In December 2009, respondent Michael Monzel pled guilty to possession of child pornography. One of the images he possessed depicted the petitioner, who proceeds in this matter under the pseudonym "Amy." Amy subsequently sought $3,263,758 in restitution from Monzel. The district court, however, awarded what it called "nominal" restitution of $5000, an amount it acknowledged was less than the harm Monzel caused her. Amy challenges the award in a petition for mandamus and by direct appeal. We grant her petition in part because the district court admitted the restitution award was smaller than the amount of harm she suffered as a result of Monzel's offense, and we dismiss her direct appeal because it is not authorized by statute.
This case involves the interplay of three statutes. 18 U.S.C. § 3771, also known as the Crime Victims' Rights Act (CVRA), grants crime victims "[t]he right to full and timely restitution as provided in law." Id. § 3771(a)(6). If a district court denies the relief sought, the Act provides that the victim or the government "may petition the court of appeals for a writ of mandamus." Id. § 3771(d)(3). The court of appeals is then required to "take up and decide such application forthwith within 72 hours after the petition has been filed." Id.
18 U.S.C. § 2259 governs restitution awards for victims of child sexual exploitation and directs courts to award "the full amount of the victim's losses," id. § 2259(b)(1), defined as costs incurred for medical services; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorneys' fees and other litigation costs; and "any other losses suffered by the victim as a proximate result of the offense," id. § 2259(b)(3). Neither the defendant's economic circumstances nor the victim's entitlement to compensation from another source may diminish the amount of the victim's award. See id. § 2259(b)(4)(B).
Finally, 18 U.S.C. § 3664 sets forth rules for issuing and enforcing restitution awards. As relevant here, the statute provides that "[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence." Id. § 3664(e). "The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense" rests with the government. Id.
On December 10, 2009, respondent Michael Monzel pled guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The National Center for Missing and Exploited Children identified petitioner Amy as the minor depicted in one of the pornographic images Monzel possessed but did not distribute. Amy filed a victim impact statement seeking $3,263,758 in restitution from Monzel, an amount she claims reflects her total losses from the creation and distribution of pornographic images of her as a child—including images of her being sexually abused. Monzel argued that the district court should award Amy no more than $100 because the government had failed to show what portion of Amy's losses he had caused.
In an order entered on January 11, 2011, the district court awarded Amy $5000 in what it called "nominal" restitution. Even though the court had "no doubt" that this
Amy now petitions for a writ of mandamus under 18 U.S.C. § 3771(d)(3) directing the district court to order Monzel to pay her $3,263,758 in restitution. She has also challenged the award in a direct appeal and moves to consolidate her mandamus petition with the appeal. The government moves to dismiss Amy's appeal on the ground that crime victims may not directly appeal restitution orders. We have jurisdiction over her mandamus petition under § 3771(d)(3) but dismiss her direct appeal because it is not authorized by statute.
As a preliminary matter, Amy has filed a motion to waive the 72-hour statutory deadline for deciding her mandamus petition. Monzel and the government both oppose her motion on the ground that the time limit cannot be waived at the sole discretion of the crime victim. We think Monzel and the government are right: Amy may not unilaterally waive the statutory deadline, but the passing of that deadline does not defeat our jurisdiction to decide her petition.
Amy asserts that the CVRA gives a crime victim a personal, waivable right to a decision on a petition for mandamus within 72 hours, but nothing in the language of the statute supports that view. No such right is mentioned among the enumerated protections afforded to crime victims, see 18 U.S.C. § 3771(a),
Missing the deadline, however, does not deprive us of jurisdiction. In Dolan v. United States, ___ U.S. ___, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010), the Supreme Court held that missing § 3664's 90-day deadline for determining a victim's losses does not deprive a sentencing court of power to order restitution, id. at 2539; see 18 U.S.C. § 3664(d)(5) ("If the victim's losses are not ascertainable . . . 10 days prior to sentencing, . . . the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing."). We think the Supreme Court's reasons for concluding that the 90-day deadline in Dolan was not jurisdictional apply with equal force to the 72-hour deadline here.
