Lead Opinion
Circuit Judge, joined by CARL E. STEWART, Chief Judge, and E. GRADY JOLLY, EDITH H. JONES, EDITH BROWN CLEMENT, PRADO, OWEN, JENNIFER WALKER ELROD and HAYNES, Circuit Judges:
The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate l'esult” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.
This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)-(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion.
I
We review a set of appeals arising from two separate criminal judgments issued by different district courts within this circuit. Both appeals involve restitution requests by Amy, a young adult whose uncle sexually abused her as a child, captured his acts on film, and then distributed them for others to see. The National Center for Missing and Exploited Children, which reports that it has found at least 35,000
A
In the consolidated cases In re Amy,
In the case underlying Amy’s mandamus petition and appeal, Doyle Paroline (“Paroline”) pled guilty to 18 U.S.C. § 2252 for possessing 150 to 300 images of minors engaged in sexually explicit conduct. At least two images were of Amy. Pursuant to Amy’s right to restitution under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the Government and Amy moved the district court to order restitution under § 2259. Amy supported this request with her psychiatrist’s report, which itemized her future damages for specific categories of treatment and estimated total damages nearing $3.4 million.
The district court denied Amy restitution. United States v. Paroline,
Over one dissent, that panel denied her relief because it was not clear or indisputable that § 2259 mandates restitution irrespective of proximate cause. In re Amy,
B
In United States v. Wright,
The Wright panel first found that the appeal waiver in Wright’s plea agreement did not foreclose his right to appeal the restitution order. Wright,
This court held the mandates in both Amy and Wright. A majority of this court’s members voted to rehear these opinions en banc to resolve the question of how to award restitution under § 2259 and to address other related questions raised by these appeals. See In re Amy Unknown & United States v. Wright,
II
In rehearing Amy and Wright en banc, we address the following issues: (1)
A
Amy petitioned for mandamus and, after this court initially denied her relief, appealed from the district court’s restitution order. In the panel opinion in Amy, this court granted her mandamus on rehearing under our traditional mandamus inquiry, which this court held in In re Dean,
1
The CVRA grants crime victims, including Amy, “[t]he right to full and timely restitution as provided in law,” 18 U.S.C. § 3771(a)(6), and makes explicit that crime victims, their representatives, and the Government may move the district court to enforce that right. Id. § 3771(d)(1); see id. § 3771(e) (defining “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense.”). The CVRA further commands that “[i]n any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded [this right].” Id. § 3771(b)(1). Where a district court denies a victim relief, the CVRA provides that
[T]he movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.
Id. § 3771(d)(3); see id. § 3771(d)(5)(B) (requiring the victim to petition for mandamus within fourteen days). The CVRA further grants the Government, “[i]n any appeal in a criminal case,” the authority to “assert as error the district court’s denial of any crime victim’s right in the proceeding to which the appeal relates,” id. § 3771(d)(4), and makes clear that “[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” Id. § 3771(d)(6).
Amy’s argument effectively requires us to address two questions: first, whether the CVRA entitles crime victims to an appeal; and second, whether the CVRA entitles crime victims’ mandamus petitions through the review standards governing an appeal. First, we observe that the plain text of the CVRA expressly grants crime victims only a right to mandamus relief and makes no mention of any right of crime victims to an appeal. See 18
Amy fails to show any language in the statute that reflects Congress’ intent to depart from this principle. Instead, she protests that before the CVRA’s enactment, this court heard appeals from non-parties with a direct interest in aspects of criminal prosecutions and contends that this suggests that the crime victims retain a similar right to appeal under the CVRA. See Amy,
Certain aspects of the CVRA convince us that Congress intended mandamus in its traditional sense when it selected the word “mandamus.” See Taylor,
The very short timeline in which appellate courts must act, and the fact that a single circuit judge may rule on a petition, confirm the conclusion that Congress intended to limit crime victims’ appellate relief under the CVRA to traditional mandamus review. See 18 U.S.C. § 3771(d)(3). These requirements reflect that appellate courts must grant relief quickly, but rarely, as “a drastic remedy generally reserved for really ‘extraordinary cases.” In re E.E.O.C.,
Amy has failed to show that Congress intended to grant crime victims anything other than traditional mandamus relief under the CVRA.
2
Our conclusion that the CVRA does not provide crime victims with appellate review does not foreclose Amy’s somewhat different request that we apply our supervisory mandamus power of review to her mandamus petition, which would lower the hurdles to relief under mandamus. See In re McBryde,
Because we hold that the CVRA entitles Amy to only mandamus relief, we dismiss her appeal. Under our traditional mandamus inquiry, we will grant Amy’s requested mandamus only if (1) she has no other adequate means to attain the desired relief; (2) she has demonstrated a clear and indisputable right to the issuance of a writ; and (3) in the exercise of our discretion, we are satisfied that the writ is appropriate. See Dean,
B
Wright appeals' from the district court’s restitution order. This court reviews the legality of the restitution order de novo. United States v. Arledge,
Ill
To resolve Amy’s mandamus petition and Wright’s appeal, we must first ascertain the level of proof required to award restitution to Amy and crime victims like her under 18 U.S.C. § 2259. The parties’ dispute turns on the interpretation and effect of the words “proximate result” in § 2259(b)(3)(F).
