United States v. Michael Wright

remedies. ability to sue for Appellants’ have no now Appellants

The reason is not a deceivable relief practical

available allowed defect which

duty, a contractual legal without construction cease

Lacote to recovery, in obstacle to

consequence; insolvency.11

stead, Lacote’s has been

CONCLUSION above, we discussed

For the reasons grant court’s of sum- the district

AFFIRM of Defendants- in favor

mary judgment Loga and Stieffel.

Appellees UNKNOWN, Petitioner.

In re America, States

United

Plaintiff-Appellee, Paroline,

Doyle Defendant- Randall

Appellee,

v.

Amy Unknown, Movant-Appellant. America, States of

United

Plaintiff-Appellee, Defendant-Appellant. Wright,

Michael 09-41238, 09-4154 and 09-31215.

Nos. of Appeals, States Court

Fifth Circuit.

Oct. 2012. reason, making project,” thereby it "im- Appellants’ argument lion dollar For the same Appellants possible" Lacote and to com- obligation to within 24 that Lacote's construct Village within 24 plete illusory because "Lacote had no construction months was investment, signing Agreements, the Purchase capital loan and months of no construction unavailing. twenty-four mil- performance no bond for a Marsh, Firm,

James R. Marsh Law Plains, NY, (ar- White Paul G. Cassell gued), UT, City, Salt Lake for Petitioner. Schneider, Stanley G. Schneider & P.C., Houston, TX, McKinney, Fred Rimes Files, Jr., Bain, Files, Jarrett, Bain & Har- rison, TX, Tyler, for Defendant-Appellee. Griffith, Amanda Louise Asst. U.S. Plano, TX, (ar- Atty., Michael A. Rotker Div., were caused Justice, tim’s losses that Crim. Dept, gued), U.S. panel A criminal acts. Baldwin, by a defendant’s Tra- DC, D. William Washington, in- rejected reading, court Attys., Tyler, Kenner, Asst. U.S. Lynne ci plain language focused on Klebba, stead 2259’s Diane Hol- TX, Brian Marshall not limit a vic- 2259 does to hold Mann, R. Asst. James Copes, lenshead losses to those tim’s total recoverable Orleans, LA, Plain- for New Attys., a resulting from defendant’s proximately tiff-Appellee. applied that subsequent panel A conduct. Schulberg (argued), Coving- Robin Elise yet holding appeal, to another simulta- Kent, Asst. Fed. ton, LA, Ajubita Roma neously questioned special it in a concur- Schlueter, Def., Laughlin Virginia Pub. reasoning of our rence that mirrored Def., Defender’s Of- Fed. Pub. Pub. Fed. discrepan- circuits. To address sister LA, Orleans, Defendant-Ap- fice, for New of this and other cy holdings between the pellant. circuits, respond to to the concerns concurrence, grant- we special court’s our pan- vacated the rehearing ed en banc and opinions. el court holds that This en banc STEWART, Judge, and Chief Before require- result only imposes proximate a DAVIS, JONES, SMITH, KING, JOLLY, 2259(b)(3)(F); it does not re- ment in PRADO, DENNIS, CLEMENT, GARZA, the Government to show quire SOUTHWICK, OWEN, ELROD, trigger cause to a defendant’s GRAVES, Judges.1 Circuit HAYNES categories of losses in obligations for the 2259(b)(3)(A)-(E). Instead, respect GARZA, Judge, EMILIO M. Circuit categories, plain language to those STEWART, E. Chief joined by CARL a court the statute dictates that district JOLLY, EDITH and E. GRADY Judge, for the full amount must award restitution CLEMENT, JONES, BROWN H. EDITH the district of those losses. VACATE We OWEN, PRADO, WALKER JENNIFER of the cases courts’ both judgments HAYNES, Judges: ELROD and Circuit proceed- for further below and REMAND opinion. with this ings consistent the en banc court presented The issue to requires § 2259 whether 18 U.S.C. I to find that a defendant’s district court appeals arising review a set of from a crime We acts caused criminal separate judgments two criminal issued the district court victim’s losses before restitution, courts within this circuit. though that different district may order even requests appeals Both involve restitution “proximate l'esult” contains a 2259(b)(3)(F). Amy, young adult whose uncle sexual- All our child, captured his acts ly abused her as that have addressed this sister circuits film, distributed them for of on and then expanded meaning have question for 2259(b)(3)(F) The National Center all under others to see. apply losses Children, which re- 2259(b)(3), Missing Exploited thereby restricting the dis- 35,000 found at least ports a vic- it has award of restitution to trict court’s hearing. Judge Higginson and did not is recused any aspect this en banc re participate in images Amy’s among sought abuse the evidence which she restitution. Id. at 791. 3,200 pornography in over child cases since Concluding that the Government failed to images of these link, describes content show this causal the district court “extremely graphic.” Government denied restitution. Id. at 793. Amy reports restitution has been ordered mandamus, petitioned for asking this court pornography at least 174 child to direct the district court to order Paro- cases across the United States amounts line pay her the full amount of the $3,543,471. ranging from $100 requested. restitution she had dissent, Over panel one denied her A relief because it was not clear or indisputa- In the Amy, consolidated cases In re § ble that 2259 mandates restitution irre- (5th Cir.2009), F.3d 792 and Amy In re spective proximate Amy, cause. In re Unknown, (5th Cir.2011), 636 F.3d 190 at Amy 794-95. sought rehear- panel Amy’s of this court reviewed manda- ing and a separate filed notice appeal petition mus appeal, and both of which order; from the district court’s restitution challenged the district deny- court’s order her petition mandamus and appeal were ing Amy restitution in connection with a Unknown, consolidated. Amy See In re criminal defendant’s sentence. panel 636 F.3d at 192-93. The assigned to In underlying Amy’s the case mandamus Amy’s hear appeal granted her rehearing (“Paro petition appeal, Doyle and Paroline request. Id. panel at 193. That then line”) pled guilty to 18 U.S.C. 2252 for granted rejected mandamus and a require- possessing images 150 to 300 of minors ment of proof proximate cause sexually engaged explicit conduct. At because “[incorporating proximate cau- images Amy. least two were of Pursuant sation requirement where none exists is a Amy’s right to restitution under the error,” indisputable clear and but declined Act, Rights Crime Victims’ 18 U.S.C. question to reach the of whether crime Amy the Government and moved Amy victims such as right have a to an the district court to order restitution under appeal. Id. at 201. The panel re- Amy supported request 2259. with manded for entry the district court’s of a psychiatrist’s report, her which itemized restitution order. Id. at 201. damages specific categories her future for of treatment and total damages estimated B

nearing million.2 $3.4 Amy

The district court denied restitu- v. Wright, United States 639 F.3d 679 Paroline, (5th Cir.2011), tion. United States v. a separate panel of this (E.D.Tex.2009). F.Supp.2d appeal The heard the of Michael Wright court Paroline, court required (“Wright”). district held that Like Wright pled prove by possessing guilty Government to to 18 possession U.S.C. for abuse, 30,000 images depicting Amy’s sexual Pa- images pornography, over of child injuries roline caused the for which images Amy’s included abuse.3 Amy Wright pled guilty pursuant plea agree- attested that 3. this amount reflects to a produc- generally right total amount of her from the ment in which he losses waived his tion, distribution, appeal right possession appeal and of the im- but reserved his ages "any primarily comprises punishment statutory of her abuse excess of Wright’s agreement psychological plea costs for future care and future maximum.” stated provisions lost income. that "the restitution of Sections Amy was entitled to concluded that panel sought restitution The Government court had but that the district request its supporting Amy under for the award it reasons Amy given inadequate report pro psychiatric the same The re- panel at 685-86. Id. The district court assessed. case. in Paroline’s vided restitution, findings regarding manded for further $529,661 in ex awarded award. Id. at 686. amount of the was reached amount plaining “[t]his Wright panel, how- three members on costs of the vic adding the estimated ever, concurrence that joined special at counseling treatment tim’s future Amy’s holding suggested questioned of the victim’s $512,681.00 the costs banc, $16,980.00.” rehear both cases en Judg that the court fees expert witness this court was the first part because 6-7, Wright, No. States ment at 2009). re- (E.D.La. proximate that a cause circuit to hold Dec. 09-CR-103 “full not attach to the quirement it does explain why award did not district court 2259(b)(3). of ... losses” under amounts amount for the other ed no restitution (Davis, J., 689-90, specially See id. at made no ref requested and had concurring). requirement. to a erence Amy had been Observing that See id. the mandates in both This court held in another district awarded restitution Wright. majority A of this Amy and court, explained further court the district voted to rehear these court’s members herein is restitution ordered that “[t]he question of en banc to resolve the opinions any other restitution or concurrent with § and how to award restitution under or to be im already imposed der either questions other related raised to address victim.” payable future to this posed In re appeals. these See Un- appealed to Wright R. 111-12. USCA5 Wright, & States v. known order. contest the restitution Cir.2012) (5th rehear- (granting F.3d 776 banc). ing en first found that Wright panel The plea agreement appeal Wright’s waiver II right appeal to did not foreclose his banc, Wright en rehearing 639 F.3d at 683. Wright, restitution order. (1) Then, following we address issues: Amy’s holding, Wright applying Wright gorfes did not waive United States of losses because 3663 and 3663A of Title to apply” right appeal will and made no reference unbounded Code his to a sentence During guilty plea colloquy, § Because we hold cause limitation. plea court restated the terms of the district today "proximate § re- that 2259’s isolated regarding Wright’s appeal agreement waiver. categories all sult” does not cloak Wright if he under- The district court asked requirement, proximate cause losses with a waiving, rights he was and he stood all the appeal address the waiv- we need not further responded The district court also that he did. appeal repeatedly held that er issue. We have Wright that he asked if he understood “also to en- the Government does not seek waivers any may required to reimburse victim for be self-enforcing and that the Gov- force are not loss under the Victim the amount of his or her effectively can "waive waiver.” ernment Law, applicable.” if that term is Restitution Acquaye, 452 F.3d See United States v. Wright again he understood. said (5th Cir.2006). Given the Government’s appeal seeks to assert the Government holding on the substance concession and our Wright signed only if we waiver hold § that the Government we conclude by proximate in all is limited seeking appeal waiver in is not to enforce the concedes, however, Wright’s respects. It Accordingly, we conclude that the this case. if the en appeal waiver would not be valid Wright’s appeal. appeal bar waiver does not proxi- court holds that 2259 lacks banc id. See all cate- that covers mate cause Rights may Act and the Government whether Crime Victims’ move the district (“CVRA”) grants right right. crime victims a court to enforce Id. 3771(e) or, not, 3771(d)(1); if whether this court see id. appeal (defining an Amy’s petition “crime victim” “a person directly should review mandamus court has applied under the standard this harmed as result of the com- (2) offense.”). writs; whether 18 mission of a Federal supervisory requires the Government to CVRA further commands that U.S.C. “[i]n criminal court proxi- proceeding involving show a defendant’s acts an offense victim, mately injuries against caused a victim’s before a a crime the court shall en- restitution; may district court award and sure that the crime victim is afforded [this (3) 3771(b)(1). whether, light holding right].” of our Id. Where a dis- relief, courts in trict court respect district denies a victim the CVRA Amy Wright provides erred. may petition

[T]he movant the court of A appeals for a writ of mandamus. The appeals may court of issue the writ on and, Amy petitioned for mandamus after single the order of a judge pursuant to relief, initially court denied her ap- this circuit rule or the Ap- Federal Rules of pealed from the district court’s restitution pellate Procedure. appeals The court of panel opinion Amy, order. In the up shall take application decide such granted rehearing court her mandamus on forthwith within 72 hours after the peti- inquiry, under our traditional mandamus tion has been filed. Dean, which this court held in In re (5th Cir.2008) 3771(d)(3); 3771(d)(5)(B) curiam), Id. (per see id. (requiring applies appeals petition under the the victim to CVRA. manda- mus within Amy, Amy, days). 636 F.3d at 197-98. In the fourteen The CVRA panel grants Government, declined to further the any decide whether the “[i]n case,” bring appeal entitled her to a in a ap- authority CVRA direct criminal the to 194-97, peal, though see id. at even “assert error Dean the district court’s denial seemingly argument. any right foreclosed that crime victim’s proceed- See the Dean, relates,” (rejecting ing 527 F.3d at to which appeal 394 victims’ the id. 3771(d)(4), assertion that the and makes governing standards an clear that “[n]oth- review). ing in this appeal apply chapter on CVRA asks shall be construed to impair prosecutorial the en banc court to construe the to CVRA discretion of the guarantee right Attorney crime victims the General appeal officer under his 3771(d)(6). alternatively direction.” Id. asks the court to hear her petition supervi- mandamus under our Amy’s argument effectively requires us sory power, mandamus which would hold first, to address questions: two whether petition her mandamus to a less onerous the CVRA entitles crime victims to an standard of review than requires. Dean second, appeal; and whether the CVRA entitles crime petitions victims’ mandamus through the review governing standards victims, First, grants appeal.