To begin with, like § 3664, the CVRA "does not specify a consequence for noncompliance with its timing provisions." Dolan, 130 S.Ct. at 2539 (internal quotation marks omitted). And just as § 3664 emphasizes "the importance of[ ] imposing restitution upon those convicted of certain federal crimes," Dolan, 130 S.Ct. at 2539, the CVRA stresses the need to "ensure that the crime victim is afforded the rights described in [§ 3771(a) ]," 18 U.S.C. § 3771(b)(1). Moreover, as with the 90-day deadline for determining a victim's losses, "to read [the 72-hour deadline for deciding a mandamus petition] as depriving the . . . court of the power to order [relief] would harm those—the victims of crime—who likely bear no responsibility for the deadline's being missed and whom the statute also seeks to benefit." Dolan, 130 S.Ct. at 2540. Finally, "neither the language nor the structure of [either] statute requires denying the victim [relief] in order to remedy [the] missed . . . deadline," and "doing so would defeat the basic purpose of the [statute]." Id. at 2541. We thus conclude that the CVRA's 72-hour time limit for deciding mandamus petitions is not jurisdictional and exercise our authority to decide Amy's petition outside the deadline.
We must first decide the standard of review that applies to petitions for mandamus filed under the CVRA. This is an open question in our circuit. Monzel and the government both urge us to apply the traditional standard for mandamus, under which Amy must show that: (1) she has a clear and indisputable right to relief; (2) the district court has a clear duty to act; and (3) no other adequate remedy is available to her. See Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002). Amy argues that even though Congress called the procedure it created under the CVRA "mandamus," 18 U.S.C. § 3771(d)(3), it intended to grant victims the ability to obtain ordinary appellate review, which in this case would mean de novo review of what it means to award "the full amount of the victim's losses." See id. § 2259(b)(1), (3).
There is a circuit split on the standard of review for mandamus petitions brought under the CVRA. Three circuits apply the traditional mandamus standard urged by
We think the best reading of the statute favors applying the traditional mandamus standard. To begin with, there is no indication that Congress intended to invoke any other standard. That Congress called for "mandamus" strongly suggests it wanted "mandamus." See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed."). Furthermore, the paragraph that follows the mandamus provision states that the government may obtain ordinary appellate review of an order denying relief to a crime victim: "In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates." 18 U.S.C. § 3771(d)(4). That Congress expressly provided for "mandamus" in § 3771(d)(3) but ordinary appellate review in § 3771(d)(4) invokes "the usual rule that when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (internal quotation marks omitted). If the government can obtain ordinary appellate review via mandamus, as Amy asserts, it is unclear what purpose § 3771(d)(4) serves by providing the government the same thing on direct appeal.
Finally, the abbreviated 72-hour deadline suggests that Congress understood it was providing the traditional "extraordinary remedy" of mandamus. In re Brooks, 383 F.3d 1036, 1041 (D.C.Cir. 2004). Courts will often be able to meet the compressed timeline under the traditional standard, because determining whether the lower court committed a "clear and indisputable" error will not normally require extensive briefing or prolonged deliberation. By contrast, full briefing and plenary appellate review within the 72-hour deadline will almost always be impossible. Cf. Antrobus, 519 F.3d at 1130 ("It seems unlikely that Congress would have intended de novo review in 72 hours of novel and complex legal questions.. . .").
Amy's arguments that Congress provided ordinary appellate review but called it "mandamus" are not persuasive. Instructing courts to "ensure" that a crime victim is afforded certain rights, 18 U.S.C. § 3771(b)(1) (directing court to "ensure that the crime victim is afforded the rights described in [§ 3771(a) ]"), says nothing about the standard of review. Neither does the fact that the court of appeals must "take up and decide" a petition within 72 hours. Id. § 3771(d)(3). A court
Amy's resort to legislative history fares no better. She points particularly to a comment by Senator Feinstein, one of the CVRA co-sponsors, that § 3771(d)(3) makes "a new use of a very old procedure, the writ of mandamus." 150 CONG. REC. 7295 (2004). Even assuming that the words of a single lawmaker could determine the meaning of the CVRA, the Senator's statement says nothing about the standard of review for mandamus. More plausibly, her comment refers to the fact that prior to the CVRA most courts denied crime victims any opportunity to challenge lower court decisions impairing their rights as victims, whether through mandamus or otherwise. See, e.g., United States v. McVeigh, 106 F.3d 325, 336 (10th Cir. 1997) (dismissing for lack of standing victims' mandamus petition and appeal of district court order prohibiting victims from attending trial); United States v. Mindel, 80 F.3d 394, 398 (9th Cir.1996) (dismissing for lack of standing victim's appeal of restitution order and related mandamus petition); see also United States v. Aguirre-González, 597 F.3d 46, 54 (1st Cir.2010) ("[T]he default rule [is] that crime victims have no right to directly appeal a defendant's criminal sentence."). By providing victims the opportunity to challenge such decisions through mandamus, Congress did indeed make a "new use of a very old procedure."