Our analysis again begins with the text of the statute. See Watt,
Only after we apply principles of statutory construction, including the canons of construction, and conclude that the statute is ambiguous, may we consult legislative history. Carrieri v. Jobs.com, Inc.,
The language of 18 U.S.C. § 2259 reflects a broad restitutionary purpose. See United States v. Laney,
Section 2259(b)(3) defines the term “the full amount of the victim’s losses,” contained in § 2259(b)(1), as
[A]ny costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
Section 2259(b)(4) reinforces that “[t]he issuance of a restitution order under this section is mandatory,” id. § 2259(b)(4)(A), and instructs that “[a] court may not decline to issue an order under this section because of — (i) the economic circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.” Id. § 2259(b)(4)(B). To guide the district courts in awarding restitution, § 2259(b)(2) instructs courts to issue and enforce restitution orders “in accordance with section 3664 and in the same manner as an order under 3663A.”
B
The district court in Paroline rejected Amy’s argument that § 2259 requires an award of “the full amount of [her] losses.” Instead, resorting to the Supreme Court’s decision in Porto Rico Railway, Light & Power Co. v. Mor,
Unlike the district court in Paroline, the Wright district court seemed to accept Amy’s argument to a limited degree, as it awarded all of the restitution she requested for her future treatment and counseling, and the costs of her expert witness fees. Although the Wright panel accepted Amy’s holding as binding precedent in reviewing the district court’s restitution award, Wright’s special concurrence, tracing the reasoning of the district court in Amy and challenging the panel’s decision not to limit § 2259 to damages proximately caused by a defendant’s criminal actions, presaged this en banc rehearing. See Wright,
In this en banc rehearing, Amy maintains that § 2259 is a mandatory statute requiring district courts to award full restitution to victims of child pornography. In her view, the plain language of the statute dictates that the proximate result language in § 2259(b)(3)(F) is limited to that category of losses and does not apply
The Government contends that § 2259(b)(3) conditions all of a victim’s recoverable losses on a showing that those losses proximately resulted from the offense. Drawing on Porto Rico Railway, the Government asserts that the statutory text reflects Congress’ intent to condition all recoverable losses on a showing of proximate cause. Without citing to precedent, the Government urges us “to presume that Congress adhered to the usual balance in the law of remedies: to hold defendants fully accountable for the losses associated with their conduct but in a manner that respects the deeply-rooted principle of proximate causation.” The Government further asserts that there is nothing absurd in the conclusion that Congress intended this limiting principle to apply to all categories of losses. Invoking a recent Supreme Court case analyzing civil tort liability under the Federal Employers’ Liability Act in support of this proposition, the Government reasons that “the very purpose of a proximate-cause limitation is to prevent infinite liability.” See CSX Transp., Inc. v. McBride, — U.S. -,
Paroline similarly construes the “proximate result” language in the statute and relies on the construction of other restitution statutes to support his position. Both Paroline and Wright draw on legislative materials to assert that in drafting § 2259, Congress intended to incorporate a proximate cause requirement.
c
1
Our plain reading of § 2259 leads us to the following conclusion: Once a district court determines that a person is a victim, that is, an “individual harmed as a result of a commission of a crime” under the chapter that relates to the sexual exploitation and abuse of children, § 2259 requires the district court to order restitution for that victim. See 18 U.S.C. § 2259(a), (b)(4)(A), (c). The restitution order that follows must encompass “the full amount of the victim’s losses.” Id. § 2259(b)(1). Those losses include five categories of specific losses — medical services related to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and childcare expenses; lost income; and attorney’s fees and costs — and one category of “other losses suffered by the victim as a proximate result of the offense.” Id. § 2259(b)(3). The rule of the last antecedent, recently applied by the Supreme Court in Barnhart v. Thomas,
The structure and language of § 2259(b)(3) limit the phrase “suffered by the victim as a proximate result of the offense” in § 2259(b)(3)(F) to the miscellaneous “other losses” contained in that subsection. We see no “other indicia of meaning” in the statute to suggest that the rule of the last antecedent does not apply here. See id. Despite the clear terms of the statute, other courts and the parties before us raise arguments in favor of a generalized proximate cause requirement based on (a) canons of statutory construction, (b) traditional causation principles, and (c) possible absurd results. We address — and dismiss — each in turn.
