechanical difficulties

of crafting orders given the possibility of multiplicitous liability among hundreds

of defendants under circumstances that may change over time. While I admire

the majority’s effort to provide guidance to the district courts in their extremely

difficulttask of molding and merging these federal statutes, §§ 2259, 3663A, and

3664, into a legal, just, and predictable system, I believe that effortis premature

in this court at this time on the present record. Rather, I would leave the

decision as to how to proceed under these statutes to the district courts, which

may decide to take additional evidence and require study and briefing by the

parties to assist them in these difficult cases.
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1 Section 2259 directs courts to “order restitution for any offense under this chapter.”

District courts do not have discretion to make no award.

45

W. EUGENE DAVIS, Circuit Judge, concurring in part and dissenting in part,

joined by KING, SMITH, and GRAVES, Circuit Judges.

I agree with my colleagues in the majority that we should grant

mandamus in In re Amy and remand for entry of a restitution award.1I also

agree that we should vacate the award entered in Wright and remand for further

consideration on the amount of the award. The devil is in the details, however,

and I disagree with most of the majority’s analysis.

I disagree with my colleagues in the majority in two major respects:

1. Although I conclude that the proximate cause proof required by the

restitution statutes can be satisfied in these cases, I disagree with

the majority that the statute authorizes restitution without any

proof that the violation proximately caused the victim’s losses. 

2. I agree with the majority that the district court must enter a

restitution award against every offender convicted of possession of

the victim’s pornographic image; but I disagree with the majority

that in cases such as these two, where the offenses of multiple

violators contribute to the victim’s damages, the district court must

enter an award against each offender for the full amount of the

victim’s losses. No other circuit that has addressed this issue has 

adopted such a one size fits all rule for the restitution feature of the

sentence of an offender. Other circuits have given the district courts

discretion to assess the amount of the restitution the offender is

ordered to pay. See, e.g., United States v. Burgess, 684 F.3d 445, 460
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(4th Cir. 2012); United States v. Kearney, 672 F.3d 81, 100-01 (1st

Cir. 2012); United States v. McGarity, 669 F.3d 1218, 1270 (11th

Cir. 2012); United States v. Laney, 189 F.3d 954, 967 (9th Cir. 1999).

I.

THE STATUTES 

At bottom, this is a statutory interpretation case, and I begin with a 

consideration of the structure and language of the statutes at issue that facially

belie the majority’s position that victims may be awarded restitution for losses

not proximately caused by offense conduct. Section 2259 specifically governs

mandatory restitution awards for crimes related to the sexual exploitation and

abuse of children. A number of provisions in the statute make it clear that proof

of a causal connection is required between the offenses and the victim’s losses.

Section 2259(b)(2) expressly incorporates the general restitution

procedures of 18 U.S.C. § 3664 and states that “[a]n order of restitution under

this section shall be issued and enforced in accordance with section 3664 in the

same manner as an order under section 3663A.” Section 3664(e) states that

“[t]he 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.” (emphasis

added). 

This language requiring proof of causation from § 3664(e) is consistent

with the language defining “victim” found in § 2259(c), who is defined as “the

individual harmed as a result of a commission of crime under this chapter . . . .”

(emphasis added).

Section 2259(a) states thatthe court“shall order restitution for any offense

under this chapter.” Section 2259(b)(3) states that the victim’s losses are defined

as those suffered by the victim “as a proximate result of the offense.” The full

text of § 2259(b)(3) is as follows: 
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[T]he term “full amount of the victim’s losses” includes any costs

incurred by the victim for –

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

(F) any other losses suffered by the victim as a proximate

result of the offense.

(emphasis added). 

In interpreting this provision we should follow the fundamental canon of

statutory construction established by the Supreme Courtin Porto Rico Railway,

Light & Power Co. v. Mor, 253 U.S. 345 (1920). In that case, the Court held that

“[w]hen several words are followed by a clause which is applicable as much to

the first and other words as to the last, the natural construction of the language

demands that the clause be read as applicable to all.” Id. at 348. Applying this

cardinal rule of statutory interpretation, I conclude that subsection (F)’s “as a

proximate result of the offense” language applies equally to the previous five

subcategories of losses, (A) through (E). This interpretation was accepted by the

Eleventh Circuit in United States v. McDaniel, 631 F.3d 1204, 1209 (11th Cir.