To prevail on the merits of her petition for mandamus, Amy must show that she has a clear and indisputable right to relief, that the district court has a clear duty to act, and that she has no other adequate remedy. See Power, 292 F.3d at 784. Amy's petition satisfies each of these conditions.
As a crime victim Amy has a "right to full and timely restitution as provided in law," 18 U.S.C. § 3771(a)(6), and the district court has a corresponding duty to "direct" Monzel to pay "the full amount of [her] losses as determined by the court," id. § 2259(b)(1). Because the record does not establish that Monzel's possession of her image caused all of her losses, Amy does not have a right to the full $3,263,758 she seeks. She is, however, entitled to the amount of her losses that Monzel proximately caused. Because the $5000 the court awarded was, by its own acknowledgement, less than the amount of harm Monzel caused Amy, we grant her petition in part.
Section 2259 directs the district court to order the defendant to pay restitution to the "victim" of a crime of child sexual exploitation. See id. § 2259(a)-(b). "Victim" is defined as "the individual harmed as a result of a commission of a crime under this chapter." Id. § 2259(c). Read together, these provisions tie restitution awards to harms caused "as a result" of a defendant's crime.
Section 2259 further instructs the court to award "the full amount of the victim's losses," id. § 2259(b)(1), defined as "any costs incurred by the victim for" six categories: (A) medical services; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys' fees and other litigation costs; and (F) a catch-all category of "any other losses suffered by the victim as a proximate result of the offense," id. § 2259(b)(3)(A)-(F). There is a circuit split over whether the proximate cause requirement in the catch-all category also applies to the preceding categories. Most circuits to consider the issue have held that it does. See United States v. McDaniel, 631 F.3d 1204, 1208-09 (11th Cir.2011); United States v. Laney, 189 F.3d 954, 965 (9th Cir.1999); United States v. Crandon, 173 F.3d 122, 125 (3d Cir.1999). The Fifth Circuit alone has held it does not. In re Amy Unknown, 636 F.3d 190, 198-99 (5th Cir.2011). We join the plurality in concluding that all of the categories require proximate cause. Unlike those circuits, however, our reasoning rests not on the catch-all provision of § 2259(b)(3)(F), but rather on traditional principles of tort and criminal law and on § 2259(c)'s definition of "victim" as an individual harmed "as a result" of the defendant's offense.
It is a bedrock rule of both tort
Here, nothing in the text or structure of § 2259 leads us to conclude that Congress intended to negate the ordinary requirement of proximate cause. By defining "victim" as a person harmed "as a result of" the defendant's offense, the statute invokes the standard rule that a defendant is liable only for harms that he proximately caused. That the definition does not include an express requirement of proximate cause makes no difference. "Congress [is] presumed to have legislated against the background of our traditional legal concepts which render [proximate cause] a critical factor, and absence of contrary direction" here "[is] taken as satisfaction [of] widely accepted definitions, not as a departure from them." United States v. U.S. Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (quoting Morissette, 342 U.S. at 263, 72 S.Ct. 240) (internal quotation marks omitted).