a
First, the Government, Paroline, Wright, and Judge Davis’s dissenting opinion press the importance of Porto Rico Railway and other caselaw relied on by the district court. As did the Amy panel, however, we doubt Porto Rico Railway’s applicability here. Porto Rico Railway concerned the following statute: “Said District Court shall have jurisdiction of all controversies where all of the parties on either side of the controversy are citizens or subjects of a foreign state or states, or citizens of a state, territory, or district of the United States not domiciled in Porto Rico ____” Porto Rico Ry.,
Deprived of its context, Porto Rico Railway’s rule can be contorted to support the statutory interpretation urged by the Government and apply the “proximate result” language in § 2259(b)(3)(F) to the five categories of loss that precede it. But applying that rule here to require generalized proximate cause would disregard that the list in Porto Rico Railway’s statute is significantly different than the one central to this appeal. The statute analyzed in Porto Rico Railway featured a long sentence, unbroken by numbers, letters, or bullets, with two complex noun phrases sandwiching the conjunction “or,” with the modifier “domiciled in Porto Rico” following the conjoined phrases. The structure of the sentence required the reading the Supreme Court gave it; the phrase “domiciled in Porto Rico” modified the nouns at the head of the two phrases, “citizens or subjects” and “citizens.” The Supreme Court expressed its concern that a different construction would have left the reader with a fragmented phrase, which would be overly broad in application, and which, in turn, would have failed to satisfy the statute’s overarching purpose to curtail federal courts’ jurisdiction. See Porto Rico Ry.,
Section 2259, in contrast, begins with an introductory phrase composed of a noun and verb (“‘full amount of the victim’s losses’ includes any costs incurred by the victim for — ”) that feeds into a list of six items, each of which are independent objects that complete the phrase. Only the last of these items contains the limiting language “proximate result.” A double-dash opens the list, and semi-colons separate each of its elements, leaving § 2259(b)(3) with a divided grammatical structure that does not resemble the statute in Porto Rico Railway, with its flowing
Seatrain, the other case relied on by the district court, is similarly inapplicable. See Seatrain,
Seatrain’s rule is at odds with the rule of last antecedent on which we rely; the rule of last antecedent, moreover, provides a reading faithful to § 2259’s broad restitutionary purpose. To illustrate, in Barn-hart v. Thomas, the Supreme Court reviewed an agency’s interpretation of a statute that states
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
Barnhart,
The Supreme Court also applied the rule of last antecedent in Jama v. Immigration & Customs Enforcement,
As we have already explained, the grammatical structure of § 2259(b)(3) reflects the intent to read each category of loss separate from the one that preceded it and limit the application of the “proximate result” language in § 2259(b)(3)(F). Comparing the Supreme Court’s more recent articulations of the rule of the last antecedent in Barnhart and Jama to the older rules of statutory construction expressed in Porto Rico Railway and Seatrain confirms that application of the rule of the last antecedent to limit the proximate result language to the subsection in which it is contained makes more sense here. See id. at 26,
At least three circuits agree that under rules of statutory construction, we cannot read the “proximate result” language in § 2259(b)(3)(F) as applying to the categories of losses in § 2259(b)(3)(A)-(E).
Next, we consider the Government’s assertion that principles of tort liability limit the award of restitution under § 2259 to losses proximately caused by a defendant’s criminal actions. At least three of our sister circuits have accepted this view and derived a proximate cause requirement not from “the catch-all provision of § 2259(b)(3)(F), but rather [from] traditional principles of tort and criminal law and [from] § 2259(c)’s definition of ‘victim’ as an individual harmed ‘as a result’ of the defendant’s offense.” Monzel,
In United States v. Monzel, a case that has served as a springboard for other circuits evaluating § 2259, the D.C. Circuit explained that “[i]t is a bedrock rule of both tort and criminal law that a defendant is only liable for harms he proximately caused,” and “a restitution statute [presumably] incorporates the traditional requirement of proximate cause unless there is good reason to think Congress intended the requirement not to apply.” Monzel,
The D.C. Circuit rejected the view expressed by the In re Amy Unknown panel, explaining that “[h]ad Congress meant to abrogate the traditional requirement for everything but the catch-all, surely it would have found a clearer way of doing so.” Id. at 536-37. The D.C. Circuit criticized this court’s decision in Amy because “a ‘general’ causation requirement without a subsidiary proximate causation requirement is hardly a requirement at all”; “[s]o long as the victim’s injury would not have occurred but for the defendant’s offense, the defendant would be liable for the injury.” Id. at 537 n. 8. The circuits that have adopted the D.C. Circuit’s view have pursued a similar line of reasoning. We
The Supreme Court has explained that we “ordinarily” should “resist reading words or elements into a statute that do not appear on its face.” Bates,
“[M]ere omission ... of intent [in the statute] will not be construed as eliminating that element from the crimes denounced”; instead Congress will be presumed to have legislated against the background of our traditional legal concepts which render intent a critical factor, and “absence of contrary direction [will] be taken as satisfaction with widely accepted definitions, not as a departure from them.”
Id. at 437,
With these principles in mind, the D.C. Circuit’s analysis, which infuses § 2259 with a generalized proximate cause requirement, see Monzel,
This interpretation does not render the statute unworkable. The problem seeming to animate the cases in other circuits interpreting § 2259 to require proximate cause is how to allocate responsibility for a victim’s harm to any single defendant. See Burgess,
Section 3664 instructs that courts may enforce a restitution order “by all other available and reasonable means,” id. § 3664(m)(1)(A)(ii), and offers a “means” to aid courts in awarding restitution in a way that would ensure that Amy receives the full amount of her losses, to the extent possible, while also ensuring that no defendant bears more responsibility than is required for full restitution: joint and several liability. Where “the court finds more than 1 defendant has contributed to the loss of a victim,” § 3664(h) instructs that “the court may make each defendant liable for payment of the full amount of restitution.”