The CVRA crime an we observe that Amy, including right plain expressly grants to full and text of the “[t]he CVRA law,” timely provided only right restitution as 18 crime victims to mandamus 3771(a)(6), U.S.C. and makes relief and explicit any right makes no mention of victims, representatives, appeal. that crime their of crime victims to an under the CVRA. Dean, right appeal to 3771(d)(3); F.3d at similar U.S.C. (discussing F.3d at 195-96 contrast, Amy, the See grants the CVRA In (5th Briggs, 514 F.2d 794 while States v. right to mandamus United Government Cir.1975); Chagra, 701 to a States v. right United retaining the Government’s also Cir.1983)). 3771(d)(4) (5th (allowing The cases Id. F.2d 354 appeal. direct cites, however, They unconvincing. as error to “assert are only the Government any crime appeal pre denial of discrete non-parties court’s to the district allowed which to proceeding implications, in the constitutional right victim’s trial issues with relates.”). interpreting to the merits of appeal which were unrelated indication, statute, pre we contrary they absent from which arose. See criminal cases “legislated against Congress per that (holding sume that at 799 Briggs, 514 F.2d con legal traditional co-conspirators of our background as unindicted sons named Co., Gypsum v. States U.S. cepts,” standing challenge United had to in an indictment 437, 2864, 98 S.Ct. 438 U.S. jury charge to them power grand of a (1978), including that crime L.Ed.2d 854 indicting conduct without with criminal See Mari right appeal. no victims have them); (allowing at 360 Chagra, 701 F.2d Ortiz, 301, 304, 108 S.Ct. 484 U.S. no v. an reporter appeal and a newspapers (1988) (citing 98 L.Ed.2d restricting pretrial their access to order Jack, rel. Louisiana States ex These do hearing). reduction cases bail 61 L.Ed. proposition that not stand for (1917)) rule that (explaining that “[t]he any post-judg allowed victims court has lawsuit, that to a or those only parties and, moreover, do not right appeal ment an parties, may appeal properly become Congress draft support the inference judgment.”). adverse understanding with the ed the CVRA an any right appeal. victims had crime any language Amy fails to show suggests nothing in the CVRA Because Congress’ intent that reflects grant intended to crime vic Instead, Congress she principle. from this depart appeal or otherwise right tims the to an enact- that before the CVRA’s protests vary the rule that crime victims historical ment, from non- appeals this court heard right appeal, we con do not have the aspects a direct interest in parties with victims grants that the crime clude CVRA and contends prosecutions criminal the crime victims retain mandamus review.4 suggests that this appeal [purported direct was generally victim’s] favor a the our sister circuits 4. Six of appeal, reading no manda- of the statute that allows time as the [CVRA] filed at same issues, granted victims expressly has petition and no circuit the identical mus and raises right appeal an under the CVRA. to right appeal.”). there is no additional France, SA, States v. Alcatel-Lucent United supporting this conclusion is that Further 1301, (11th Cir.2012); United F.3d 1307 688 Act the Victim and Witness Protection under Monzel, 528, (D.C.Cir.), 533 v. 641 F.3d States (“VWPA”), predecessor in which the CVRA’s denied, Amy, Misty Por Victim in Child. cert. , optional rather than mandato- restitution was —U.S.-, 132 nography v. Series Monzel ry, court denied victims a at least one circuit 756, (2011); United 181 L.Ed.2d 508 S.Ct. in the right any relief because ”[n]owhere to 46, Aguirre-Gonzalez, 597 F.3d 53-56 States v. Congress suggest VWPA that the statute does Antrobus, 1123, (1st Cir.2010); In re 519 F.3d private provide victims with a was intended to Cir.2008); (10th Kenna v. U.S. Dist. 1128-30 remedy appeal restitution deci- Cir.2006); to sue or Court, 1011, (9th 1017 435 F.3d Mindel, 394, 555, v. 80 F.3d Co., United States sions.” Mgmt. W.R. Asset 409 re Huff Cir.1996). (9th Acker, logic extends This same (2d Cir.2005); 397 In re see also 562-63 370, (6th Cir.2010) ("[W]here right crime victims under the limit the to 596 F.3d 373

313 Next, we aspects consider whether the Certain of the CVRA convince requires appellate Congress CVRA nonetheless us that intended mandamus in to apply courts standard of review its traditional sense when it selected the governing appeal a direct criminal to man word Taylor, “mandamus.” See 495 U.S. 592, petitions, damus and conclude it does not. at 110 S.Ct. 2143. Reading stat assessing meaning provisions When of the term ute’s together, the CVRA seems CVRA, presume intentionally “mandamus” we to right limit victims’ to re “statutory that this term ... extraordinary its com view as an remedy ha[s] because meaning,” contrary mon-law absent indica it only authorizes review where a district States, tion. v. Taylor 495 court to fulfill statutory duty; U.S. fails 575, 592, 2143, 109 L.Ed.2d 607 statute right does not extend victims’ to (1990). Supreme explained has Court review to situations where a district court remedy Kerr, of mandamus is a dras acts on discretionary “[t]he matter. See one, 402, only extraordinary tic to be invoked 426 U.S. at 96 explain, S.Ct. To Court, situations.” Kerr v. Dist. eight rights U.S. 426 CVRA lists that it ensures 394, 402, 2119, victims, 96 48 U.S. S.Ct. L.Ed.2d crime including right to resti (1976); 3771(a)(1)-(8). 725 accord v. Cheney U.S. Dist. tution. 18 U.S.C. Court, 367, 380, 2576, statement, U.S. S.Ct. restrictive “A crime victim has (2004). 159 L.Ed.2d 459 following rights,” writ has precedes “[T]he the list of traditionally been used in the federal those rights supports the conclusion only ... compel courts to it to exercise its that the grant rights CVRA’s is exclu 3771(a). authority duty when it is its only do so.” sive. Id. And where the Kerr, at (quota U.S. 96 S.Ct. 2119 district court seeking denies a motion omitted). tion marks “[0]nly exceptional assert one of those rights does the CVRA circumstances amounting judicial to a allow a victim to seek the review of an 3771(d)(3). usurpation power justify appellate will the invoca court. See id. extraordinary tion of remedy.” Id. suggests granting This limitation that in omitted). (quotation relief, marks Mandamus the district court retains discretion traditionally “is not to be used as a substi appropriate select the means to ensure appeal, tute for an or to control the rights, may deci victims’ and that victims sion of the trial in discretionary properly court mat appellate seek intervention where Co., ters.” v. Plekowski Ralston-Purina the district court clearly fails to “exercise (5th Cir.1977). authority duty Issu its when it is its to do so.” Kerr, largely 2119; ance of the writ is a matter of See U.S. S.Ct. (“The Plekowski, discretion with peti the court to which the see also 557 F.2d at 1220 tion is Schlagenhauf remedy addressed. See of mandamus ... is not to be used Holder, n. ... control the decision of the trial (1964). 234, 13 matters.”). L.Ed.2d 152 discretionary court in Under only CVRA appeal to the mandamus relief that the simultaneously to a crime victim who clearly expresses. See id. petitioned for mandamus relief. See In re on, moreover, The cases relies Acker, further (6th Cir.2010). 596 F.3d 373 allowing appeal. Any § disfavor a per- Likewise, the Third Circuit’s decision allow- Siler, suasive force that In re 571 F.3d ing appeal, § a crime victim a without (6th Cir.2009) (allowing crime victims to Kones, any analysis, in United States v. appeal they sought under 1291 when (3d 1996), Cir. also fails to con- presentencing report subsequent use of a in a allowing vince crime us that victims a suit), may by civil have is undercut the Sixth’s appeal proper. is right Circuit later decision not to extend a appel in which very short timeline would only the Government reading, this act, that and the fact a seemingly even courts must appeal to late right a retain actions, judge may petition, see U.S.C. rule on a discretionary single circuit 3771(d)(4), appeal the could elect to in Congress that the conclusion confirm it exer- to the extent court’s order district appellate victims’ to limit crime tended to do discretion prosecutorial its own cises traditional man under the CVRA to relief 3771(d)(6). were to If we id. so. See 3771(d)(3). See 18 damus review. U.S.C. extending as instead read CVRA appellate reflect that requirements These victims, we would ex- right appeal quickly, but rare grant courts must relief crime victims granted rights pand remedy generally reserved ly, as “a drastic the CVRA’s at- simultaneously erode ‘extraordinary cases.” In re really for dis- the Government’s tempt preserve Cir.1983) (5th E.E.O.C., 709 F.2d reading A of the statute See id. cretion. Kerr, at (citing 426 U.S. to the appellate victims’ review that limits 2119). re- inquiry thus traditional mandamus Congress that Amy has failed to show preservation of both the CVRA’s spects anything grant crime victims intended to and the district court’s the Government’s mandamus relief un other than traditional safeguarding while traditional discretion While, insists, it grants. der CVRA.5 rights the limited CVRA an abuse of discretion stan- the CVRA’s has concluded Amy nevertheless insists that 5. govern peti- appeals CVRA mandamus that the courts of "take dard should requirements Huff, petition "ensure that re W.R. 409 F.3d at 562- up and decide” a tions. See In victim is afforded” all his or her divined a relaxed standard the crime 63. That court support recogniz- rights proceeding of the statute and express in a court from the terms right appeal an ing victims’ to an and disfavor is clear ... that a ”[i]t reasoned that provide interpretation seeking pursuant that would for tradi- petitioner relief to the man- review, typically 3771(d)(3) which is tional mandamus provision forth in damus set 3771(b)(1), discretionary. See 18 U.S.C. typically faced the hurdles need not overcome (d)(3). appellate courts by petitioner seeking of a district review however, petition, up and decide” a through "take a writ of manda- court determination period directly to the short time reasoning relates Id. at 562-63. The lack of mus.” Congress appellate courts to which directs accompanying Circuit’s use of a the Second act; period, time as we have al- this short to convince relaxed standard of review fails favors, ready opposes, explained, rather than anything traditional man- other than us supra. Similarly, mandamus. See the use of govern our review of damus standards should that fed- Amy fails to note that the command petitions. CVRA "ensure that the crime victim is eral courts provided for The Ninth Circuit also has rights within a section review, afforded” certain falls legal focusing error in relaxed 3771(b)(1). general.” "In id. labeled peti- reviewing a crime victim's mandamus context, language merely re- Placed justify this relaxed tion under the CVRA. To plain Congress’ review, make flects intention to emphasized that the Ninth Circuit specific, guard the but federal courts must gives aggrieved explicitly CVRA victims ”[t]he limited, necessarily rights spelled out in the right petition by a district court’s order through processes prescribed mandamus, its CVRA provides for review writ This does not other subsections. petition, allows a expedited review of such thereon, suggest grant mandamus in this that the single judge to make a decision argu- discretionary. Amy’s is not context the writ requires a reasoned decision case Kenna, unavailing. are ments But a denied.” suggests the Ninth Circuit's Amy's position decision Only support later two circuits closely interpretation in was influenced something Kenna is entitled to more that she and a desire to reach resembling appellate re- facts of that case direct standards of traditional mandamus analysis, question of law that its little the Second Circuit view. With