2011) (“The phrase ‘as a proximate result of the offense’ is equally applicable to

medical costs, lost income, and attorneys’ fees as it is to ‘any other losses.’”

(citing Porto Rico Ry., 253 U.S. at 348)); see also Laney, 189 F.3d at 965 (reading

the “as a result of” language in § 2259's definition of victim together with the

“proximate result” language in § 2259(b)(3)(F) to infuse all of 2259(b)(3) with a

proximate cause requirement). 

In contrast,the majority concludes that once the district court determines

that a person is a victim (an individual harmed as a result of an offense under
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2 The majority would apparently hold that if Amy were injured in an automobile

accident on the way to a counseling session, those damages would be included in a restitution

award. 

3

I am not persuaded by In re Amy’s attempt to distinguish the statute in Porto Rico

Railway on the basis that the subcategories of § 2259(b)(3) are separated by semicolons rather

than commas. See In re Amy, 636 F.3d 190, 199 (5th Cir. 2011). Either punctuation device is

an acceptable method of separating clauses. See BRYAN A.GARNER, THE REDBOOK:AMANUAL

ON LEGAL STYLE 1-15 (2d. ed. 2006).

48

§ 2259) the district court must order restitution without further proof of

causation.2

The majority’s reading of § 2259(b)(3) is patently inconsistent with the rule

of statutory interpretation announced in Porto Rico Railway, which makes it

clear that the clause should be read to apply to all categories of loss.3 My

conclusion that Porto Rico Railway’s rule of interpretation applies in this case

is made even clearer when we consider the multiple references in the statutes

discussed above expressly reflecting Congressional intent to require proof of

causation. 

The D.C. Circuit and other circuits have reached the same conclusion–

that is, that § 2259 requires proof of proximate cause–albeit by a slightly

different reasoning. See United States v. Monzel, 641 F.3d 528, 535-37 (D.C. Cir.

2011); United States v. Aumais, 656 F.3d 147, 153 (2d Cir. 2011); Burgess, 684

F.3d at 459. The D.C. Circuit explained that it is 

a bedrock rule of both tort and criminal law that a defendant is only

liable for harms he proximately caused. (“An essential element of

the 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’ . . . .”). 
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(footnote omitted) (citation omitted) (quoting W. PAGE KEETON ET AL., PROSSER

AND KEETON ON THE LAW OF TORTS § 41, at 263 (5th ed. 1984)); see also 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.”).

“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.” Monzel, 641 F.3d at 536. The court

found that “nothing in the text or structure of § 2259 leads us to conclude that

Congress intended to negate the ordinary requirement of proximate cause.” Id.

Other circuits have used different analyses but all circuits to confront this

issue have interpreted the statute as using a proximate causation standard

connecting the offense to the losses. See United States v. Evers, 669 F.3d 645,

658-59 (6th Cir. 2012) (finding a proximate cause requirement but declining to

choose whether to adopt the McDaniels or Monzel rationale as they are

“complementary”); Kearney, 672 F.3d at 96, 99 (adopting a proximate cause

standard but not specifying under what analysis); UnitedStates v. Crandon, 173

F.3d 122, 125-26 (3d Cir. 1999) (stating, without analysis, that § 2259 requires

damages for losses suffered “as a proximate result of the offense”). This circuit

is the only circuit that has interpreted § 2259 and concluded that proximate

cause is not required by the statute. 

For the above reasons, I conclude that the statutes at issue require proof

that the defendant’s offense conduct proximately caused the victim’s losses

before a restitution award can be entered as part of the defendant’s sentence. 

II.

CAUSATION
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In cases such as the two cases before this court where the conduct of

multiple offenders collectively causes the victim’s damages, I would follow the

position advocated by the Government and adopted by the First Circuit and the

Fourth Circuit to establish the proximate cause element required by § 2259.