Any fears that Amy and victims like her might be overcompensated through the use of joint and several liability, as expressed under § 3664(h), are unwarranted. See, e.g., Burgess,
Section 3664 provides “reasonable means” to defend against any theoretical overcompensation that could result. See 18 U.S.C. § 3664(m)(1)(A)(ii). First, if Amy recovers the full amount of her losses from defendants, the Government and defendant may use this information to ensure that Amy does not seek further awards of restitution. See id. § 3664(e) (explaining
In either circumstance, district courts must be in possession of evidence to support entry of restitution or amendment of the defendants’ judgments. There are several potential sources of this information. Victims, of course, are in the best position to know what restitution they have recovered and what restitution they have yet to receive. In addition to information obtained from victims, the Government may rely on information maintained by the probation office and other arms of the U.S. Department of Justice to ensure that amounts reported by a victim are accurate.
c
Next, the Government asserts that not restricting the recovery of losses by proximate cause produces an absurd result— constitutional implications that could be avoided if we were to read § 2259 as requiring proximate causation with respect to all categories of losses. See Lamie,
The Eighth Amendment prescribes that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Government posits that by giving effect to the statute’s plain text, this court could cause Eighth Amendment problems similar to that expressed by a recent Supreme Court case involving criminal forfeiture: Where criminal forfeiture “would be grossly disproportional to the gravity of [an] offense,” the Supreme Court held that it would violate the Excessive Fines Clause of the Eighth Amendment. United States v. Bajakajian,
First, we are not persuaded that restitution is a punishment subject to the same Eighth Amendment limits as criminal forfeiture. Its purpose is remedial, not punitive. See United States v. Webber,
Any concern that individual defendants may bear a greater restitutionary burden than others convicted of possessing the same victim’s images, moreover, does not implicate the Eighth Amendment or threaten to create an absurd result. See Arledge,
The court, moreover, can ameliorate the impact of joint and several liability on an individual defendant by establishing a payment schedule that corresponds to the defendant’s ability to pay. See, e.g., Judgment at 7, United States v. Wright, No. 09-CR-103 (E.D.La. Dec. 16, 2009) (ex
Ultimately, while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography. Cf. id. at 899-900 (rejecting Eighth Amendment challenge to the imposition of full restitution, pursuant to joint and several liability, under Mandatory Victims Restitution Act, in context of mail fraud case). In light of restitution’s remedial nature, § 2259’s built-in causal requirements, and the mechanisms described under § 3664, we do not see any Eighth Amendment concerns here or any other absurd results that our plain reading produces.
2
Accordingly, we hold that § 2259 requires a district court to engage in a two-step inquiry to award restitution where it determines that § 2259 applies. First, the district court must determine whether a person seeking restitution is a crime victim under § 2259 — that is, “the individual harmed as a result of a commission of a crime under this chapter.” 18 U.S.C. § 2259(c). The Supreme Court has acknowledged that “[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children,” New York v. Ferber,
Second, the district court must ascertain the full amount of the victim’s losses as defined under § 2259(b)(3)(A)-(F), limiting only § 2259(b)(3)(F) by the proximate result language contained in that subsection, and craft an order guided by the mechanisms described in § 3664, with a particular focus on its mechanism for joint and several liability.
IV
Having resolved this important issue of statutory interpretation, we apply our holding to Amy’s mandamus and Wright’s appeal.
A
Under our traditional mandamus inquiry, we will grant Amy’s petition for mandamus if (1) she has no other adequate means to attain the desired relief; (2) she has demonstrated a clear and indisputable right to the issuance of a writ; and (3) in the exercise of our discretion, we are satisfied that the writ is appropriate in these circumstances. See Dean,
We easily conclude that the first prong is met. Because we have held that the CVRA limits crime victims’ relief to the mandamus remedy, Amy has no other means for obtaining review of the district court’s decision not to order restitution. See supra § II-A. We are also satisfied that a writ is appropriate in these circumstances: The CVRA expressly authorizes mandamus, 18 U.S.C. § 3771(d)(3), and awarding restitution would satisfy § 2259’s broad restitutionary purpose. Next, we conclude that Amy has a “clear and indisputable” right to restitution in light of our holding today. First, Amy is a “victim” under § 2259(c). Paroline possessed at least two of her images, and his possession of those images partly formed the basis of his conviction. See Ferber,
On remand, the district court must enter a restitution order reflecting the “full amount of [Amy’s] losses” in light of our holdings today.
B
Turning to Wright’s appeal, Amy is eligible for restitution as a “victim” of Wright’s crime of possessing images of her abuse for the same reasons she is eligible as a victim of Paroline’s crime. See supra § IV-A. It was therefore legal for the district court to order restitution to Amy. See Arledge,
V
For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion.
Notes
. Amy attested that this amount reflects the total amount of her losses from the production, distribution, and possession of the images of her abuse and primarily comprises costs for future psychological care and future lost income.