315 may be more difficult for a crime victim to more relaxed standard would afford relief rights through ap- case). enforce mandamus than in the circumstances of that limitation peal, express this reflects the Because we hold that the CVRA entitles language of the statute and honors the relief, Amy only mandamus we dismiss place common law tradition in when the appeal. her Under our traditional manda- CVRA was drafted. mus inquiry, grant we will Amy’s request- (1) ed mandamus if she has no other adequate means to attain the desired re- Our conclusion that the does CVRA (2) lief; she has demonstrated a clear and provide appellate crime victims with re indisputable right writ; to the issuance of a view does not Amy’s foreclose somewhat (3) discretion, and in the exercise of our we request different that we apply super our are satisfied that the writ is appropriate. visory power mandamus of review to her Dean, See 527 F.3d at 394. petition, mandamus which would lower the hurdles to relief under mandamus. See In B (5th 208, McBryde, re 117 F.3d Cir. 1997) (acknowledging that ap “courts of Wright appeals' from the district

peals possessed have power to issue court’s restitution order. This court re supervisory writs of mandamus in order to legality views the of the restitution order prevent practices posing severe threats to de novo. United States v. Arledge, 553 proper functioning judicial pro (5th Cir.2008). F.3d If the resti cess”); E.E.O.C., (in In re 709 F.2d at 395 legally tution order is permitted, we then allowing supervisory writ proceed as a review the amount of the order for an device, one-time-only this court advised it Id.; abuse of discretion. United States v. only grant would ifwrit “there is ‘usur Ollison, (5th Cir.2009). 555 F.3d pation judicial power’ or a clear abuse of discretion” and the movant showed it had a Ill writ) clear indisputable right to a (quoting Schlagenhauf, 379 at Amy’s To resolve petition mandamus 234). so, Even we need not Wright’s appeal, resolve we must first ascer- question. this Our inquiry traditional suf tain proof the level of required to award Amy fices to afford requests. the relief she restitution to and crime victims like Aguirre-Gonzalez, IV-A her under 18 parties’ U.S.C. 2259. The infra. Cf. (declining ques 53-56 to settle dispute turns on interpretation tion of standard of because review neither effect of the “proximate words result” in 2259(b)(3)(F). traditional mandamus standard nor a allowed; inquiry Stewart, question would not have presents. that later See In re case, (11th Cir.2008) explained ap- the Ninth Circuit (granting that it F.3d 1285 manda-

plies peti- its normal question test to CVRAmandamus person mus on of whether a was a tions, merely emphasizes question participate crime victim who could in district legal assessing right proceedings error in a crime reviewing victim’s court without tradi- Andrich, factors); Walsh, to relief. See In re tional mandamus In re (9th Cir.2011) curiam). (3d Cir.2007) (in dicta, (per Fed.Appx. 60-61 While agreeing asserts that two additional cir- with the Second and Ninth Circuits position, cuits favor her those courts have not that "mandamus relief is available under a different, clearly accepted position, her demanding, and it is unclear and less standard under they presented would do so if appropriate 18 U.S.C. 3771 in the circum- stances.”). opportunity fully analyze legal issues 316 Only apply principles after we of

A construction, statutory including the can with the analysis begins again Our construction, conclude that ons of Watt, 451 See U.S. at text of the statute. legis ambiguous, may is we consult statute 1673; 265, 101 Rogers, 513 F.3d In re S.Ct. Jobs.com, Inc., history. lative Carrieri v. (5th Cir.2008). lan 212, §If 2259’s 225 Cir.2004). (5th 508, 393 F.3d 518-19 For is to our function” plain, is “sole guage statutory language ambiguous, to be how long its terms” so according it “enforce ever, susceptible it must be to more than text by the is disposition required “the as reasonable or more than interpretation one Trustee, 540 absurd.” Lamie v. U.S. accepted meaning. Id. at 519. Where one 534, 1023, 526, 157 L.Ed.2d 124 U.S. S.Ct. unambiguous, words of a are “the (2004)(internal marks omit quotation 1024 then, ‘judi first the last: this canon is also States, ted); Bates 522 see also v. United is inquiry complete.’” cial Conn. Nat’l 29, 285, 23, L.Ed.2d 215 118 S.Ct. 139 U.S. Germain, 249, 254, Bank v. 503 U.S. (1997) “ordinarily” (holding that courts (1992) 1146, 117 (quot L.Ed.2d 391 S.Ct. or reading should “resist words elements States, 424, ing Rubin v. United 449 U.S. on appear into a statute that do not its 698, (1981)). 430, 101 S.Ct. L.Ed.2d 633 face.”). Supreme explained has Court of 18 U.S.C. re “[statutory a construction ‘is holistic restitutionary purpose. flects a broad ” Bank Or. v. endeavor.’ U.S. Nat’l of 954, v. Laney, United States Am., Inc., Indep. Agents Ins. 508 U.S. of (“Section (9th Cir.1999) phrased 2259 is 439, 455, 2173, 113 S.Ct. 124 L.Ed.2d 402 terms, generous compensate in order to (1993) (quoting Savings Ass’n of the victims of sexual abuse for the care Assocs., Tex. v. Timbers Forest Inwood term required long address the effects 626, Ltd., 365, 371, 484 U.S. 108 S.Ct. abuse.”); their v. United States Cran (1988)). L.Ed.2d 740 “This natural Court (“Con 122, 126 (3d Cir.1999) don, 173 F.3d ly congressional not review enact does gress 2259] mandated broad restitu [in panel grammarians; ments as but victim.”). 2259(a) tion for a minor Section regard ordinary principles neither do we mandates district courts “shall order English prose as to a construc irrelevant this chap offense under tion of those enactments.” Flora Unit ter,” including the to which offense Paro States, ed 362 U.S. Wright pled guilty, line and 18 U.S.C. (1960). mean Although L.Ed.2d 623 “the 2259(b)(1) specifies 2252. Section that a ing of a statute will heed the typically restitution order direct the defen “shall ... a punctuation[,] pur commands of its pay dant to the victim ... the full amount analysis based ported plain-meaning of the victim’s losses.”6 necessarily is punctuation incomplete.” 2259(b)(3) Section defines the term “the Or., Bank at S.Ct. losses,” full amount of victim’s con- minimum,” analysis 2173. our “[A]t 2259(b)(1), §in tained as text, for a lan- “must account statute’s full [A]ny costs the victim for— incurred structure, guage punctuation, as well as (A) subject matter.” relating physical, Id. medical services care; psychological psychiatric, 2259(c). chapter.” an 6. A "individual harmed Id. “victim” of a crime under result commission of a (1973)). (B) occupational therapy or S.Ct. 36 L.Ed.2d 620 physical rehabilitation; statute, construing the the district court (C) expressed its concern that “a restitution necessary transportation, temporary order under section 2259 that is not housing, expenses; and child care limit- proximately by ed to losses (D) caused de- income; lost facts, fendant’s conduct would under most (E) fees, attorneys’ as well as other these, including violate the Eighth incurred; costs Amendment,” id. at an alter- (F) any by other suffered the vic- losses “interpretation native plainly would be in- proximate tim as a result of the offense. consistent with how the principles of resti- 2259(b)(4) Section reinforces that “[t]he historically tution and causation have been of a order under this issuance applied.” Id. at 790. In reversing the 2259(b)(4)(A), § mandatory,” section is id. district court’s holding, Amy panel re- may not and instructs that court de- “[a] jected a generalized proximate re- cline an to issue order under this section quirement and stressed that the causation (i) the economic circumstances because of— “victim,” in the definition of (ii) defendant; of the the fact that a together § 3664’s mechanism for has, to, victim or is entitled receive com- joint liability, and several any surmounts pensation injuries for his or her from the Eighth Amendment Amy, concerns. See proceeds insurance or other 636 F.3d at 200-01. 2259(b)(4)(B). guide source.” Id. To restitution, awarding the district courts in Paroline, Unlike district court in 2259(b)(2) instructs courts to issue and Wright district court seemed accept enforce restitution orders “in accordance Amy’s argument degree, to a limited itas with section in the 3664 and same manner awarded all of the request- restitution she as an order under 3663A.” ed for her future treatment and counsel- ing, and the costs of expert her witness B Although fees. the Wright panel accepted rejected The district court in Paroline Amy’s holding binding precedent as in re- Amy’s argument requires an viewing the district court’s restitution award of “the full amount of losses.” [her] award, concurrence, Wright’s special trac- Instead, resorting Supreme to the Court’s ing reasoning of the district court Railway, Light decision Porto Rico & Amy challenging panel’s decision Mor, 345, 348, Power Co. v. U.S. damages not to limit 2259 to (1920), 64 L.Ed. 944 which ex- actions, caused a defendant’s criminal plained that several words are “[w]hen presaged this en banc rehearing. See followed which is as applicable clause (Davis, J., Wright, 639 spe- 686-89 much to the first and other words as to cially concurring). last, the natural construction of the In this en banc rehearing, main- language demands that the clause be read mandatory tains that 2259 is a all,” applicable the district court ex- requiring district courts to award full res- the “proximate language tended result” 2259(b)(3)(F) titution to of child pornography. victims apply contained in view, (A) plain language In her the losses described in subsections (E). Paroline, statute dictates that the result through F.Supp.2d 2259(b)(3)(F) (also §in is limited to citing at 788 Fed. Mar. Comm’n Lines, Inc., 726, 734, category apply Seatrain of losses and does c described of losses categories to the 2259(b)(3)(A)-(E). contends Government § 2259 leads us to reading Our plain 2259(b)(3) a victim’s re- all of conditions Once a district following conclusion: that those showing on a losses coverable victim, is a person that a court determines the of- resulted from losses is, a result of harmed as that an “individual Railway, Porto Rico Drawing on fense. chap a crime” under the a commission of statutory that the asserts the Government exploitation to the sexual ter that relates intent to condition Congress’ reflects text children, requires § abuse of and showing of on a recoverable losses all restitution for that district court to order citing prece- to cause. Without proximate (b)(4)(A), 2259(a), § victim. See 18 U.S.C. dent, urges pre- us “to the Government (c). that follows The restitution order adhered to the usual Congress sume encompass “the full amount must to hold in the law of remedies: balance 2259(b)(1). Those Id. victim’s losses.” the losses fully accountable for defendants categories specific of losses include five but in a man- with their conduct associated physi related to losses—medical services deeply-rooted princi- respects ner that care; cal, psychological psychiatric, or The Govern- proximate causation.” ple of reha occupational therapy and physical nothing that there is ment further asserts bilitation; necessary transportation, tem Congress in the conclusion absurd housing, expenses; and childcare porary apply to limiting principle intended this income; attorney’s fees and lost Invoking a recent categories all of losses. of “other losses category costs—and one civil tort analyzing case Supreme Court proximate as a re by suffered the victim Employers’ Li- liability under the Federal 2259(b)(3). The Id. sult of the offense.” ability support proposition, in of this Act antecedent, recently ap rule of the last very that “the reasons Government in plied by Supreme Court Barnhart proximate-cause of a limitation is purpose 20, 26, 124 376, 157 Thomas, 540 S.Ct. U.S. liability.” infinite See CSX prevent (2003), that “a limit L.Ed.2d 333 instructs — McBride, -, Transp., Inc. v. “proxi such as the ing phrase,” clause or 2630, 2642, 180 L.Ed.2d 2259(b)(3)(F), phrase mate result” (2011). the court The Government advises ordinarily modifying be read as “should legislative into materials and delve that it immediate phrase the noun or that seven circuits have re- also stresses “[Tjhis rule is not an absolute ly follows.” jected Amy’s reading of the statute. assuredly be overcome other and can meaning,” “construing but a stat similarly “proxi construes the indicia Paroline ‘quite rule sensi ute in accord with the language mate result” the statute ” grammar.’ (quot Id. of other restitu ble as a matter of relies on the construction Bank, v. Am. Sav. 508 U.S. position. ing his Both Nobelman support tion statutes to 324, 330, 124 L.Ed.2d 228 legislative Wright Paroline and draw on Bryan (1993)); A. accord Antonin Scalia & drafting that in materials to assert Reading Interpretation incorporate proxi Garner, Congress intended Law: (2012)(“This rule is the Legal Texts requirement.7 mate cause materials, course, these Even if we were to consult consult these materi- 7. Of we cannot they 2259’s text is als unless we conclude are inconclusive at best. Carrieri, ambiguous. See 393 F.3d at 518-19. legal expression princi- guage of a commonsense demands that the clause be read as ple grammar”). applicable to all.” Id. at 40 S.Ct. 516. context, Deprived its Porto Rico Rail- structure way’s can support rule be contorted to 2259(b)(3) phrase limit the “suffered statutory interpretation urged by the Gov- the victim proximate as a result of the ernment apply “proximate result” 2259(b)(3)(F) offense” in to the miscella- 2259(b)(3)(F) language in to the five cat- neous “other losses” contained that sub- egories of loss precede it. But apply- section. We see no “other indicia of mean- ing require generalized that rule here to ing” suggest the statute to that the rule disregard cause would that of the last antecedent does not apply here. list in Porto Railway’s Rico statute is Despite See id. the clear terms of the significantly different than the one central statute, parties other courts and the before appeal. to this analyzed statute in arguments us raise in favor of a general- Railway Porto Rico long featured a sen- ized based tence, numbers, by letters, unbroken (a) (b) construction, statutory on canons of bullets, with complex two noun phrases (c) principles, traditional causation “or,” sandwiching conjunction the with the possible absurd results. We address —and modifier “domiciled in Porto Rico” follow- dismiss—each turn. ing conjoined phrases. the The structure of the sentence required reading the the a it; Supreme gave Court phrase the “domi- ciled in Porto Rico” modified the nouns at First, Government, Paroline, the Wright, the head of the phrases, two “citizens or Judge dissenting opinion press Davis’s subjects” Supreme and “citizens.” The importance the Railway Porto Rico expressed Court its concern that a differ- by other caselaw relied on the district ent construction would have left the reader however, court. As did the panel, we fragmented with a phrase, which would be doubt Porto Rico Railway’s applicability overly which, in application, broad here. Railway Porto Rico concerned the turn, satisfy would have failed to the stat- following statute: “Said District Court overarching purpose ute’s to curtail federal jurisdiction shall have of all controversies jurisdiction. courts’ See Porto Ry., Rico parties where all of the on either side of 348, at U.S. S.Ct. 516. controversy subjects the are citizens or states, 2259, contrast, foreign a state or or citizens of a begins Section with an state, territory, introductory or district of the phrase composed of a noun ____” (“‘full States not domiciled in Porto Rico and verb amount of the victim’s 346, Ry., Porto Rico at any U.S. losses’ includes costs by incurred ”) words, Supreme Court read the victim into that feeds a list of six for— Rico,” items, apply “not domiciled in Porto independent each of which are ob- equally subjects foreign jects to “citizens or of a complete phrase. Only that state, state or states” and “citizens of a limiting last of these items contains the territory, “proximate or district of the United States.” A result.” double- list, Id. at The Supreme opens sepa- S.Ct. 516. dash and semi-colons elements, explained, Court several words are rate leaving “When each of its 2259(b)(3) followed a clause which is applicable grammatical with a divided much to the first and other words as that to the structure does not resemble the stat- last, Railway, the natural construction of the lan- ute in Porto Rico with its flowing phrase the last catchall separa lacks distinct and concluded that

