United States v. Unknown (In re Unknown), No. 09-41238

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGARZA
PartiesIn re: AMY UNKNOWN, Petitioner UNITED STATES OF AMERICA, Plaintiff - Appellee DOYLE RANDALL PAROLINE Defendant - Appellee v. AMY UNKNOWN, Movant - Appellant UNITED STATES OF AMERICA Plaintiff - Appellee v. MICHAEL WRIGHT Defendant - Appellant
Docket NumberNo. 09-31215,No. 09-41238,09-41254
Decision Date01 October 2012

In re: AMY UNKNOWN, Petitioner
UNITED STATES OF AMERICA, Plaintiff - Appellee
DOYLE RANDALL PAROLINE Defendant - Appellee
v.
AMY UNKNOWN, Movant - Appellant
UNITED STATES OF AMERICA Plaintiff - Appellee
v.
MICHAEL WRIGHT Defendant - Appellant

No. 09-41238
09-41254
No. 09-31215

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Dated: October 1, 2012


Appeals from the United States District Courts

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for the Eastern District of Texas
and the Eastern District of Louisiana

Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH, GARZA, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, and GRAVES, Circuit Judges.1

GARZA, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, JONES, CLEMENT, PRADO, OWEN, ELROD, and HAYNES, Circuit Judges:

The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant's criminal acts proximately caused a crime victim's losses before the district court may order restitution, even though that statute only contains a "proximate result" requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court's award of restitution to a victim's losses 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.

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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 images of Amy's abuse among the evidence in over 3,200 child pornography cases since 1998, describes the content of these images as "extremely graphic." The Government reports that restitution has been ordered for Amy in at least 174 child pornography cases across the United States in amounts ranging from $100 to $3,543,471.

A

In the consolidated cases In re Amy, 591 F.3d 792 (5th Cir. 2009), and In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011), a panel of this court reviewed Amy's mandamus petition and appeal, both of which challenged the district court's order denying Amy restitution in connection with a criminal defendant's sentence.

In the case underlying Amy's mandamus petition and appeal, Doyle Paroline ("Paroline") pled guilty to 18 U.S.C. § 2252 for possessing 150 to 300

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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.2

The district court denied Amy restitution. United States v. Paroline, 672 F. Supp. 2d 781, 782 (E.D. Tex. 2009). The district court held that § 2259 required the Government to prove that by possessing images depicting Amy's sexual abuse, Paroline proximately caused the injuries for which she sought restitution. Id. at 791. Concluding that the Government failed to show this causal link, the district court denied Amy restitution. Id. at 793. Amy petitioned for mandamus, asking this court to direct the district court to order Paroline to pay her the full amount of the restitution she had requested.

Over one dissent, that panel denied her relief because it was not clear or indisputable that § 2259 mandates restitution irrespective of proximate cause. In re Amy, 591 F.3d at 794-95. Amy sought rehearing and filed a separate notice of appeal from the district court's restitution order; her mandamus petition and appeal were consolidated. See In re Amy Unknown, 636 F.3d at 192-93. The panel assigned to hear Amy's appeal granted her rehearing request. Id. at 193. That panel then granted mandamus and rejected a requirement of proof of proximate cause in § 2259 because "[i]ncorporating a proximate causation requirement where none exists is a clear and indisputable error," but declined to reach the question of whether crime victims such as Amy

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have a right to an appeal. Id. at 193, 201. The panel remanded for the district court's entry of a restitution order. Id. at 201.

B

In United States v. Wright, 639 F.3d 679 (5th Cir. 2011), a separate panel of this court heard the appeal of Michael Wright ("Wright"). Like Paroline, Wright pled guilty to 18 U.S.C. § 2252 for possession of over 30,000 images of child pornography, which included images of Amy's abuse.3 The Government sought restitution for Amy under § 2259, supporting its request with the same psychiatric report Amy provided in Paroline's case. The district court awarded Amy $529,661 in restitution, explaining that "[t]his amount was reached by adding the estimated costs of the victim's future treatment and counseling at $512,681.00 and the costs of the victim's expert witness fees at $16,980.00."

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Judgment at 6-7, United States v. Wright, No. 09-CR-103 (E.D. La. Dec. 16, 2009). The district court did not explain why it awarded no restitution for the other amounts that Amy had requested and made no reference to a proximate cause requirement. See id. Observing that Amy had been awarded restitution in another district court, the district court further explained that "[t]he restitution ordered herein is concurrent with any other restitution order either already imposed or to be imposed in the future payable to this victim." USCA5 R. 111-112. Wright appealed to contest the restitution order.

The Wright panel first found that the appeal waiver in Wright's plea agreement did not foreclose his right to appeal the restitution order. Wright, 639 F.3d at 683. Then, applying Amy's holding, the Wright panel concluded that Amy was entitled to restitution but that the district court had given inadequate reasons for the award it assessed. Id. at 685-86. The panel remanded for further findings regarding the amount of the award. Id. at 686. The three members on the Wright panel, however, joined a special concurrence that questioned Amy's holding and suggested that the court rehear both cases en banc, in part because this court was the first circuit to hold that a proximate cause requirement does not attach to the "full amount of . . . losses" under § 2259(b)(3). See id. at 689-90, 692 (Davis, J., specially concurring).

This court held the mandates in both Amy and Wright. A majority of this court's members voted to rehear these opinions en banc to resolve the question of how to award restitution under § 2259 and to address other related questions raised by these appeals. See In re Amy Unknown & United States v. Wright, 668 F.3d 776 (5th Cir. 2012) (granting rehearing en banc).

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II

In rehearing Amy and Wright en banc, we address the following issues: (1) whether the Crime Victims' Rights Act ("CVRA") grants crime victims a right to an appeal or, if not, whether this court should review Amy's mandamus petition under the standard this court has applied to supervisory writs; (2) whether 18 U.S.C. § 2259 requires the Government to show a defendant's criminal acts proximately caused a victim's injuries before a district court may award restitution; and (3) whether, in light of our holding with respect to § 2259, the district courts in Amy and Wright erred.

A

Amy petitioned for mandamus and, after this court initially denied her relief, appealed from the district court's restitution order. In the panel opinion in Amy, this court granted her mandamus on rehearing under our traditional mandamus inquiry, which this court held in In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (per curiam), applies to appeals under the CVRA. See Amy, 636 F.3d at 197-98. In Amy, the panel declined to decide whether the CVRA entitled her to bring a direct appeal, see id. at 194-97,...

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