Kearney, 672 F.3d at 98-99; Burgess, 684 F.3d at 459-60. Under this “collective

causation”theory, itis not necessary to measure the precise damages each ofthe

over 100 offenders caused. As the First Circuit in Kearney stated: “Proximate

cause exists where the tortious conduct of multiple actors has combined to bring

about harm, even if the harm suffered by the plaintiff might be the same if one

of the numerous tortfeasors had not committed the tort.” 672 F.3d at 98. The

court relied on the following statement of the rule from Prosser and Keeton:

When the conduct of two or more actors is so related to an event

that their combined conduct, viewed as a whole, is a but-for cause

of the event, and application of the but-for rule to each of them

individually would absolve all ofthem,the conduct of each is a cause

in fact of the event.

KEETON ET AL., supra, § 41, at 268. 

The court explained further:

Proximate cause therefore exists on the aggregate level, and there

is no reason to find it lacking on the individual level. The

Restatement (Third) of Torts has recognized this: causation exits

even where “none of the alternative causes is sufficient by itself, but

together they are sufficient” to cause the harm. 

Kearney, 672 F.3d at 98 (quoting RESTATEMENT (THIRD) OF TORTS:LIABILITY FOR

PHYSICAL AND EMOTIONAL HARM § 27 reporters’ n. cmt. g. (2010); id. § 36 cmt. a

(“[E]ven an insufficient condition . . . can be a factual cause of harm when it

combines with other acts to constitute a sufficient set to cause the harm.”)).

I agree with the Government and the First and Fourth Circuits that this
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4 The Government argued that contribution would not apply in this context because the

statute did not authorize it and, in any event, it would not apply among defendants convicted

in different courts; but their authority on this point is very thin and does not directly and

strongly support this view. 

51

definition of proximate cause is appropriate in this context and under this

standard the causation requirement in both cases before us is satisfied. 

III.

AMOUNT OF THE AWARD

The most difficult issue in these cases–where multiple violators combine

to cause horrendous damage to a young victim–is establishing some standards

to guide the district court in setting an appropriate restitution award for the

single offender before the court. 

I agree that Amy is a victim in both cases before us. Defendant Paroline

(in In re Amy) and defendant Wright possessed Amy’s pornographic images and

the statute requires the court to enter an award against them.

I agree that Amy is entitled to a restitution award from all of her offenders

in a sum that is equal to the amount of her total losses. But in cases such as

these where multiple violators have contributed to the victim’s losses and only

one of those violators is before the court, I disagree that the court must always

enter an award against that single violator for the full amount of the victim’s

losses. I agree that § 3664(h) gives the court the option in the appropriate case

of entering an award against a single defendant for the full amount of the

victim’s losses even though other offenders contributed to these losses. I also 

agree that in that circumstance the defendant can seek contribution from other

offenders jointly liable for the losses.4 We have allowed such contribution claims
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in analogous non-sex offender cases. E.g., UnitedStates v. Arledge, 553 F.3d 881,

899 (5th Cir. 2008) (finding that defendant could “seek contribution from his coconspirators to pay off the restitution award and reduce the amount he

personally owe[d]” in the context of a fraud scheme with multiple participants);

accord United States v. Martinez, 610 F.3d 1216, 1234 (10th Cir. 2010); United

States v. Newsome, 322 F.3d 328, 340-41 (4th Cir. 2003). 

In concluding that an award for the full amount of the victim’s losses is

required the majority relies on § 3664(h) which provides: 

If the court finds that more than 1 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.