sentence course, intended all panel Congress we not sit “as indicated Of do tions. penalize only ongoing Flora, 150, activities to antitrust at 362 U.S. grammarians,” at (citing Id. 93 S.Ct. 1773 activities. ignore but we cannot 80 S.Ct. Statutory 2 J. Sutherland, typically of a will meaning “the & Statutes (3d ed.1943)). seq. 4908 et punctuation.” the commands of its heed Construction Here, statutory we do not face a scheme Or., 508 at 113 S.Ct. U.S. Bank of requires narrow construction. See grammatical dif 2173. The structural and Crandon, 126; Laney, 173 F.3d at the statute in between 2259 and ferences weight F.3d at 966. Seatrain’s inter- forcefully counsel Railway Rico Porto questionable 2259 is at best. preting Railway to Porto Rico against applying the Paroline current statute to reach rule Seatrain’s is at odds with rule reading.8 court’s district rely; of last antecedent on which we antecedent, moreover, provides rule of last Seatrain, the other case relied reading faithful to 2259’s broad resti- court, similarly inapplicable. district illustrate, tutionary purpose. To in Barn- Seatrain, 411 Thomas, Supreme hart v. Court re- anti- analyzed a federal 1773. Seatrain agency’s interpretation an viewed seven-catego- that included a trust statute that states statute 732, Id. at 1773. All ry list. 93 S.Ct. An to individual shall be determined be referred items on the list but the third only physical if disability under his or activity; category the ongoing seventh was impairment impairments mental or are any in category phrased a catchall as “or severity only of such that he is not un- exclusive, providing prefer- manner for an cannot, previous to do his able work but ential, arrange- cooperative working education, considering his and work age, 732-33, Id. at 1773. ment.” 93 S.Ct. The experience, engage in other kind urged Supreme Government the Court to of which exists gainful substantial work in concerning this third as category construe economy. the national 732, activity. a one-time Id. at 93 S.Ct. Barnhart, 23, argument The 540 124 rejected

1773. Court U.S. at S.Ct. 376 added). rule reading (emphases Applying because a broad of the statute the of antecedent, conflict with legal principle Supreme would the the last the Court are the in strictly antitrust laws construed. Id. held that words “which exists the 733, economy” in a at 93 S.Ct. 1773. To aid narrow national referred the statute, ap- “any gainful construction of the the Court other of substantial noun kind plied statutory previous the rule of construction and not to the noun “his work” 24-27, are to be read work.” Id. at 124 376. “[catchall] clauses as S.Ct. bringing categories Supreme within a similar of this the support holding, Court that the type specifically “any to those enumerated” reasoned other” words Further, Crandon, Railway reading Rico 8. Porto also commands our is correct. See 173 question that where the statute in ("Congress "manifests F.3d at 126 mandated [in 2259] general purpose application ... of victim.”); [and] broad restitution for a minor La- doubtful, the clause were we should so con- ("Section ney, 189 F.3d at 2259 general provision effectuate the strue as to terms, phrased generous in order to com- 348, Congress.” purpose of U.S. at pensate the of sexual abuse for victims 2259, grammar 516. viewed in S.Ct. long required to term care address the effects restitutionary light purpose § 2259's broad abuse.”). their terms, expressed by plain as its confirms that statutory rules of phrase “contrary expressed second did not show the construction necessary intention” to overcome the rule Railway Porto Rico and Seatrain con- apply phrase application of the last antecedent to firms that of the rule of the last 27-28, 124 to the first. Id. at S.Ct. 376. antecedent limit the result language to the subsection in which it is also the rule Supreme applied Court contained makes more sense here. See id. Immigration of last antecedent in Jama v. 26, Applying proxi- S.Ct. 376. 335, 125 Enforcement, & Customs 543 U.S. 2259(b)(3)(F) language mate result (2005) 694, 160 L.Ed.2d to a categories that precede it would a complete statute that included sentence the modifier “streteh[ ] too far” and disre- seven-category that fed into a list. Each 2259(b)(3) gard the structure of as writ- category punctuated on the list was with a Jama, 343, ten. 543 U.S. at 125 S.Ct. 694. only the period; category last on the list 340, 125 limiting contained a clause. Id. at At least agree three circuits that under Drawing grammatical S.Ct. 694. construction, statutory rules of we cannot list, structure of the Supreme Court read the “proximate result” language in applying limiting concluded that clause 2259(b)(3)(F) applying to the catego to the other items in the list “stretches 2259(b)(3)(A)-(E).10 ries of losses in modifier too far.”9 Id. at 125 S.Ct. United States v. Burgess, 684 F.3d (4th Cir.2012); 456-57 United States v. Aumais, (2d Cir.2011); 656 F.3d already explained,

As we have the gram- Monzel, 2259(b)(3) United States v. matical structure of reflects (D.C.Cir.), denied, Amy, cert. category the intent to read each Victim in loss Misty separate preceded Pornography from the one that Child Series v. it and Mon —zel, -, limit the application “proximate re- 2259(b)(3)(F). (2011). §in sult” L.Ed.2d 508 But ignore Com- we do not paring Supreme that other Court’s more recent circuits have used tools of statu articulations of the rule tory of the last anteced- construction to conclude that ent in Barnhart proximate and Jama to the older language result in Barnhart, provided activity Justice Scalia an ex- would occur. And even if their ample application ordinary of of this rule in only prevent damage, concern was to it aspect life that reveals the commonsensical does follow not from the fact that the same applying proximate the error result underlay specific interest both the and the 2259(b)(3)(F) language catego- §of to the five general prohibition proof impair- that precede ries losses that it: required ment of that interest is for both. Consider, example, parents for the case of parents, foreseeing that assessment of who, leaving teenage before their son alone activity "damaged” whether an had in fact weekend, him, in the house for the warn son, disputed by the house could be their punished you “You will party be if throw a might preclude argu- have wished to all engage any activity other that dam- by specifying categorically pro- ment and ages the house.” If the son nevertheless hibiting activity hosting party— one — party caught, throws a and is he should likely damage that was most to cause hardly punishment by be able to avoid ar- likely most to occur. guing damaged. that the house was not 27-28, 540 U.S. at 124 S.Ct. 376. (1) (2) parents proscribed party, any activity damages other that the house. circuits, approach 10. These whose we discuss said, appears they As far as from what opinion, inject later in this nevertheless prohibiting their reasons for the home- proximate statute with a party may nothing alone have had to do Monzel, through alternative means. See 641 instance, damage with to the house —for 535; Aumais, F.3d at 656 F.3d at 153. underage drinking risk or sexual