. Wright pled guilty pursuant to a plea agreement in which he generally waived his right to appeal but reserved his right to appeal "any punishment in excess of the statutory maximum.” Wright’s plea agreement stated that "the restitution provisions of Sections
The Government seeks to assert the appeal waiver Wright signed only if we hold that restitution is limited by proximate cause in all respects. It concedes, however, that Wright’s appeal waiver would not be valid if the en banc court holds that § 2259 lacks a proximate cause requirement that covers all categorfes of losses because Wright did not waive his right to appeal a sentence unbounded by a proximate cause limitation. Because we hold today that § 2259’s isolated "proximate result” language does not cloak all categories of losses with a proximate cause requirement, we need not further address the appeal waiver issue. We have repeatedly held that appeal waivers the Government does not seek to enforce are not self-enforcing and that the Government can effectively "waive the waiver.” See United States v. Acquaye,
. Six of our sister circuits generally favor a reading of the statute that allows no appeal, and no circuit has expressly granted victims the right to an appeal under the CVRA. See United States v. Alcatel-Lucent France, SA,
Further supporting this conclusion is that under the Victim and Witness Protection Act (“VWPA”), the CVRA’s predecessor in which restitution was optional rather than mandatory, at least one circuit court denied victims a right to any relief because ”[n]owhere in the statute does Congress suggest that the VWPA was intended to provide victims with a private remedy to sue or appeal restitution decisions.” United States v. Mindel,
The cases Amy relies on, moreover, further disfavor allowing a § 1291 appeal. Any persuasive force that In re Siler,
. Amy nevertheless insists that the CVRA’s requirements that the courts of appeals "take up and decide” a petition and "ensure that the crime victim is afforded” all his or her rights in a court proceeding support recognizing victims’ right to an appeal and disfavor an interpretation that would provide for traditional mandamus review, which is typically discretionary. See 18 U.S.C. § 3771(b)(1), (d)(3). The requirement that appellate courts "take up and decide” a petition, however, relates directly to the short time period in which Congress directs appellate courts to act; this short time period, as we have already explained, favors, rather than opposes, the use of mandamus. See supra. Similarly, Amy fails to note that the command that federal courts "ensure that the crime victim is afforded” certain rights falls within a section labeled "In general.” See id. § 3771(b)(1). Placed in context, this language merely reflects Congress’ intention to make plain that federal courts must guard the specific, but necessarily limited, rights spelled out in the CVRA through the processes prescribed in its other subsections. This language does not suggest that the grant of mandamus in this context is not discretionary. Amy’s arguments are unavailing.
Only two circuits support Amy's position that she is entitled to something more closely resembling direct appellate standards of review. With little analysis, the Second Circuit has concluded an abuse of discretion standard should govern CVRA mandamus petitions. See In re W.R. Huff,
The Ninth Circuit also has provided for relaxed review, focusing on legal error in reviewing a crime victim's mandamus petition under the CVRA. To justify this relaxed review, the Ninth Circuit emphasized that ”[t]he CVRA explicitly gives victims aggrieved by a district court’s order the right to petition for review by writ of mandamus, provides for expedited review of such a petition, allows a single judge to make a decision thereon, and requires a reasoned decision in case the writ is denied.” Kenna,
While Amy asserts that two additional circuits favor her position, those courts have not clearly accepted her position, and it is unclear that they would do so if presented with the opportunity to fully analyze the legal issues this question presents. See In re Stewart,
. A “victim” is an "individual harmed as a result of a commission of a crime under this chapter.” Id. § 2259(c).
. Of course, we cannot consult these materials unless we conclude that § 2259’s text is ambiguous. See Carrieri,
. Further, Porto Rico Railway also commands that where the statute in question "manifests a general purpose ... [and] the application of the clause were doubtful, we should so construe the provision as to effectuate the general purpose of Congress.”
. In Barnhart, Justice Scalia provided an example of application of this rule in ordinary life that reveals the commonsensical aspect of the error in applying the proximate result language of § 2259(b)(3)(F) to the five categories of losses that precede it:
Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, “You will be punished if you throw a party or engage in any other activity that damages the house.” If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house — for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact "damaged” the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity — hosting a party— that was most likely to cause damage and most likely to occur.
. These circuits, whose approach we discuss later in this opinion, nevertheless inject the statute with a proximate cause requirement through alternative means. See Monzel,
. This disagreement does not mean that our plain-meaning analysis is fraught with any ambiguity. This court considers a statute ambiguous when a statute is subject to more than one reasonable interpretation or more than one accepted meaning. See Carrieri,
. The dissenting opinion authored by Judge Davis criticizes the majority analysis’s inconsistency with Porto Rico Railway. Like the Eleventh Circuit, however, Judge Davis’s dissent fails to properly account for the statute in that opinion and § 2259's significantly differing contexts. Like the Ninth Circuit, this dissenting opinion attempts to cloak the entire statute with a proximate causation requirement with only scant and scattered causal language as support; the dissenting opinion also resorts to language that applies to the procedures with which restitution is issued and enforced within § 3664 to improperly bolster its position. While making the same errors as our sister circuits, the dissenting opinion does not explain why the rule of last antecedent does not apply. Its position is ultimately unpersuasive.
Judge Southwick's dissenting opinion does not agree with Judge Davis's analysis, but it would similarly resort to the language of § 3664 and § 3663A to require proximate causation. The dissenting opinions are correct that § 2259 directs that "[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A." Judge Southwick’s dissenting opinion construes this language to require application of § 3663A's definition of victim as "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered." Congress' directive to rely on the procedures guiding issuance and enforcement of a restitution order, however, does not require us to rely on the substantive definition of "victim” contained in a separate statute when § 2259 has already supplied courts with a different, broader definition of victim.
. In stark contrast, other restitution statutes contain more forceful causation requirements that are lacking in § 2259. Compare 18 U.S.C. § 3663A(a)(2) (explaining that a victim is "a person directly and proximately harmed as a result of the commission of an offense”) with id. § 2259(c) (defining a victim as "the individual harmed as a result of a commission of a crime”).
. Any possible difficulty in ordering restitution in these cases arises not from the statutory construction, but from the type of crime underlying these appeals. It is quite possible that no other crime is like the crime of distribution, receipt, and possession of child pornography punishable under § 2252: No other crime involves single victims harmed jointly by defendants acting independently in the country. See Burgess,
. As Judge Davis’s dissenting opinion points out, § 3664(h) fully reads:
If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.