We find the Fifth Circuit's argument to the contrary unpersuasive. In its recent decision, that court emphasized that other restitution statutes define "victim" as a person "directly and proximately harmed as a result of" the defendant's offense, e.g., 18 U.S.C. § 3663(a)(2); id. § 3663A(a)(2); id. § 3771(e), whereas § 2259(c) defines "victim" as a person harmed merely "as a result" of the defendant's offense. But this difference in language tells us nothing about Congress's intent in passing § 2259, because the definitions in those other statutes were all enacted after § 2259. Compare Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, sec. 205(a)(1)(F), § (a)(2), 110 Stat. 1214, 1230 (codified at 18 U.S.C. § 3663(a)(2)), id. sec. 204(a), § (a)(2), 110 Stat. 1228 (codified at 18 U.S.C. § 3663A(a)(2)), and Justice for All Act of 2004, Pub.L. No. 108-405, sec. 102(a), § (e), 118 Stat. 2260, 2263 (codified at 18 U.S.C. § 3771(e)), with Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, sec. 40113(b)(1), § (f), 108 Stat. 1796, 1910 (codified at 18 U.S.C. § 2259(c)). "[L]ater laws that `do not seek to clarify an earlier enacted general term' and `do not depend for their effectiveness upon clarification, or a change in the meaning of an earlier statute,' are `beside the point' in reading the first enactment." Gutierrez v. Ada, 528 U.S. 250, 257-58, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000) (quoting Almendarez-Torres v. United States, 523 U.S. 224, 237, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). At most, the later statutes show that § 2259(c)'s use of the phrase "as a result of" is not the only way to impose a proximate cause requirement. They do not prove that the phrase abrogates the requirement.
We similarly find little reason to conclude that Congress intended to eliminate the requirement of proximate cause for the categories of loss in § 2259(b)(3)(A)-(E) by including an express requirement in paragraph (F)'s catch-all provision. Compare 18 U.S.C. § 2259(b)(3)(A)-(E), with id. § 2259(b)(3)(F) (instructing court to award restitution for "any other losses suffered by the victim as a proximate result of the offense"). Had Congress meant to abrogate
Because restitution awards under § 2259 are limited to harms the defendant proximately caused, we cannot say that Amy is clearly and indisputably entitled to the full $3,263,758 she seeks. Although the government submitted evidence that Amy suffered losses stemming from her sexual exploitation as a child, see Mot. for Restitution at 6-7; Gov't's Mem. of Law Regarding the Victims' Losses at 6-15, and argued persuasively that possession of child pornography causes harm to the minors depicted, Mot. for Restitution at 9-12; see also New York v. Ferber, 458 U.S. 747, 758-60, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), it made no showing as to the amount of Amy's losses traceable to Monzel. Whatever else may be said of his crime, the record before us does not establish that Monzel caused all of Amy's losses.
But the very sources upon which Amy relies undermine her argument. Prosser, whom she quotes at length, states that "[s]uch entire liability is imposed" where two or more causes produce a single "result" and "either cause would have been sufficient in itself" to produce the result or each was "essential to the injury." KEETON ET AL., supra, § 52, at 347. Here, Monzel's possession of Amy's image, which the district court found added to her injuries, was not "sufficient in itself" to produce all of them, nor was it "essential" to all of them. Amy's profound suffering is due in large part to her knowledge that each day, untold numbers of people across the world are viewing and distributing images of her sexual abuse. See Mot. for Restitution at 6 ("The truth is, I am being exploited and used every day and every night somewhere in the world by someone."); Gov't's Mem. of Law Regarding the Victims' Losses at 8 ("Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again."). Monzel's possession of a single image of Amy was neither a necessary nor a sufficient cause of all of her losses. She would have suffered tremendously from her sexual abuse regardless of what Monzel did. See also KEETON ET AL., supra, § 52, at 346 (stating that "entire liability" is generally not imposed "where there is [a] factual basis for holding that [the] wrongdoer's conduct was not a cause in fact of part of the harm"). Similarly, the Restatement (Third) of Torts, upon which Amy also relies, instructs that an "indivisible injury" is "one in which the entire damages were caused by every legally culpable act of each person." RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 26 reporters' note cmt. g (emphasis added). As before, the government has not shown that Monzel caused the entirety of Amy's losses.