322 2259(b)(3) cause re proximate with a 2259(b)(3)(F) catego five to the applies it.11 See United Laney, 189 F.3d at 965. See preceded quirement. of loss that ries McDaniel, 1204, 1208- F.3d States v. 631 support in the statute to more Without v. La States (11th Cir.2011); United accept the Ninth analysis, we cannot Cir.1999). (9th 954, ney, F.3d To do so would con conclusion. Circuit’s circuits, however, con reached this These terms and be plain the statute’s tradict compel we do not find for reasons clusion See judicial redrafting. tantamount Circuit, example, Eleventh ling. The Naftalin, States v. Railway’s Rico rule without applied Porto (1979) L.Ed.2d 624 99 S.Ct. appli Supreme for the Court’s accounting (“The Congress did short answer is (ex supra of it. See IV-C-1-a cation way.”). The write the statute that not relying on the rule of the fault posing construction, properly statutory rules of Circuit, Railway). The Ninth Rico Porto prox to extend the applied, cannot be used moreover, of’ lan read the “as a result contained language imate result to § 2259’s definition of victim guage in 2259(b)(3)(F) categories of losses to the result” lan “proximate with the gether 2259(b)(3)(F) preceding it.12 §in to infuse all guage properly for the statute disagreement mean that our sent fails to account does not 11. This significantly dif- fraught opinion in that 2259's analysis with plain-meaning is Circuit, fering Ninth contexts. Like the am- ambiguity. This court considers a statute dissenting attempts en- opinion to cloak the subject biguous when a statute to more is re- tire statute with a causation interpretation one reasonable or more than Carrieri, quirement with scant and scattered meaning. accepted See than one language dissenting support; causal though we choose a at 518-19. Even language opinion applies also resorts to our sister course that differs from that of circuits, procedures with which restitution is to the authority judicial not a division of is improp- issued and enforced within ambiguous. enough to render a statute making erly position. While bolster its 50, 64-65, Koray, 515 U.S. Reno v. circuits, our sister the dissent- same errors as (1995) (discussing this 132 L.Ed.2d 46 why ing opinion explain not the rule of does lenity). Any principle in context of rule of apply. position Its last antecedent does not agreement "seeming on a standard our [in ultimately unpersuasive. harmony suggests more than circuits] sister Judge dissenting opinion Southwick's does Kearney, United States v. there is." agree Judge analysis, it Davis's but (1st Cir.2012). has The First Circuit similarly to the would resort correctly that the various circuits observed require proximate 3663A to applied proximate cause test to simi- have dissenting opinions The are cor- causation. lar, facts, yet differing reached if not identical § "[a]n rect that 2259 directs that order of entirely explained outcomes that "cannot be section shall be issued restitution under this by in the of record.” See id. differences facts in accordance with section 3664 and enforced Monzel, (con- Compare 641 F.3d at 537-40 under section in the same manner as an order cluding proximate but re- cause shown Judge dissenting opin- Southwick’s 3663A." manding amount of harm so to determine the require appli- construes this ion McDaniel, caused) at 1209 631 F.3d "a of 3663A's definition of victim as cation clearly (holding that the court did not district directly proximately a person harmed as cause) finding proximate with McGari- err in of an offense for result of the commission (concluding ty, F.3d at 1267-70 may which restitution be ordered." Con- established), proximate Au- cause was not gress' rely procedures directive to mais, (same), and F.3d at 154-55 Kenne- guiding of a resti- issuance and enforcement (same). dy, 643 F.3d at 1263-65 order, however, require does not us to tution by Judge dissenting opinion rely authored definition of "victim” 12. The on the substantive separate when majority analysis’s incon- contained in a Davis criticizes the different, Railway. already supplied courts with a sistency with Rico Like the has Porto Circuit, however, victim. Judge dis- broader definition of Eleventh Davis’s (2d b 6.4, ed.2003)). at nal Law posited D.C. court that “[although Next, we consider the Government’s as- statute, 2259 is a criminal it functions principles liability sertion that of tort limit much by like a tort statute directing the the award of restitution under 2259 to court to make a victim for whole losses proximately losses caused a defendant’s responsible caused party,” see id. at criminal actions. At least three of our 536 n. nothing and found in the text of accepted sister circuits have this view and § 2259 indicating Congress’ intent elimi- proximate requirement derived a not nate “the ordinary requirement of proxi- from “the catch-all provision Rather, mate cause.” Id. at “[b]y 2259(b)(3)(F), but rather tradi- [from] defining person ‘victim’as a harmed ‘as a principles tional of tort and criminal law ” offense,’ result of the defendant’s 2259(c)’s definition of ‘victim’ [from] court inferred that “the statute invokes the anas individual harmed ‘as a result’ of the standard rule a defendant is hable Monzel, defendant’s offense.” 641 F.3d at only for harms that he proximately 535; 457-58; Burgess, accord at caused.” Id. The D.C. Circuit worried Aumais, 153; 656 F.3d at Kearney, see limitation, that without such a “liability (“It 672 F.3d at 96-97 is clear to us that injuries would attach to all sorts of a de- Congress intended some causal link be- cause, might indirectly fendant no matter sup- tween the losses and the offense to how ‘remote’ or tenuous the causal connec- restitution.”); port the mandated United tion.” Id. at 537. (6th Evers, States v. rejected D.C. Circuit ex- view Cir.2012) (adopting proximate a cause re- pressed by the In re panel, Unknown quirement declining but to decide between explaining Congress that “[h]ad meant to circuits). approaches the two of our sister abrogate requirement the traditional Monzel, States v. case catch-all, everything but surely it springboard has served as a for other cir- way would have found a clearer of doing evaluating cuits the D.C. Circuit so.” Id. at 536-37. The D.C. Circuit criti- explained that is a bedrock rule of “[i]t cized this court’s decision in because tort and criminal law that a both defendant ‘general’ requirement “a causation without is liable for he harms subsidiary proximate require- causation caused,” and “a [pre- restitution statute all”; hardly requirement ment is “[s]o sumably] incorporates the traditional re- long injury as the victim’s would have quirement cause unless there offense, occurred but for the defendant’s good Congress reason to think intended the defendant would inju- be liable for the Monzel, not to apply.” ry.” Id. at 537 n. 8. The circuits that (footnote omitted) (cit- 641 F.3d at 535-36 adopted have the D.C. Circuit’s view have Wayne ing R. pursued a similar line of reasoning. We LaFave, Substantive Crimi- Lastly, Judge dissenting opinion injury. Davis's the victim’s indivisible While the dis- holding, claims that under our "if were attempts by adopting sent to correct this error injured way in an automobile accident on the so, theory, doing a collective causation it session, counseling damages to a those would unnecessary resorts to an source in order to be included in a restitution award.” This is graft upon clearly-worded the statute a causa- majority opinion suggests. not what the requirement. Ultimately dissenting tion the Rather, majority artificially the di- refuses to opinion’s errors arises from its confusion of responsibility vide for a crime victim’s losses inquiry the "victim” which is antecedent here, in circumstances like these where multi- the calculation of "total losses.” ple realistically responsible defendants are

324 (“[T]he 438, 2864); failure however, see id. 98 S.Ct. reasoning, accept not

do unambiguously explicitly and Congress proxi- with a the statute inject refuse to required mens rea is whether on tradi- to indicate based cause mate back- from this signal departure not liability. does principles tional law.”). of our criminal assumption ground that explained has Court Supreme reading “resist “ordinarily” should we mind, the D.C. principles With these into a statute that do words or elements § which infuses 2259 analysis, Circuit’s Bates, at 522 U.S. face.” on its appear not cause re generalized proximate with a 29, Supreme the Court 285. But 118 S.Ct. 535, Monzel, at quirement, see cer the absence of that explained has also Supreme the comport could with Court’s does not neces in a statute language tain §if interpretative guidance only— intended courts Congress sarily mean that of causal limitations. See U.S. were naked princi background disregard traditional Co., 437, at 438 U.S. S.Ct. Gypsum Co., at 438 U.S. Gypsum See U.S. ples. assessing whether But it is not. 2864. illustrate, with 437, To 2864. 98 S.Ct. proximate a broad Congress intended in the of intent respect question to the limitation, ignore that we cannot cause Act, of the Sherman provisions criminal requirements, yet causal expresses that explained has Supreme Court points: to two discrete isolates them ... of intent [in omission “[M]ere an “individual definition of victim as as elimi- will not be construed statute] a commission of a harmed as a result of from the crimes de- that element nating crime,” “any other and the limitation nounced”; Congress pre- will be instead “proximate to those that are the losses” legislated against have sumed to of the offense.” See 18 U.S.C. result con- legal of our traditional background (c) added). 2259(b), Had (emphases fac- render intent a critical cepts which language omitted all causal Congress tor, contrary direction and “absence of the full amount of required award with wide- be taken as satisfaction [will] losses, proximate result positioned definitions, depar- not as a ly accepted to all apply so that it would ture from them.” losses, we could consider the categories of Congress intended to bind 437, possibility Moris- (quoting Id. at 98 S.Ct. 2864 States, 246, 263, categories all of losses with sette v. U.S. United Instead, (1952)). Congress re requirement. In inter- L.Ed. 288 “proximate cause” using phrase in a sisted the omission of intent different preting including anywhere statute, Supreme Court cautioned 2259(b)(3)(F) required further simple more than the omission “far the “full amount of the statutory def- court to order phrase from appropriate See id. The selective necessary justi- victim’s losses.”13 inition offense] [of require omission of causal require- a mens rea inclusion and fy dispensing with” subsections, States, together ments in 2259’s U.S. Liparota ment. away ordinary from language pointing with 85 L.Ed.2d 434 causation, (1985) Congress intended suggest Gypsum, (quoting U.S. offense”) contrast, of an as a result of the commission restitution statutes 13. In stark other requirements 2259(c) (defining causation contain more forceful a victim as "the id. lacking Compare that are a result of a commission individual harmed as 3663A(a)(2) (explaining a victim U.S.C. crime”). of a directly proximately harmed person and is "a from, incorporate, rather than should be allocated depart among offend several ers.”). proximate By cause. generalized focusing question tradition of on the cause, proximate our sister circuits have not render the interpretation This does § not made easier to apply and problem seeming unworkable. The seemingly ignored have 2259 has in other circuits inter- to animate the cases armed courts with tools to award restitu proximate preting require 2259 to tion because it instructs courts to refer to responsibility how to allocate for a vic- is the standards under 3664.14 See id. any single tim’s harm to defendant. See 2259(b)(2) (“An order of restitution un 459-61; Aumais, Burgess, 684 F.3d at der this section shall be issued and en 153-54; Kennedy, 643 F.3d at forced in accordance with section in 1265-66; Monzel, 641 F.3d at 537-40. the same manner as an order under sec however, ignore, courts that decid- These 3663A.”). tion ing pay that a defendant “must restitution (whether for proxi- the losses he caused Section 3664 instructs that may courts not),” mately or how the “by does resolve enforce a restitution order all other means,” court “determines how those losses should available and reasonable id. 3664(m)(1)(A)(ii), be allocated in cases where more than one and offers a “means” injecting offender caused the stat- to aid in awarding courts in them”— way ute with traditional causation that would ensure that receives losses, limitations takes courts no closer to deter- the full amount of her to the extent mining pay possible, what each defendant must or ensuring while also that no defen supplying crime victims with the “full dant responsibility bears more than is re Burgess, amount of quired joint losses.” for full [their] restitution: and sever J., (Gregory, F.3d at 462 in al concurring liability. Where “the court finds more part, in in dissenting part, concurring and than 1 defendant has to the contributed (“The 3664(h) judgment) victim,” question of whether a loss of a instructs that proximately injury may defendant caused some “the court make each defendant liable entirely separate question is from the payment for of the full amount of restitut joint how those caused losses ion.”15 liability and several then, Any possible difficulty ordering unambiguous, restitu- statute are this first can- tion in these cases arises not from the statuto- 'judicial inquiry on is also the last: is com- construction, ry type ”); but from the of crime plete.’ Amy, see also In re 591 F.3d at 797 underlying appeals. quite possible J., these It (Dennis, dissenting) ("Congress intended that no other crime is like the crime of distri- ample generous to afford child victims and bution, receipt, possession por- of child restitution, protection judge- not to invite nography punishable under 2252: No other patently made limitations at odds with the single jointly crime involves victims harmed purpose legislation."). of the acting independently defendants in the country. Burgess, (Greg- See 684 F.3d at 461 Judge dissenting opinion points 15. As Davis’s J., ory, concurring part, dissenting part, out, 3664(h) fully reads: concurring judgment) (discussing If the court finds that more than 1 defen- indivisibility injury to victims of child victim, crimes). Yet, dant has contributed to the loss of a pornography unique factual may the court make each defendant liable undergirds application scenario that payment of the full amount of restitution this restitution statute need not muddle our may apportion liability among analysis. interpret We cannot this statute to defen- plain dants to the level contribution to unsupported reach a result its terms. reflect Germain, 503 U.S. at 112 S.Ct. 1146 the victim’s loss economic circum- Rubin, (quoting 449 U.S. at stances each defendant. 698) added). (explaining (emphasis that where "the words of a 3664(h), are unwarranted. under pressed in circum well these applies mechanism (“While See, 684 F.3d at 458 e.g., Burgess, are Amy like stances, victims where from unlikely would be compensation full acting separately by defendants harmed defendant, any [the victim’s] individual single harm.16 See her a who have caused J., interpretation of the restitution proposed (Gregory, at 461 Burgess, 684 ultimate re- cap no on her places in dissenting part, concurring part, in her to recover the covery, and would allow (explaining concurring judgment) in over.”). many her losses times in amount of liability described joint several “ liability does joint ... in The use of and several long been available § 3664 ‘has may “recover more actors, Amy not mean that acting inde negligent which two [rather,] another, once she col- by a her total loss: caused than of one pendently amount of her losses from one lects the full plaintiff.’”) harm to the single indivisible Responsibilities defendant, longer recover from she can no (quoting Tort Law: J., (Gregory, con- (John any other.” Id. at 462 Goldberg et al. C.P. Redress in & con- 2008)). part, dissenting part, in eds., although curring the D.C. Cir And curring judgment) (quoting ... in that it is “unclear has expressed Law, cuit Tort 517). liability may supra, be at and several joint whether separate in upon defendants imposed “reasonable provides Section cases,” Monzel, nothing against any theoretical means” defend it, expressly or forbids either result. See overcompensation that could fact that it con implication; the through 3664(m)(1)(A)(ii). First, if 18 U.S.C. supports this context its forms well to amount of her losses Amy recovers the full application. defendants, de from the Government and may use this information to ensure Amy and victims like her fendant