(emphasis added). The majority simply ignores the second clause in § 3664(h)

emphasized above. That subsection plainly gives the court the option of either

(1) assessing a restitution award againstthe single defendantin an amountthat

is equal to the victim’s total losses or (2) apportioning liability among the

defendants to reflect each defendant’s level of contribution to the victim’s loss

taking into consideration a number of factors including the economic

circumstances of each defendant. Accord McGarity, 669 F.3d at 1270. It would

be surprising if Congress had not given courts this option. After all, restitution

is part of the defendant’s criminal sentence and § 3664(h), consistent with

sentencing principles generally, gives the sentencing judge discretion to fix the

sentence based on the facts and circumstances surrounding the defendant’s

circumstances, background, and nature of his conduct. See, e.g., Burgess, 684

F.3d at 460; Kearney, 672 F.3d at 100-01; McGarity, 669 F.3d at 1270; Laney,
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189 F.3d at 967. One size does not fit all in this context any more than the

length of a prison sentence or any other feature of a criminal sentence.

I agree with the majority that the defendants in both cases before us

having been convicted of violating 18 U.S.C. § 2252 must be ordered to pay

restitution to Amy. We should leave the calculation of the appropriate award

against each defendantto the district courtin the first instance. I would give the

district court the following general guidelines: 

The court must recognize that Amy’s losses are an aggregation of the acts

of the person who abused and filmed her assault, those who distributed and

redistributed her images, and those who possessed those images. The culpability

and liability for restitution of any one defendant regarding Amy’s loss is

dependent at least in part on the role that defendant played with respect to her

exploitation. See, e.g., Burgess, 684 F.3d at 460. 

The court should first compute the victim’s probable future losses based

on evidence of the damages she will likely incur from the date of the defendant’s

offense conduct into the foreseeable future. The court should consider all items

of damage listed in § 2259(b)(3) as well as any other losses suffered by the

defendant related to the conduct of the violators of this chapter. 

In a case such as this where multiple individuals have been convicted of

contributing to her abuse, the district court has the discretion under § 3664(h)

either to enter an award for the total amount of her provable losses or some

portion of those losses to reflect the defendant’s role in causing the damage as

well as the other surrounding circumstances.

The district court is not required to justify any award with absolute

precision, but the amount of the award must have a factual predicate. In

determining whether it should cast the single defendant before it for the total

amount of the victim’s losses or in fixing the amount of a smaller award the
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court should consider all relevant facts including without limitation the

following:

1. The egregiousness of the defendant’s conduct including whether he was

involved in the physical abuse of this victim or other victims, and whether

he attempted to make personal contact with victims whose images he

viewed or possessed.

2. For defendants who possessed images of the victim, consider the number

of images he possessed and viewed, and whether the defendant circulated

or re-circulated those images to others.

3. The financial means of the defendant and his ability to satisfy an award.

4. The court may consider using the $150,000 liquidated civil damage award

authorized by 18 U.S.C. § 2255 or a percentage thereof as a guide in fixing

the amount of the award.

5. The court may also consider as a guide awards made in similar cases in

this circuit and other circuits.

6. Any other facts relevant to the defendant’s level of contribution to the

victim’s loss and economic circumstances of the defendant.

IV. 

CONCLUSION 

In summary, I would grant mandamus and vacate the judgment in In re

Amy and remand that case to the district courtto enter an award consistent with

the principles outlined above. I would also vacate the judgment in Wright and

remand for entry of judgment consistent with the above guidelines. 
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LESLIE H. SOUTHWICK, Circuit Judge, dissenting:

We are confronted with a statute that does not provide clear answers. I

join others in suggesting it would be useful for Congress “to reconsider whether

§ 2259 is the best system for compensating the victims of child pornography

offenses.” United States v. Kennedy, 643 F.3d 1251, 1266 (9th Cir. 2011); see also

United States v. Burgess, 684 F.3d 445, 460 (4th Cir. 2012). The goal is clear:

providing meaningful restitution to victims of these crimes. How to order

restitution in individual cases in light of that goal is a difficult question.

Our task today is to effectuate the scheme according to the congressional

design as best as we can discern it. Both of the other opinions have ably

undertaken this difficult task. I agree with Judge Davis that this circuit should

not chart a solitary course that rejects a causation requirement. The reasons

why I believe the statute requires causation are different than he expresses,

though. I agree with the majority, relying on the last-antecedent rule, that the

phrase “as a proximate result ofthe offense” that is in Section 2259(b)(3)(F) only

modifies the category of loss described in (F). See, e.g., Jama v. Immigration and

Customs Enforcement, 543 U.S. 335, 343 (2005). 