Joint and several liability may also be appropriate under § 3664(h) where there is more than one defendant and each has contributed to the victim's injury. See 18 U.S.C. § 3664(h) ("If the court finds that more than [one] 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.");
The district court did, however, clearly err by awarding an amount of restitution it acknowledged was less than the harm Monzel had caused. Under § 3664(e), the government bears the burden of demonstrating the amount of loss the victim suffered "as a result of the [defendant's] offense." In this case, because the government failed to submit "any evidence whatsoever" regarding the amount of Amy's losses attributable to Monzel,
But in the very next sentence the court said it had "no doubt" that this award was "less than the actual harm" Monzel had caused Amy. Id. at 5. This was clear and indisputable error. A district court cannot avoid awarding the "full amount of the victim's losses," 18 U.S.C. § 2259(b)(1), simply because the attribution analysis is
We recognize, of course, that determining the dollar amount of a victim's losses attributable to the defendant will often be difficult. In a case such as this one, where the harm is ongoing and the number of offenders impossible to pinpoint, such a determination will inevitably involve some degree of approximation. But this is not fatal. Section 2259 does "not impose[] a requirement of causation approaching mathematical precision." United States v. Doe, 488 F.3d 1154, 1160 (9th Cir.2007). Rather, the district court's charge is "to estimate, based upon facts in the record, the amount of [the] victim's loss with some reasonable certainty." Id.
On remand, the district court should consider anew the amount of Amy's losses attributable to Monzel's offense and order restitution equal to that amount. Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel's possession of Amy's image or to order the government to suggest a formula for determining the proper amount of restitution. The burden is on the government to prove the amount of Amy's losses Monzel caused. We expect the government will do more this time around to aid the district court. We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.
To prevail on her petition, Amy must also show that mandamus is her only adequate remedy. See Power, 292 F.3d at 784. Since the enactment of the CVRA, every circuit to consider the question has held that mandamus is a crime victim's only recourse for challenging a restitution order. See Aguirre-González, 597 F.3d at 52-55 (1st Cir.); United States v. Hunter, 548 F.3d 1308, 1317 (10th Cir.2008) ("We hold that individuals claiming to be victims under the CVRA may not appeal from the alleged denial of their rights under that statute except through a petition for a writ of mandamus as set forth by 18 U.S.C. § 3771(d)(3)."); cf. Amy Unknown, 636 F.3d at 198 (5th Cir.) ("affirm[ing]" that "[a crime victim] likely has no other means for obtaining review of the district court's decision not to order restitution" besides mandamus (quoting In re Amy, 591 F.3d 792, 793 (5th Cir.2009)) (internal quotation marks omitted)).
Amy argues that even though she was not a party below, she has a direct interest in the district court's restitution order and should therefore be allowed to appeal. Her argument, however, overlooks that she is seeking to appeal part of Monzel's sentence. Regardless of the rules that govern nonparty appeals in other contexts, "the default rule [is] that crime victims have no right to directly appeal a defendant's criminal sentence." Aguirre-González, 597 F.3d at 54; see also Hunter, 548 F.3d at 1312 ("[W]e are aware of no precedent for allowing a non-party appeal that would reopen a criminal case following sentencing.").
Amy claims that several cases from this and other circuits reflect "well-recognized authority . . . permitting non-parties to appeal decisions in criminal cases which directly harm their rights." Pet'r's Mot. to Consolidate Appeal with Mandamus Pet. at 8. But none of the cases she cites involved a request by a victim to alter a defendant's sentence. Rather, all of them concerned disclosure of information in which the non-party had some interest. See id. at 8-9 n. 4 (citing United States v. Antar, 38 F.3d 1348 (3d Cir.1994); In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (11th Cir.1989); Anthony v. United States, 667 F.2d 870 (10th Cir.1981); In re Smith, 656 F.2d 1101 (5th Cir.1981); United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980); United States v. Briggs, 514 F.2d 794 (5th Cir.1975)); see also Amy's Resp. to Gov't Mot. to Dismiss at 17 (citing Doe v. United States, 666 F.2d 43 (4th Cir.1981)); Hubbard, 650 F.2d at 311 n. 67 ("Federal courts have frequently permitted third parties to assert their interests in preventing disclosure of material sought in criminal proceedings or in preventing further access to materials already so disclosed."). Here, by contrast, Amy is asking the court to revisit her restitution award, which is part of Monzel's sentence.