Any fears that seek further awards of through does not might overcompensated be 3664(e) (explaining See id. liability, several as ex- restitution. joint use of dissenting defendants Judge opinion would estimate of the number of future Davis's 3664(h) should be used to estimate a and awards portion of to allow read the italicized liability given percentage of overall to be the discretion to circumvent district courts puts particular defendant. That too much a crime victim 2259’s command to award weight Thus, on the interests of the defendants. his or her losses. the full amount of Over-compensation unlikely is an eventuali- under- 2259 dictates that the circumstances ty- pornography lying child convictions under liability permit division of 2252 do not Writing separately in the Fourth Circuit's opinion already explained; this has reasons 2259, Judge Greg- opinion analyzing § recent injury like suffer does not victims indivisibility pornogra- ory explained the capable produce a loss of division. See note phy victims' harms: ap- supra. criticism of this We echo the proach Judge dis- embodied in Southwick’s If caused vic- [a defendant] [a senting opinion: Amy]’s psychological injury, tim like light prosecu- unique nature of psychological injury is indivisible from the pornography and the clear tions of child injuries proximately the other caused awards, congressional maximize intent I do not believe a fact finder offenders. proper amount of doubts about meaningfully say precisely x amount could in favor of restitution should be resolved injuries psychological were [the victim]'s child____ [Judge watching I am concerned that by [the caused defendant’s emphasis on the discretion of a Davis’s] same video. J., accepting (Gregory, ... Burgess, district court tends towards F.3d at 461 concur- low, part, dissenting part, and concur- inappropriately ring even awards. nominal forward-looking ring judgment). accept I that a would Victims, course, may “[a]ny dispute that the court resolve tion. of are in the best proper type position as to the amount or of restitu to know what restitution they ... by preponderance tion of the evi have recovered and what restitution they dence.”). 3664(k) Second, § suggests yet a have to receive. In addition to infor ending victims, means for defendants’ existing joint mation obtained from the Govern obligations and several restitution may rely once ment on information maintained losses; by receives the full amount of her the probation office and other arms of court, it allows for a district “on its Department own of Justice to ensure motion, or the any party, motion of includ reported by that amounts a victim are victim, ing adjust payment may [to] accurate.19 Defendants dispute any schedule, require payment and, immediate requests, amounts these under full, 3664(e), as the justice require.” § interests of may the court “[a]ny resolve broadly phrased This subsection dispute proper seems to as to the type amount or of apply joint enable courts to and several ... by the preponderance of liability jurisdictions across it per because the evidence.”20 adjust mits those courts to restitution or c

ders as victims receive the full amount of concretely, their losses.17 More if Next, the Government asserts that not day one receives the full amount restitu restricting recovery by proxi- losses tion representing “full amount of [her] produces mate cause an absurd result— § losses” under district courts across implications constitutional that could be may the nation amend the judgments of § if avoided we were to read 2259 as re- defendants to reflect this fact under quiring proximate causation with respect 3664(k) by § terminating further restitu Lamie, categories to all of losses. See obligations.18 tion U.S. at 1023 (instructing circumstance, In either district courts must courts enforce a statute’s terms possession sup- must be in of evidence to long disposition required so as “the by the absurd.”). port entry of restitution or amendment of text is not Specifically, the judgments. the defendants’ There are Government is concerned that without a limitation, potential § several sources of this informa- 2259 could course, Amy may 17.Use of this mechanism does not violate 18. Of even while not collect 3664(f)(1)(B)’s may § entitled, command that courts than may more to which she is she receipt compensa consider victim’s certainly judgments obtain in excess of that determining tion from other “in sources Indeed, Amy already amount. has obtained § amount of restitution" because 2259 limits judgments exceeding $3.4 million. recovery a victim's to the full amount of his or 2259(b)(4)(B)'s her losses. Section similar in comprehensive 19. The information the Gov- may struction that a court not decline to issue provided regarding ernment has in this case a restitution order “because of ... the fact the restitution ordered in other cases involv- has, to, that a victim or is entitled receive ing Amy confirms the Government's access to compensation injuries for his or her from ... type of this information. any other source” reinforces conclusion. 2259(b)(4)(B), together Section read Nothing opin- or in this 3664(b), (f)(1)(B), mandatory reinforces the ion is intended to restrict the district court's by disallowing nature district ability to use other mechanisms available declining courts from to issue restitution to under order restitution in a manner simultaneously honoring crime victims while purposes. that effects 2259’s cap places recovery: on victims' the full amount of a victim's losses. victim). Furthermore, it sub- on definition challenged ground be under have al- punishment mechanisms which a defendant to excessive jects described, ready allay any been further Eighth Amendment. under the Fears over-punishment. concerns as prescribes Amendment Eighth punishment misplaced. over excessive are “[ejxcessive nor required, shall not be bail that imposed, Any nor cruel and un- concern individual defendants fines excessive restitutionary may greater inflicted.” U.S. Const. bear a burden punishments usual posits possessing that than others the Government convicted amend. VIII. text, moreover, plain images, to victim’s does not by giving effect the statute’s same Eighth the Eighth implicate court could cause Amendment Amendment expressed by threaten to create an absurd result. See problems similar to involving Arledge, crim- 553 F.3d is Supreme recent Court case at 899. Restitution gain; inal forfeiture: Where criminal forfeiture not tied to the defendant’s rather “so grossly disproportional long government be to the as the proved “would offense,” Supreme victim suffered the gravity [an] actual loss it Exces- pay, held that would violate the defendant has been ordered to Court Eighth proportional.” Amend- is Even sive Fines Clause of the restitution Id. Bajakajian, selectively imposed ment. United States v. 524 where a district court 321, 324, 2028, 118 141 L.Ed.2d on one not restitution co-defendant and (1998). another, this court treated this seem- has ing inequality being no conse- “of First, persuaded we are not that restitu- quence.” See id. v. (citing United States punishment subject tion to the same is (5th Cir.2006)) 830, Ingles, F.3d Eighth Amendment limits as criminal for- “a (explaining may district court con- remedial, purpose puni- feiture. Its is degrees responsibility sider the relative Webber, tive. See United States v. imposing of co-defendants in Cir.2008) (“Forfei- (7th F.3d 602-03 therefore, obligations and fact simple ture and restitution are distinct remedies. punishment that like imposed was not nature, Restitution is remedial in and its not offend the [the co-defendants] does goal is to restore the Forfei- victim’s loss. (internal quotation constitution” marks and ture, contrast, to punitive; is it seeks omitted)). Thus, citations fact that disgorge any profits that the offender real- defendants, some Wright, like Paroline and (citations activity.”) ized from his illegal jointly severally will be held for liable omitted); Taylor, see also States v. losses, of Amy’s the full amount while oth- Cir.2009) (“Restitu- (5th possessing er defendants convicted of operates tion make the victim of the (because, Amy’s images may not be whole.”). so, restricting crime Even example, the Government or does not “proximate result” to the catchall them) seek restitution from does not of- in which category appears open it does not Eighth fend the Amendment. See id. grossly disproportionate the door resti- court, way moreover, in a tution that would violate the can ameliorate Eighth Amendment. Section 2259 con- impact joint liability several on an pre- tains discrete limitations that by establishing pay causal individual defendant restitutionary right; cede the restitution ment schedule that corresponds to de See, arising ability e.g., Judg thus is limited losses out of a fendant’s to pay. 2259(c) injury. Wright, victim’s ment at No. U.S.C. United States (E.D.La. 2009) (ex- general (imposing causation Dec. 09-CR-103 of restitution “shall elaborated that plaining payment depicted “children in child may pornography while the defendant is incarcerated be considered to begin be the release, any unpaid balance victims of the crime of u]pon receiving por- child [and Norris, at a rate of paid per nography.” shall be United States v. $200.00 (5th Cir.1998). explaining further that “[t]he month” and logic This decrease, subject to increase or payment applies equal force to defendants who depending ability possess on the defendant’s child pornography: By possessing, 3664(e) (“The pay.”); receiving, see also 18 U.S.C. distributing pornogra- child demonstrating phy, burden of the financial re- collectively defendants create the de- sources of the defendant and the financial mand that fuels the creation of the abusive Thus, dependents, needs of the defendant’s shall images. where a defendant is con- defendant.”). be on the of possessing, victed receiving, or distrib- uting child pornography, person a is a Ultimately, imposition while the of full n victim under images this definition if the harsh, may appear restitution it is not possesses, receives, the defendant or dis- grossly disproportionate to the crime of tributes include those of that individual. receiving possessing pornogra- child phy. (rejecting Eighth id. at 899-900 Second, the district court must ascertain Cf. challenge imposition Amendment to the the full amount of the victim’s losses as restitution, full pursuant joint to and sev- § 2259(b)(3)(A)-(F), defined under limiting liability, Mandatory eral under Victims 2259(b)(3)(F) only § by the proximate re- Act, Restitution in context of mail fraud subsection, sult in that contained case). In light of restitution’s remedial and craft an guided by order the mecha- nature, § require- 2259’s built-in causal § nisms described in particu- with a ments, and the mechanisms described un- lar joint focus its mechanism for § any Eighth der we do not see liability. several any Amendment concerns here or other plain reading pro-

absurd results our IV duces. Having important resolved this issue statutory interpretation, apply we our 2 holding Amy’s to Wright’s mandamus and § Accordingly, we hold that appeal. requires a district court to engage two-step inquiry to award restitution A where it applies. determines First, the district court must determine our traditional inqui- Under mandamus person seeking ry, grant Amy’s whether a restitution is a we will petition for man- (1) is, crime victim under 2259—that “the damus if she adequate has no other (2) relief; individual harmed as a result of a commis means to attain the desired she sion of a crime under this chapter.” indisputable 18 has demonstrated a clear and 2259(c). (3) writ; Supreme right Court to U.S.C. has the issuance of a discretion, acknowledged that “[t]he distribution of the exercise of our we are satis- photographs depicting and films sexual ac appropriate fied that the writ is in these Dean, tivity by juveniles intrinsically is related to circumstances. See 527 F.3d at 394. children,” noted, Supreme the sexual abuse of New York v. As the Court has the “hur- Ferber, 747, 759, mandamus, limiting S.Ct. dles” use of “however (1982), and this court demanding, insuperable.” Cheney L.Ed.2d 1113 has are not Court, B 367, 381, 542 U.S.