Though I agree with the majority in that respect, I find persuasive the

reasoning of the Second, Fourth, and D.C. Circuits that causation “is a deeply

rooted principle in both tort and criminal law that Congress did not abrogate

when it drafted § 2259.” United States v. Aumais, 656 F.3d 147, 153 (2d Cir.

2011); Burgess, 684 F.3d at 457; United States v. Monzel, 641 F.3d 528, 535-36

(D.C. Cir. 2011). In a similar vein, the Supreme Court stated that absent “some

indication of congressional intent, express or implied,” courts will decline to read

federal statutory crimes that fail to mention it, as eliminating the mens rea
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requirement that has been a hallmark of crimes since the common law. Staples

v. United States, 511 U.S. 600, 605-06 (1994). 

True, the positioning of the phrase “proximate result” solely within

subsection (F) could be a sign that Congress meant to eliminate causation for

damages falling under subsections (A)-(E). Any such implication is thoroughly

defeated, though, by other provisions of the statute. First, as the D.C. Circuit

has recognized, Section 2259 calls for restitution to go to a “victim” of these

crimes, a term defined as “the individual harmed as a result of a commission of

a crime under this chapter.” Monzel, 641 F.3d at 535 (emphasis added).

Second, the statute directs that an order of restitution should be issued and

enforced “in the same manner as an order under section 3663A.” §2259(b)(2).

Under Section 3663A “‘victim’ means a person directly and proximately harmed

as a result ofthe commission of an offense for which restitution may be ordered.”

§ 3663A(2). The “as a result” language from Section 2259 as well as the more

explicit mention of proximate harm in Section 3663A convince me that “nothing

in the text or structure of the restitution statute affirmatively indicates that

Congress intended to negate the ordinary requirement of proximate causation

for an award of compensatory damages.” Burgess, 684 F.3d at 457; Monzel, 641

F.3d at 536. 

I understand the contours of this proximate-cause requirement in much

the same manner as does Judge Davis, including his analysis of “collective

causation.” See also United States v. Kearney, 672 F.3d 81, 96-98 (1st Cir. 2012).

I also agree that the option of “apportion[ing] liability among the defendants to

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

of each defendant” belies the majority’s notion that each case calls for an award

equal to the total loss incurred by a victim. § 3664(h). Yet by making restitution
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“mandatory” for all these crimes of exploitation, including possession and

distribution of child pornography, Congress made its “goal of ensuring that

victims receive full compensation” plain. Kearney, 672 F.3d at 99. 

Awards must therefore reflect the need to make whole the victims ofthese

offenses. As Amy’s suffering illustrates, the “distribution of photographs and

films depicting sexual activity by juveniles is intrinsically related to the sexual

abuse of children.” New York v. Ferber, 458 U.S. 747, 759 (1982). They

constitute an indelible “record ofthe children’s participation and the harm to the

child is exacerbated by their circulation.” Id.

In light ofthe unique nature of prosecutions for child pornography and the

clear congressional intent to maximize awards, any doubts about the proper

amount of restitution should be resolved in favor of the child. This concern is

largely a matter of a difference of emphasis from the views expressed by Judge

Davis. I am concerned that his emphasis on the discretion of a district court,

though clearly that discretion exists and can be exercised under the terms of

Section 3664, tends towards accepting inappropriately low, even nominal

awards. I would not accept that a forward-looking estimate of the number of

future defendants and awards should be used to estimate a percentage of overall

liability to be assigned a particular defendant. That puts too much weight on

the interests of the defendants. Over-compensation is an unlikely eventuality.

Were it to occur, then at that point district courts might be able to shift to

evening up contributions among past and future defendants.

In summary, proximate cause must be shown and the principle of

aggregate causation is the method for proving its existence. By statute, district

courts can award all damages to each defendant but also have discretion to make
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lesser awards if properly explained. This means that I agree with requiring

additional proceedings as to both defendants, but disagree that each district

court is required to impose a restitution award of the full amount of damages.