The CVRA does not alter this rule. To begin with, "where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). That the CVRA expressly provides for mandamus review makes us reluctant to read into it an implied right to direct appeal. Moreover, the CVRA's "carefully crafted and detailed enforcement scheme provides `strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.'" Mertens v. Hewitt Assocs., 508 U.S. 248, 254, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). Not only does the CVRA provide for mandamus review, but it also expressly authorizes the government to assert crime victims' rights on direct appeal, see 18 U.S.C. § 3771(d)(4), and sets forth specific rules for when crime victims may move to reopen sentences, see id. § 3771(d)(5). That Congress included these provisions but did not provide for direct appeals by crime victims is strong evidence that it did not intend to authorize such appeals.
It is also significant that while Congress expressly authorized the government to assert victims' rights on direct appeal under § 3771(d)(4), it made no such provision for victims themselves. See id. § 3771(d)(4) ("In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates."). This contrasts with § 3771(d)(3), which authorizes both the government and victims to bring mandamus petitions. See id. § 3771(d)(3) (stating that any "movant" who has asserted a crime victim's rights before the district court may petition for mandamus); id. § 3771(d)(1) (providing that the crime victim, the crime victim's representative, and the government may assert a victim's rights before the district court). Had Congress intended to allow victims to directly appeal, it seems likely it would have provided them that right under § 3771(d)(4) just as it provided them mandamus petitions under § 3771(d)(3). Cf. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").
Amy also argues that she is entitled to a direct appeal because two other circuits permitted crime victims to appeal restitution orders prior to the enactment of the CVRA, a statute that was intended to broaden, not narrow, available remedies. See United States v. Perry, 360 F.3d 519, 524-33 (6th Cir.2004) (permitting crime victim to appeal vacatur of lien enforcing
Amy responds that the cases preventing victims from appealing restitution orders are irrelevant because they were decided under the Victim and Witness Protection Act (VWPA), which, unlike § 2259, makes restitution discretionary rather than mandatory, takes into account the defendant's financial circumstances, and does not provide victims much opportunity to influence sentencing proceedings. See 18 U.S.C. § 3663(a). We should look instead, she argues, to United States v. Perry, 360 F.3d 519, a 2004 Sixth Circuit decision that permitted a crime victim to appeal an adverse restitution order under the Mandatory Victims Restitution Act (MVRA), a statute more analogous to § 2259, id. at 524-33. Perry expressly declined to follow the VWPA cases on the ground that the MVRA is "dramatically more `pro-victim'" than the VWPA, id. at 524: the MVRA makes restitution mandatory, not discretionary, see 18 U.S.C. § 3663A(a)(1); requires the court to award full restitution regardless of the defendant's financial circumstances, see id. § 3664(f)(1)(A); and gives victims a role in the sentencing process, see id. § 3664(d)(2).
But the victim in Perry was not appealing an order awarding restitution; rather, she was appealing an order affecting her ability to enforce an order awarding restitution. See Perry, 360 F.3d at 522 (describing victim's appeal of order vacating judgment lien she had obtained to enforce her restitution award). Granting the victim relief would not have altered the defendant's sentence. Here, by contrast, Amy is appealing the order awarding her restitution and is seeking a higher award. Granting her relief would alter the defendant's sentence.
Moreover, the CVRA and the MVRA differ significantly in the extent to which they provide remedies for challenging restitution orders. The MVRA may provide victims an opportunity to submit affidavits detailing their losses, see 18 U.S.C. § 3664(d)(2), but it does not provide a
For these reasons, we hold that Amy may not directly appeal her restitution award and we grant the government's motion to dismiss her appeal.
We grant Amy's petition for mandamus in part and instruct the district court to consider anew the amount of her losses attributable to Monzel and to order restitution equal to that amount. We further dismiss Amy's direct appeal of her restitution award and dismiss as moot her motion to consolidate her mandamus petition with her direct appeal.
So ordered.
18 U.S.C. § 3771(a).