v. U.S. Dist. (2004). 2576, 159 L.Ed.2d Turning Wright’s appeal, Amy to is eli- as a gible for restitution “victim” of easily the first conclude that We images Wright’s possessing crime of of her we held that met. Because have prong is eligible abuse for reasons she the same is crime limits victims’ relief CVRA as a Paroline’s crime. supra victim of See remedy, Amy has no other mandamus legal was therefore for the IV-A. It review obtaining of the district means for restitution Amy. district court to order not to order restitution. court’s decision at 897 Arledge, (reviewing See are II-A. We also satisfied supra the restitution legality order de novo). appropriate that writ is these circum Wright’s appeal therefore neces- expressly sarily The CVRA authorizes stances: focuses on the amount the district award, mandamus, 3771(d)(3), court’s which we U.S.C. review for an of discretion. Id. satisfy would 2259’s abuse The dis- awarding restitution $529,661 Amy trict Next, court awarded add- restitutionary purpose. we broad Amy’s ing estimated future counseling Amy conclude that has “clear and indis expert costs the value of her witness putable” right light to restitution in of our fees. court did explain The district First, today. a “victim” holding why Wright required should not be pay 2259(c). under Paroline possessed losses requested, of the other least images, possession two of her his and the record does otherwise disclose images partly the of those formed basis the why court reduced the district Govern- Ferber, his conviction. See Amy’s ment’s full on request behalf. Be- Norris, 3348; 159 F.3d at cause order the district court’s of restitu- 929. Amy, as an “individual harmed as a § tion is at odds with seemingly 2259’s a result of commission of [Paroline’s] requirement Amy it award that the full § falling within scope, crime” 2259’s losses, amount of her we vacate the district § thus Kearney, a victim under 2259. See court’s remand for order and reconsidera- (“Any argument [Amy] F.3d at 94 tion of of this light opinion. restitution has not suffered harm as a result [Paro law.”). crimes defies both fact and line’s] V victim, Amy § required Because is a above, For we reject the reasons the award district court to her restitution approach circuits of our sister and hold for the “full amount of losses” as [her] no imposes generalized proxi 2259(b)(3). under defined Because the mate before a por child district court awarded it nothing, nography may recover victim clearly indisputably therefore erred. from a possessing images defendant her No matter what discretion the district abuse. We VACATE district courts’ possessed court and no matter how con judgments below and REMAND pro founding district court found it ceedings opinion.21 consistent with this was nothing. not free to leave DENNIS, Judge, concurring in Circuit remand, On the district court must enter part judgment: a reflecting restitution order the “full [Amy’s] light respectfully amount of losses” in of our I in the majority concur holdings today. opinion’s that the decision CVRA does not Amy’s portions motion to strike of the Gov- ernment’s brief is DENIED. Therefore, right crime victims a to a direct grant I concur in that part of the appeal rejection from a district court’s of majority’s judgment that vacates the dis- her claim for restitution under 18 U.S.C. trict judgments courts’ and remands the 2259; grants that the CVRA crime vic- cases to them for further proceedings. only right tims to seek traditional man- however, remanding, I would simply review; and that the grants damus CVRA direct proceed district courts to the government right to seek manda- issue and enforce the orders .restitution right mus and to retain its to a direct accordance with 18 U.S.C. 3664 and appeal. 3663A, 2259(b)(2). required by § Going agree majority I further with the forward, I believe it permit best to district neither the Government nor the victim is procedural courts to craft and substantive required prove that the victim’s losses devices for ordering restitution that would 2259(b)(3)(A)-(E) defined 18 U.S.C. take into account both the mandatory na- proximate were a result defendant’s ture of full restitution for crime victims crime; only “any it is other loss suffered under section 2259 and the mechanical dif- proved the victim” that must be to be crafting ficulties of orders given possi- “a result of the offense.” Id. bility multiplicitous liability among hun- 2259(b)(3)(F). 2259(c) Section defines dreds of defendants under circumstances “victim” as an “individual harmed as a may change over time. IWhile ad- result of a of a crime commission under mire majority’s provide effort to guid- chapter,” require but it does not ance to the district courts in their ex- that the showing victim’s losses included in tremely difficult molding task of 2259(b)(3)(A)-(E) “proximate be a result statutes, merging §§ these federal this, of the offense.” From I infer that the 3663A, into a legal, just, and places only slight burden predictable system, I believe that effort is government victim or the to show that the premature in this court at this time on the victim’s losses or in harms enumerated Rather, present record. I would leave the those plausibly subsections resulted from decision proceed as to how to under these the offense. showing Once that has been courts, may statutes to the district which made, view, in my presumption arises decide to take additional evidence and re- that those enumerated losses were the quire study briefing by parties and the offense, result of the which the assist them in these difficult cases. may defendant rebut with sufficient rele- vant and admissible evidence. DAVIS, Judge, W. EUGENE Circuit I Finally, agree majority’s with the con- in concurring part and dissenting part, clusion that where a defendant is convicted KING, joined by JERRY E. SMITH and possessing of child pornography, person GRAVES, Judges: Circuit is a images victim under the statute if the agree my I with colleagues major include those of that individual. these cases, ity I that we agree government grant that the and the should mandamus in In re entry victim have made a sufficient un- remand for of a restitu showing, defendant, tion agree rebutted that the victim award.1 I also that we should falling entitled to restitution of losses vacate Wright the award entered in 2259(b)(3)(A)-(E). under 18 U.S.C. for remand further consideration on the 1. Section 2259 directs courts to “order resti- District courts do not have discretion to make chapter.” tution for offense under this no award. and language The devil is in the of the structure of the stat- of the award.

amount however, majori- that details, disagree facially I with most utes at issue belie the ty’s position may that be awarded majority’s analysis. victims of the proximately restitution losses not in the my colleagues with disagree I offense caused conduct. Section respects: major in two majority governs mandatory restitution specifically proxi- I that the Although conclude 1. for crimes to the sexual awards related by the required proof mate cause A exploitation and of children. abuse can be satisfied restitution statutes provisions of make it number the statute cases, disagree I with the in these proof that of a connection is clear causal authorizes that the statute majority between the and the vic- required offenses any proof without restitution tim’s losses. caused the violation 2259(b)(2) expressly incorpo- Section victim’s losses. general procedures rates the majority I that the agree with the § 3664 18 U.S.C. and states “[a]n must enter a restitu- district court order of restitution this section shall under every offender against tion award with be issued enforced in accordance vic- possession convicted of 3664 in the manner as an section same image; but I dis- pornographic tim’s under Section order section 3663A.” majority that in cases agree 3664(e) states burden of demon- “[t]he two, where the of- such as these strating the amount the loss sustained fenses of violators contrib- multiple by a victim as a result shall offense damages, the dis- ute to victim’s attorney be on for the Government.” an trict court must enter award added). (emphasis for the full against each offender amount of victim’s losses. No language This of causa- requiring proof other circuit that has addressed 3664(e) tion from with the is consistent issue has such a one size adopted defining “victim” found all rule fea- fits for the restitution 2259(c), iswho defined as “the individual ture of the of an offender. sentence as a result harmed a commission ” Other given circuits have district (emphasis crime under this .... chapter courts discretion assess added). amount of the offend- the restitution 2259(a) Section the court states See, pay. e.g., er is ordered to Unit- any “shall order restitution for offense un- 445, ed States v. 684 F.3d Burgess, 2259(b)(3) chapter.” der this Section (4th Cir.2012); v. 460 United States that the are defined states victim’s losses (1st 81,

Kearney, 672 F.3d 100-01 by a proxi- as those suffered the victim “as Cir.2012); v. United States McGari- result of the The full text mate offense.” (11th 1218, ty, 669 1270 F.3d Cir. 2259(b)(3) is as of follows: 2012); Laney, v. 189 United States “full term amount of the victim’s [T]he Cir.1999). 954, (9th F.3d 967 by includes incurred any losses” costs victim for—

I. (A) relating physi- medical services THE STATUTES cal, care; psychiatric, psychological or bottom, (B) statutory interpreta- physical occupational therapy At this is a rehabilitation; case, I begin tion with a consideration 2259(b)(3)(F) (C) 2259(b)(3) necessary transportation, tempo- infuse all expenses; proximate requirement). care with a rary housing, and child (D) income; lost contrast, majority In concludes that (E) fees, once the district court attorneys’ as well as other determines that a (an a victim incurred; person is individual harmed as costs 2259) a result of an offense under (F) by any other losses suffered district court must order restitution with result proximate victim as proof out further of causation.2 offense. 2259(b)(3) majority’s reading of added). (emphasis patently inconsistent with the rule of statu we interpreting provision should tory interpretation announced Porto statutory the fundamental canon of follow Railway, Rico which makes it clear that Supreme established construction apply clause should be read to to all Railway, Light in Porto Rico & Court categories My of loss.3 conclusion that Mor, 345, Power Co. v. Railway's Porto Rico rule of interpreta (1920). 516, case, 64 L.Ed. 944 In that applies tion in this case is made even Court held that several words are “[w]hen clearer when we consider the multiple ref by a applicable followed clause which is erences in the statutes discussed above much to the first and other words as to the expressly reflecting Congressional intent last, the natural construction of the lan to require proof of causation. that the be guage demands clause read as The D.C. Circuit and other circuits have applicable to all.” Id. at 40 S.Ct. 516. is, reached the same conclusion—that Applying statutory this cardinal rule of requires proof proximate interpretation, I conclude that subsection cause—albeit a slightly different rea- (F)’s proximate “as a result of the offense” Monzel, soning. See United States v. language applies equally previous to the (D.C.Cir.2011); F.3d 535-37 losses, (A) subcategories five through (2d Aumais, (E). States 656 F.3d interpretation accepted by This was Cir.2011); Burgess, 684 F.3d at 459. The the Eleventh Circuit United States v. explained D.C. Circuit that it is (11th McDaniel, Cir.

2011) (“The phrase result ‘as bedrock rule of both tort and criminal equally applicable of the offense’ is to med law that a defendant is liable for costs, (“An income, attorneys’ ical lost fees harms he caused. es- ” ‘any (citing as it is to other losses.’ Porto sential element of plaintiffs cause of 516)); Ry., negligence, Rico 253 U.S. at action for or ... other tort, Laney, (reading see also is that there be some reasonable language the “as a result of’ 2259’s connection between the act or omission together damage definition victim with the of the defendant and the which “proximate plaintiff result” has suffered. This connec- 2259(b)(3) majority apparently separated by 2. The would hold that if are semicolons injured were in an automobile accident rather than commas. See In re Un session, way counseling the a known, on to those (5th Cir.2011). 199 Ei damages in a would be included punctuation acceptable ther device is an award. separating method of Bryan clauses. See A. Legal Style The Redbook: A Manual on Garner, persuaded by Amy’s attempt am 3. I not In re (2d. ed.2006). 1-15 distinguish the Rico Rail- to Porto way subcategories on the basis that by in caused losses before a restitu- the courts the victim’s usually tion is dealt part ‘proximate cause’ tion award can be entered of the is called terms of what defendant’s sentence.

