In re AMY & Vicky, Child Pornography Victims; Amy & Vicky, Child Pornography Victims, Petitioners, v. United States District Court for the Eastern District of California, Sacramento, Respondent, Joseph Cantrelle, Real Party in Interest, 710 F.3d 985

OPINION PER CURIAM: This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771, the Crime Victims’ Rights Act (“CVRA”). In reviewing CVRA mandamus petitions, this court “must issue the writ whenever we find that the district court’s order reflects an abuse of discretion or legal error,” and we need not balance the factors outlined in Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir.1977), in deciding these petitions. Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir.2006).

On February 22, 2013, the district court denied restitution to petitioners “Amy” and “Vicky.” Petitioners challenge this denial. Petitioners contend the district court erred in applying United States v. Kennedy, 643 F.3d 1251 (9th Cir.2011). In Kennedy, this court required a proximate causation between the defendant’s offense conduct and the victim’s losses. See id. at 1263. Petitioners also claim that the district court erred in not awarding them any restitution. Petitioners urge us to overrule Kennedy on the ground that 18 U.S.C. § 2259 does not impose a general proximate cause requirement.

Petitioners note that the Fifth Circuit, sitting en banc, recently held: [A] plain reading of § 2259 leads us to the following conclusion: Once a district court determines that a person is a victim, ... § 2259 requires the district court to order restitution for that victim. In re Unknown, 701 F.3d 749, 762 (5th Cir.2012) (en banc), petitions for cert. filed, - U.S.L.W. - (U.S. Jan. 31, 2013) (Nos. 12-8505, 12-8561). While we acknowledge that the Fifth Circuit adopted a different

interpretation of 18 U.S.C. § 2259, Kennedy remains binding on us in the absence of “intervening higher authority” that is “clearly irreconcilable” with our circuit precedent. Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir.2003) (en banc). A decision from the Fifth Circuit, our sister circuit, is not “intervening higher authority” and does not authorize us to abandon a prior panel opinion. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019 (9th Cir.2006) (noting that intervening higher authority includes decisions of the Supreme Court and of this court sitting en banc).

Accordingly, the district court did not err in imposing a proximate cause requirement when applying 18 U.S.C. § 2259(b)(3) and, in this respect, the petition is denied. However, the district court abused its discretion in refusing to order any restitution. During the sentencing hearing, with respect to restitution, the district court adopted the presentence report’s (“PSR”) recommendation. The PSR did not recommend restitution under Kennedy only because the writer of the report concluded that he lacked sufficient information to show that the Government had met its burden of establishing a causal connection.

Our review of the record demonstrates that petitioners provided sufficient evidence to establish a causal connection between defendant’s offense and petitioners’ losses. Accordingly, the petition is granted in part. The district court shall vacate the judgment with respect to restitution and shall conduct such further proceedings as may be appropriate to determine an amount of restitution to be paid to Amy and Vicky. DENIED in part; GRANTED in part, and REMANDED with instructions. . Respondent’s ex parte motion to file its appendix under seal is granted.

The Clerk shall file the appendix under seal and it shall not be available to any other parties to this petition.