(emphasis added).
In light of the unique nature of prosecutions of child pornography and the clear congressional intent to maximize awards, any doubts about the proper amount of restitution should be resolved in favor of the child____ I am concerned that [Judge Davis’s] emphasis on the discretion of a district court ... tends towards accepting inappropriately low, even nominal awards. I would not accept that a forward-looking estimate of the number of future defendants and awards should be used to estimate a percentage of overall liability to be given a particular defendant. That puts too much weight on the interests of the defendants. Over-compensation is an unlikely eventuality-
. Writing separately in the Fourth Circuit's recent opinion analyzing § 2259, Judge Gregory explained the indivisibility of pornography victims' harms:
If [a defendant] proximately caused [a victim like Amy]’s psychological injury, this injury is indivisible from the psychological injuries proximately caused by the other offenders. I do not believe a fact finder could meaningfully say precisely x amount of [the victim]'s psychological injuries were caused by [the defendant’s watching the same video.
Burgess,
.Use of this mechanism does not violate § 3664(f)(1)(B)’s command that courts may not consider a victim’s receipt of compensation from other sources “in determining the amount of restitution" because § 2259 limits a victim's recovery to the full amount of his or her losses. Section 2259(b)(4)(B)'s similar instruction that a court may not decline to issue a restitution order “because of ... the fact that a victim has, or is entitled to, receive compensation for his or her injuries from ... any other source” reinforces this conclusion. Section 2259(b)(4)(B), read together with § 3664(b), (f)(1)(B), reinforces the mandatory nature of § 2259 by disallowing district courts from declining to issue restitution to crime victims while simultaneously honoring the cap § 2259 places on victims' recovery: the full amount of a victim's losses.
. Of course, even while Amy may not collect more than to which she is entitled, she may certainly obtain judgments in excess of that amount. Indeed, Amy has already obtained judgments exceeding $3.4 million.
. The comprehensive information the Government has provided in this case regarding the restitution ordered in other cases involving Amy confirms the Government's access to this type of information.
. Nothing in § 2259, § 3664, or in this opinion is intended to restrict the district court's ability to use any other mechanisms available under § 3664 to order restitution in a manner that effects § 2259’s purposes.
. Amy’s motion to strike portions of the Government’s brief is DENIED.
Concurrence Opinion
concurring in part in the judgment:
I respectfully concur in the majority opinion’s decision that the CVRA does not
I further agree with the majority that neither the Government nor the victim is required to prove that the victim’s losses defined by 18 U.S.C. § 2259(b)(3)(A)-(E) were a proximate result of the defendant’s crime; it is only “any other loss suffered by the victim” that must be proved to be “a proximate result of the offense.” Id. § 2259(b)(3)(F). Section 2259(c) defines “victim” as an “individual harmed as a result of a commission of a crime under this chapter,” but it does not require a showing that the victim’s losses included in § 2259(b)(3)(A)-(E) be a “proximate result of the offense.” From this, I infer that the statute places only a slight burden on the victim or the government to show that the victim’s losses or harms enumerated in those subsections plausibly resulted from the offense. Once that showing has been made, in my view, a presumption arises that those enumerated losses were the proximate result of the offense, which the defendant may rebut with sufficient relevant and admissible evidence.
Finally, I agree with the majority’s conclusion that where a defendant is convicted of possessing child pornography, a person is a victim under the statute if the images include those of that individual. In these cases, I agree that the government and the victim have made a sufficient showing, unrebutted by the defendant, that the victim is entitled to restitution of losses falling under 18 U.S.C. § 2259(b)(3)(A)-(E). Therefore, I concur in that part of the majority’s judgment that vacates the district courts’ judgments and remands the cases to them for further proceedings.
In remanding, however, I would simply direct the district courts to proceed to issue and enforce the .restitution orders in accordance with 18 U.S.C. § 3664 and 3663A, as required by § 2259(b)(2). Going forward, I believe it best to permit district courts to craft procedural and substantive devices for ordering restitution that would take into account both the mandatory nature of full restitution for crime victims under section 2259 and the mechanical difficulties of crafting orders given the possibility of multiplicitous liability among hundreds of defendants under circumstances that may change over time. While I admire the majority’s effort to provide guidance to the district courts in their extremely difficult task of molding and merging these federal statutes, §§ 2259, 3663A, and 3664, into a legal, just, and predictable system, I believe that effort is premature in this court at this time on the present record. Rather, I would leave the decision as to how to proceed under these statutes to the district courts, which may decide to take additional evidence and require study and briefing by the parties to assist them in these difficult cases.
Concurrence Opinion
concurring in part and dissenting in part, joined by KING, JERRY E. SMITH and GRAVES, Circuit Judges:
I agree with my colleagues in the majority that we should grant mandamus in In re Amy and remand for entry of a restitution award.
I disagree with my colleagues in the majority in two major respects:
1. Although I conclude that the proximate cause proof required by the restitution statutes can be satisfied in these cases, I disagree with the majority that the statute authorizes restitution without any proof that the violation proximately caused the victim’s losses.