(footnote omitted) (citation omitted) (quot II. Page

ing al., et Keeton Prosser W. at 263 the Law of Torts Keeton on CAUSATION (5th ed.1984)); Wayne also R. see LaFave, as the two cases before cases such 6.4, Law at 464 Substantive Criminal multiple this court the conduct of where (2d 2003) (“[For] crimes so defined as ed. collectively offenders causes the victim’s merely conduct a require not but also damages, the position I would follow advo- conduct, specified result of the defendant’s by by cated and adopted Government ‘legal’ ‘proximate’ be the or conduct must First and the Fourth Circuit Circuit result.”). “Thus, cause pre of the we will establish cause proximate element re- incorpo sume a restitution statute that Kearney, quired by F.3d at requirement proxi rates the traditional 98-99; 684 F.3d at Burgess, 459-60. Un- good mate there is cause unless reason to theory, der “collective causation” it is Congress think intended the requirement not necessary precise to measure dam- Monzel, at 536. apply.” F.3d ages each of the over 100 offenders caused. that text “nothing court found As the in Kearney First Circuit stated: 2259 leads structure of us to conclude exists where “Proximate cause the tortious negate intended to Congress the ordi conduct multiple actors has combined to nary proximate cause.” harm, bring if the about even harm suf- Id. plaintiff might fered be if the same have used analy Other circuits different one of the numerous tortfeasors had not ses all circuits to but confront this issue F.3d at committed the tort.” 672 98. The have interpreted using the statute as a court following relied on the statement of proximate connecting causation standard the rule from Prosser Keeton: to the losses. offense See United When the conduct of two or more actors (6th Evers, F.3d States v. 658-59 is so an event that related to their com- Cir.2012) (finding proximate cause re conduct, whole, bined viewed as a is a quirement declining to but choose whether event, but-for and applica- cause adopt the McDaniel or rationale Monzel tion of the but-for rule to each of them as they “complementary”); Kearney, are them, individually would absolve all of (adopting proximate F.3d the conduct of each is a cause in fact of cause but not specifying standard under the event. Crandon, what analysis); United States v. (3d supra, at 268. Cir.1999) 122, 125-26 (stating, al., Keeton et analysis, without requires The court further: explained damages proxi for losses suffered “as Proximate cause therefore exists offense”). mate result of the This circuit level, aggregate is and there no reason is the circuit that has interpreted lacking to find it on the individual level. and concluded (Third) Restatement Torts has not required by is the statute. recognized this: causation even exits reasons,

For the above I where conclude “none of the alternative causes itself, proof require together they statutes at issue that the sufficient but are offense conduct the harm. defendant’s sufficient” to cause Kearney, (quoting appropriate 672 F.3d at 98 case of entering an award Restate- Liability Physi- against single defendant for the full (Third) ment Torts: reporters’ amount of the victim’s losses even though cal and Emotional Harm (“[E]ven (2010); §id. cmt. a g. n. cmt. other offenders contributed these losses. agree an insufficient condition ... can be a factu- I also that in that circumstance the defendant can seek al cause of harm when it combines with contribution from oth jointly er offenders other acts to constitute a sufficient set to liable for the losses.4 harm.”)). We have allowed such cause contribution claims in analogous non-sex E.g., offender cases. agree I with the Government and the United States v. Arledge, 553 F.3d First and Fourth Circuits that this defini- (5th Cir.2008) (finding that defendant tion of in appropriate is could “seek contribution from his co-con this context and under this standard the spirators pay off the restitution award causation in both cases before and reduce the amount he personally us is satisfied. in the context of a

owe[d]” fraud scheme III. with multiple participants); accord United Martinez, States 610 F.3d OF THE AWARD AMOUNT (10th Cir.2010); United States v. New The most difficult issue in these cases— some, (4th Cir.2003). 340-41 multiple where violators combine to cause concluding that an award for the full damage young horrendous to a victim—is amount of the victim’s losses is required establishing some to guide standards 3664(h) the majority relies on pro- which setting district court in an appropriate res- vides: single titution award for the offender be- fore the court. If the court finds that more than 1 de- fendant has contributed to the loss of a I agree is a in both victim victim, may the court make each defen- (in cases before us. Defendant Paroline dant liable for payment of the full Amy) In re Wright pos- and defendant amount of may restitution or apportion Amy’s sessed pornographic images and the liability among the requires the court defendants reflect enter an the level contribution to the victim’s against award them. loss and economic circumstances of agree I is entitled to a restitu- each defendant. tion award from all of her offenders in a added). equal sum that is (emphasis to the amount of her majority simply 3664(h) total losses. ignores But eases such as these the second clause in em- multiple where phasized violators have contributed above. That subsection plainly (1) to the victim’s losses and one of those gives option the court the of either court, violators is before the I disagree assessing a restitution against award that the always single court must enter an award defendant in an amount that equal is (2) against single violator for the full to the victim’s total apportion- losses or amount of the victim’s losses. I agree ing liability among the defendants to re- 3664(h) gives the court the option flect each defendant’s level of contribution courts; argued 4. The authority Government that contribution ed in different but their apply would not context this because the point very directly thin and does not and, event, statute did not authorize it strongly support this view. apply among it would not defendants convict- 2259(b)(3) in taking any listed as well as other loss into consider- to the victim’s factors including losses suffered the defendant related to ation a number of each defendant. of this chapter. economic circumstances the conduct of the violators F.3d It McGarity, 669 at 1270. Accord In a as this where multiple case such Congress if surprising had would be individuals have been convicted contrib- all, option. After restitu- given courts this abuse, to uting her the district court has criminal tion of the defendant’s part is 3664(h) the discretion under either to 3664(h), consistent with sentence and enter an total award for the amount of her generally, gives the sentencing principles provable portion or losses some of those to fix the sen- sentencing judge discretion losses to the defendant’s in reflect role and on the facts circumstances tence based causing damage as well as the other defendant’s circum- surrounding surrounding circumstances. stances, and background, nature of his required The court is not See, district Burgess, at e.g., conduct. 684 F.3d justify any precision, award with absolute 460; 100-01; Kearney, 672 at but the the award 1270; amount of must have a at Laney, McGarity, predicate. determining factual whether does F.3d at 967. One size not fit all single it should cast defendant before any more than of a length context it for the total amount of the victim’s loss- prison or other feature of a sentence or in of a fixing es the amount smaller criminal sentence. award consider the court should all rele- majority I agree with the that the defen- including vant without facts limitation the us having dants in both cases before been following: violating convicted of U.S.C. pay Amy. must be ordered to restitution to 1. The of the egregiousness defendant’s ap- We leave the calculation of the should he including conduct whether in- was propriate against each award defendant abuse physical volved in the of this court in the first I district instance. victims, victim and or other whether court give following the district would he attempted personal to make contact general guidelines: with images victims whose he viewed possessed. recognize Amy’s must

The court aggregation losses are an the acts of the 2. For who possessed images defendants assault, person and filmed who abused her victim, consider the number of and those who distributed redistributed images viewed, possessed he and possessed her who images, and those those whether the defendant circulated or images. culpability liability The images to re-circulated those others. any one regarding restitution of defendant 3. The financial means of defendant Amy’s dependent part loss least ability satisfy an his award. played respect role that defendant may 4. The consider using court See, e.g., exploitation. Burgess, her $150,000liquidated damage civil award F.3d at 460. authorized 18 U.S.C. 2255 or a compute court should first the vic- The percentage guide fixing thereof as tim’s future losses on evi- probable based the amount of the award. damages likely dence of the she will incur may from the date of the defendant’s offense 5. court also consider as a guide foreseeable cases conduct into the future. awards made similar in this damage all circuit other circuits. court should consider items of 2259(b)(3)(F) Any other facts relevant to the defen- category modifies the of (F). See, level of contribution to the vic- loss described in e.g., dant’s Jama v. Immigration tim’s loss and economic circumstances Enforcement, Customs 335, 343, of the defendant. 543 U.S. (2005).

L.Ed.2d 708 IV. I Though agree majority with the in that respect, I persuasive reasoning find of CONCLUSION Second, Fourth, and D.C. that Circuits summary, grant I would mandamus causation deeply “is a rooted principle judgment and vacate the in In re tort both and criminal law that Congress that case to the remand district court to abrogate did not when it drafted 2259.” enter an princi- award consistent with the Aumais, United States v. 656 F.3d I ples outlined above. would also vacate (2d Cir.2011); Burgess, 684 F.3d at judgment Wright and remand for 457; Monzel, United States v. 641 F.3d of entry judgment consistent with the (D.C.Cir.2011). 535-36 In a similar guidelines. above vein, Supreme Court stated that ab sent “some indication congressional in SOUTHWICK, LESLIE H. Circuit tent, express implied,” will courts de Judge, dissenting: cline statutory to read federal crimes that are it, We confronted with a statute that fail to mention eliminating as the mens provide does not clear I join answers. rea that has been a hallmark in suggesting others it would be useful for of crimes since the Staples common law. Congress States, “to reconsider whether 600, 605-06, 2259 is v. United system compensating 1793, 128 (1994). the best the vic- S.Ct. L.Ed.2d 608 pornography tims of child offenses.” True, the positioning phrase Kennedy, States v. 643 F.3d “proximate solely result” within subsection (9th Cir.2011); also see United States (F) sign Congress could be a meant to (4th Burgess, Cir. damages eliminate causation for falling un- 2012). goal providing is clear: mean- (A)-(E). Any der subsections impli- such ingful restitution to victims of these defeated, thoroughly cation is though, crimes. How to order restitution in indi- First, provisions other of the statute. light goal vidual cases in of that is a diffi- recognized, D.C. Circuit has Section question. cult go calls for restitution to to a “victim” today crimes, Our task to effectuate of these a term defined as “the according congressional scheme to the de- individual harmed aas result of a commis- sign as best as we can discern it. Both of sion of a crime chapter.” under this Mon- zel, added). opinions ably the other have undertaken 641 F.3d at (emphasis Second, agree this difficult task. I with Judge the statute directs that an order of Davis that this circuit should not chart a restitution should be issued and enforced solitary rejects course that a causation re- “in the same manner as an order under 2259(b)(2). I quirement. why The reasons believe the section 3663A.” Sec- Under “ requires statute are person causation different tion 3663A ‘victim’ means a di- agree than he I expresses, though. rectly harmed as a result majority, relying on the last-anteced- of the commission of an offense for which 3663A(2). rule, phrase proximate may ent that the “as a restitution be ordered.” result of the offense” that is in Section The “as a result” from Section from the views emphasis a difference of mention explicit the more well as

2259 as I am con- Judge Davis. con- expressed 3663A harm in Section proximate the discretion emphasis his the text or struc- cerned that “nothing in me vince court, though clearly dis- affirmatively a district ture of the be exercised under negate exists and can Congress intended cretion indicates 3664, tends towards terms of Section ordinary requirement low, nomi- compensatory award of even accepting inappropriately an causation for 457; accept 684 F.3d at that a Burgess, I would not nal awards. damages.” Monzel, number of F.3d at 536. of the forward-looking estimate and awards should be defendants future proxi- contours of I understand of overall percentage estimate a used to in much the same mate-cause assigned particular defen- liability to be Davis, including his Judge manner as does weight much on the puts That too dant. See also causation.” analysis “collective of Over-compen- the defendants. interests of 81, 96- Kearney, 672 F.3d States v. United unlikely eventuality. it is an Were sation Cir.2012). (1st that the agree I also occur, point at that district courts then liability among “apportion[ing] of option evening up to shift to contri- might be able con- reflect the level of the defendants and future defendants. among past butions and economic the victim’s loss tribution to each defendant” belies circumstances of cause must be summary, proximate In calls that each case majority’s notion cau- principle aggregate shown and equal to the total loss in- for an award proving its exis- sation is the method 3664(h). Yet by a victim. curred statute, courts can By tence. district “mandatory” for all making restitution but damages all to each defendant award including pos- exploitation, these crimes to make lesser awards also have discretion pornogra- of child and distribution session that I explained. This means properly if ensuring “goal made its phy, Congress proceed- requiring additional agree with compensation” receive full that victims defendants, disagree but ings as to both 672 F.3d at 99. plain. Kearney, to im- required court is that each district award of the full amount pose need a restitution therefore reflect the Awards must damages. victims of these of- of to make whole the illustrates, suffering Amy’s fenses. As de- photographs and films

“distribution of juveniles in- activity by is

picting sexual to the sexual abuse

trinsically related Ferber, New York v. 458 U.S.

children.”

747, 759, 3348, 73 L.Ed.2d 1113

(1982). an indelible “rec- They constitute and the participation ord of the children’s America, UNITED STATES their harm to the child exacerbated Plaintiff-Appellee, circulation.” Id. prosecu- nature of light unique and the clear OLEO, Defendant-Appellant. pornography tions for child Juan DE awards, to maximize congressional intent 11-1360. No. amount of proper doubts about the of Appeals, States Court in favor of should be resolved Sixth Circuit. a matter largely This concern is the child.

Case Details

Case Name: United States v. Michael Wright

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 1, 2012

Citation: 697 F.3d 306

Docket Number: 09-41238, 09-4154 and 09-31215

Court Abbreviation: 5th Cir.