2. I agree with the majority that the district court must enter a restitution award against every offender convicted of possession of the victim’s pornographic image; but I disagree with the majority that in cases such as these two, where the offenses of multiple violators contribute to the victim’s damages, the district court must enter an award against each offender for the full amount of the victim’s losses. No other circuit that has addressed this issue has adopted such a one size fits all rule for the restitution feature of the sentence of an offender. Other circuits have given the district courts discretion to assess the amount of the restitution the offender is ordered to pay. See, e.g., United States v. Burgess,684 F.3d 445 , 460 (4th Cir.2012); United States v. Kearney,672 F.3d 81 , 100-01 (1st Cir.2012); United States v. McGarity,669 F.3d 1218 , 1270 (11th Cir. 2012); United States v. Laney,189 F.3d 954 , 967 (9th Cir.1999).
I.
THE STATUTES
At bottom, this is a statutory interpretation case, and I begin with a consideration of the structure and language of the statutes at issue that facially belie the majority’s position that victims may be awarded restitution for losses not proximately caused by offense conduct. Section 2259 specifically governs mandatory restitution awards for crimes related to the sexual exploitation and abuse of children. A number of provisions in the statute make it clear that proof of a causal connection is required between the offenses and the victim’s losses.
Section 2259(b)(2) expressly incorporates the general restitution procedures of 18 U.S.C. § 3664 and states that “[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.” Section 3664(e) states that “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government.” (emphasis added).
This language requiring proof of causation from § 3664(e) is consistent with the language defining “victim” found in § 2259(c), who is defined as “the individual harmed as a result of a commission of crime under this chapter .... ” (emphasis added).
Section 2259(a) states that the court “shall order restitution for any offense under this chapter.” Section 2259(b)(3) states that the victim’s losses are defined as those suffered by the victim “as a proximate result of the offense.” The full text of § 2259(b)(3) is as follows:
[T]he term “full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
(emphasis added).
In interpreting this provision we should follow the fundamental canon of statutory construction established by the Supreme Court in Porto Rico Railway, Light & Power Co. v. Mor,
In contrast, the majority concludes that once the district court determines that a person is a victim (an individual harmed as a result of an offense under § 2259) the district court must order restitution without further proof of causation.
The majority’s reading of § 2259(b)(3) is patently inconsistent with the rule of statutory interpretation announced in Porto Rico Railway, which makes it clear that the clause should be read to apply to all categories of loss.
The D.C. Circuit and other circuits have reached the same conclusion — that is, that § 2259 requires proof of proximate cause — albeit by a slightly different reasoning. See United States v. Monzel,
a bedrock rule of both tort and criminal law that a defendant is only liable for harms he proximately caused. (“An essential element of the plaintiffs cause of action for negligence, or ... any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called ‘proximate cause’
(footnote omitted) (citation omitted) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 263 (5th ed.1984)); see also Wayne R. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003) (“[For] crimes so defined as to require not merely conduct but also a specified result of conduct, the defendant’s conduct must be the ‘legal’ or ‘proximate’ cause of the result.”). “Thus, we will presume that a restitution statute incorporates the traditional requirement of proximate cause unless there is good reason to think Congress intended the requirement not to apply.” Monzel,
Other circuits have used different analyses but all circuits to confront this issue have interpreted the statute as using a proximate causation standard connecting the offense to the losses. See United States v. Evers,
For the above reasons, I conclude that the statutes at issue require proof that the defendant’s offense conduct proximately caused the victim’s losses before a restitution award can be entered as part of the defendant’s sentence.
II.
CAUSATION
In cases such as the two cases before this court where the conduct of multiple offenders collectively causes the victim’s damages, I would follow the position advocated by the Government and adopted by the First Circuit and the Fourth Circuit to establish the proximate cause element required by § 2259. Kearney,
When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to each of them individually would absolve all of them, the conduct of each is a cause in fact of the event.
Keeton et al., supra, § 41, at 268.
The court explained further:
Proximate cause therefore exists on the aggregate level, and there is no reason to find it lacking on the individual level. The Restatement (Third) of Torts has recognized this: causation exits even where “none of the alternative causes is sufficient by itself, but together they are sufficient” to cause the harm.
I agree with the Government and the First and Fourth Circuits that this definition of proximate cause is appropriate in this context and under this standard the causation requirement in both cases before us is satisfied.
III.
AMOUNT OF THE AWARD
The most difficult issue in these cases— where multiple violators combine to cause horrendous damage to a young victim — is establishing some standards to guide the district court in setting an appropriate restitution award for the single offender before the court.
I agree that Amy is a victim in both cases before us. Defendant Paroline (in In re Amy) and defendant Wright possessed Amy’s pornographic images and the statute requires the court to enter an award against them.
I agree that Amy is entitled to a restitution award from all of her offenders in a sum that is equal to the amount of her total losses. But in eases such as these where multiple violators have contributed to the victim’s losses and only one of those violators is before the court, I disagree that the court must always enter an award against that single violator for the full amount of the victim’s losses. I agree that § 3664(h) gives the court the option in the appropriate case of entering an award against a single defendant for the full amount of the victim’s losses even though other offenders contributed to these losses. I also agree that in that circumstance the defendant can seek contribution from other offenders jointly liable for the losses.
In concluding that an award for the full amount of the victim’s losses is required the majority relies on § 3664(h) which provides:
If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.
(emphasis added). The majority simply ignores the second clause in § 3664(h) emphasized above. That subsection plainly gives the court the option of either (1) assessing a restitution award against the single defendant in an amount that is equal to the victim’s total losses or (2) apportioning liability among the defendants to reflect each defendant’s level of contribution
I agree with the majority that the defendants in both cases before us having been convicted of violating 18 U.S.C. § 2252 must be ordered to pay restitution to Amy. We should leave the calculation of the appropriate award against each defendant to the district court in the first instance. I would give the district court the following general guidelines:
The court must recognize that Amy’s losses are an aggregation of the acts of the person who abused and filmed her assault, those who distributed and redistributed her images, and those who possessed those images. The culpability and liability for restitution of any one defendant regarding Amy’s loss is dependent at least in part on the role that defendant played with respect to her exploitation. See, e.g., Burgess,
The court should first compute the victim’s probable future losses based on evidence of the damages she will likely incur from the date of the defendant’s offense conduct into the foreseeable future. The court should consider all items of damage listed in § 2259(b)(3) as well as any other losses suffered by the defendant related to the conduct of the violators of this chapter.
In a case such as this where multiple individuals have been convicted of contributing to her abuse, the district court has the discretion under § 3664(h) either to enter an award for the total amount of her provable losses or some portion of those losses to reflect the defendant’s role in causing the damage as well as the other surrounding circumstances.
The district court is not required to justify any award with absolute precision, but the amount of the award must have a factual predicate. In determining whether it should cast the single defendant before it for the total amount of the victim’s losses or in fixing the amount of a smaller award the court should consider all relevant facts including without limitation the following:
1. The egregiousness of the defendant’s conduct including whether he was involved in the physical abuse of this victim or other victims, and whether he attempted to make personal contact with victims whose images he viewed or possessed.
2. For defendants who possessed images of the victim, consider the number of images he possessed and viewed, and whether the defendant circulated or re-circulated those images to others.
3. The financial means of the defendant and his ability to satisfy an award.
4. The court may consider using the $150,000 liquidated civil damage award authorized by 18 U.S.C. § 2255 or a percentage thereof as a guide in fixing the amount of the award.
5. The court may also consider as a guide awards made in similar cases in this circuit and other circuits.
IV.
CONCLUSION
In summary, I would grant mandamus and vacate the judgment in In re Amy and remand that case to the district court to enter an award consistent with the principles outlined above. I would also vacate the judgment in Wright and remand for entry of judgment consistent with the above guidelines.
. Section 2259 directs courts to “order restitution for any offense under this chapter.” District courts do not have discretion to make no award.
. The majority would apparently hold that if Amy were injured in an automobile accident on the way to a counseling session, those damages would be included in a restitution award.
. I am not persuaded by In re Amy’s attempt to distinguish the statute in Porto Rico Railway on the basis that the subcategories of § 2259(b)(3) are separated by semicolons rather than commas. See In re Amy Unknown,
. The Government argued that contribution would not apply in this context because the statute did not authorize it and, in any event, it would not apply among defendants convicted in different courts; but their authority on this point is very thin and does not directly and strongly support this view.
Dissenting Opinion
dissenting:
We are confronted with a statute that does not provide clear answers. I join others in suggesting it would be useful for Congress “to reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses.” United States v. Kennedy,
Our task today is to effectuate the scheme according to the congressional design as best as we can discern it. Both of the other opinions have ably undertaken this difficult task. I agree with Judge Davis that this circuit should not chart a solitary course that rejects a causation requirement. The reasons why I believe the statute requires causation are different than he expresses, though. I agree with the majority, relying on the last-antecedent rule, that the phrase “as a proximate result of the offense” that is in Section 2259(b)(3)(F) only modifies the category of loss described in (F). See, e.g., Jama v. Immigration and Customs Enforcement,
Though I agree with the majority in that respect, I find persuasive the reasoning of the Second, Fourth, and D.C. Circuits that causation “is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259.” United States v. Aumais,
True, the positioning of the phrase “proximate result” solely within subsection (F) could be a sign that Congress meant to eliminate causation for damages falling under subsections (A)-(E). Any such implication is thoroughly defeated, though, by other provisions of the statute. First, as the D.C. Circuit has recognized, Section 2259 calls for restitution to go to a “victim” of these crimes, a term defined as “the individual harmed as a result of a commission of a crime under this chapter.” Monzel,
I understand the contours of this proximate-cause requirement in much the same manner as does Judge Davis, including his analysis of “collective causation.” See also United States v. Kearney,
Awards must therefore reflect the need to make whole the victims of these offenses. As Amy’s suffering illustrates, the “distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children.” New York v. Ferber,
In light of the unique nature of prosecutions for child pornography and the clear congressional intent to maximize awards, any doubts about the proper amount of restitution should be resolved in favor of the child. This concern is largely a matter of a difference of emphasis from the views expressed by Judge Davis. I am concerned that his emphasis on the discretion of a district court, though clearly that discretion exists and can be exercised under the terms of Section 3664, tends towards accepting inappropriately low, even nominal awards. I would not accept that a forward-looking estimate of the number of future defendants and awards should be used to estimate a percentage of overall liability to be assigned a particular defendant. That puts too much weight on the interests of the defendants. Over-compensation is an unlikely eventuality. Were it to occur, then at that point district courts might be able to shift to evening up contributions among past and future defendants.
In summary, proximate cause must be shown and the principle of aggregate causation is the method for proving its existence. By statute, district courts can award all damages to each defendant but also have discretion to make lesser awards if properly explained. This means that I agree with requiring additional proceedings as to both defendants, but disagree that each district court is required to impose a restitution award of the full amount of damages.