United States v. Michael Monzel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2011 Decided April 19, 2011

No. 11-3008

UNITED STATES OF AMERICA,

APPELLEE

v.

MICHAEL M. MONZEL,

APPELLEE

AMY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00243)

No. 11-3009

IN RE: AMY, THE VICTIM IN THE MISTY CHILD PORNOGRAPHY

SERIES,

PETITIONER

On Petition for Writ of Mandamus

2

Paul Cassell argued the cause for and filed the petition

for writ of mandamus for appellant/petitioner Amy. With him

on the petition was James R. Marsh.

Nicholas P. Coleman argued the cause for and filed the

response for appellee/respondent United States of America.

Roy W. McLeese III, Assistant U.S. Attorney, entered an

appearance.

David W. Bos, Assistant Federal Public Defender, argued

the cause and filed the response for appellee/respondent

Michael M. Monzel. With him on the response were A.J.

Kramer, Federal Public Defender, and Neil H. Jaffee,

Assistant Federal Public Defender.

Before: GINSBURG, ROGERS, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: 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.

3

I

A

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.

4

B

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 amount was

“less than the actual harm” Monzel caused Amy, Restitution

Order at 5, it declined to award more because neither the

government nor Amy had submitted evidence “as to what

losses were caused by Defendant’s possession of [the

victim’s] images,” id. at 3 (alteration in original) (quoting

United States v. Church, 701 F. Supp. 2d 814, 832 (W.D. Va.

2010)) (internal quotation marks omitted). The court also

declined to hold Monzel jointly and severally liable for the

entirety of the harm Amy has suffered as a result of the

distribution and possession of her image by others, given “the

substantial logistical difficulties in tracking awards made and

money actually recovered” from such persons. Id. at 5.

5

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.

II

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),1 and the Act directs that the court of

1

The CVRA states that “[a] crime victim has the following rights”:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any

public court proceeding, or any parole proceeding,

involving the crime or of any release or escape of the

accused.

6

appeals “shall” decide the petition within the time limit. As

we have previously recognized, “‘[s]hall’ is a term of legal

significance, in that it is mandatory or imperative, not merely

precatory.”2 Exportal Ltda. v. United States, 902 F.2d 45, 50

(D.C. Cir. 1990) (internal quotation marks omitted). Although

the statute leaves us no room to set aside the 72-hour

deadline, the multiple issues of first impression this case

raises, involving several statutes and conflicting views among

the circuits, called for oral argument and a published opinion

that is being issued past the deadline.

(3) The right not to be excluded from any such public court

proceeding, unless the court, after receiving clear and

convincing evidence, determines that testimony by the

victim would be materially altered if the victim heard other

testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding

in the district court involving release, plea, sentencing, or

any parole proceeding.

(5) The reasonable right to confer with the attorney for the

Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for

the victim’s dignity and privacy.

18 U.S.C. § 3771(a).

2

Amy directs our attention to an unpublished order from the

Eleventh Circuit that granted a victim’s motion to waive the 72-

hour deadline. See Order, In re Stewart, No. 10-12344 (May 21,

2010). Even were we inclined to give an unpublished decision from

another circuit weight that we do not give our own, see D.C. Cir.

R. 36(e)(2) (“[A] panel’s decision to issue an unpublished

disposition means that the panel sees no precedential value in that

disposition.”), the Eleventh Circuit’s order would not qualify for

such consideration because it lacked any analysis of the merits of

the motion.

7

Missing the deadline, however, does not deprive us of

jurisdiction. In Dolan v. United States, 130 S. Ct. 2533

(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.

8

III

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 Monzel

and the government. See In re Acker, 596 F.3d 370, 372 (6th

Cir. 2010); In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); In

re Antrobus, 519 F.3d 1123, 1125 (10th Cir. 2008). Four do

not. See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017-18

(9th Cir. 2006) (reviewing petition under the more generous

“abuse of discretion or legal error” standard); In re W.R. Huff

Asset Mgmt. Co., 409 F.3d 555, 563-64 (2d Cir. 2005)

(reviewing petition for “abuse of discretion”); see also In re

Stewart, 552 F.3d 1285, 1288-89 (11th Cir. 2008) (granting

petition without asking whether victim had a clear and

indisputable right to relief); In re Walsh, No. 06-4792, 2007

WL 1156999, at *2 (3d Cir. Apr. 19, 2007) (unpublished)

(stating in dicta that “mandamus relief is available under a

different, and less demanding, standard under 18 U.S.C.

§ 3771”).

9

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 (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 (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

10

“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 that denies relief under the traditional mandamus

standard has most certainly “take[n] up and decide[d]” the

petition.3

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

3

Senator Feinstein’s remark that “while mandamus is generally

discretionary, [§ 3771(d)(3)] means that courts must review these

cases,” 150 CONG. REC. 7304 (2004) (emphasis added), is of no

help to Amy, either. A court applying the traditional mandamus

standard to a CVRA petition still “reviews” the petition.

11

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.”4

IV

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

4

Similarly, there is no reason to read Senator Feinstein’s statement

that § 3771(d)(3) permits crime victims to “in essence, immediately

appeal a denial of their rights by a trial court,” 150 CONG. REC.

7295, or Senator Kyl’s comment that “appellate courts are designed

to remedy errors of lower courts,” id. at 7304, to suggest that either

senator intended ordinary appellate review to apply. A crime

victim’s ability to “immediately appeal” a denial of her rights does

not turn on the applicable standard of review, and a court applying

the traditional mandamus standard can still remedy errors of law,

provided the errors were clear and the petitioner has a right to

relief. Here again, that Congress specifically provided for

mandamus review suggests it intended appellate courts to remedy

district court errors dealing with victims’ rights only when such

errors were clear and indisputable.

12

she has no other adequate remedy. See Power, 292 F.3d at

784. Amy’s petition satisfies each of these conditions.

A

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.

1

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

13

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, No. 09-41238, slip op. at 12

(Mar. 22, 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 tort5 and criminal law that a

defendant is only liable for harms he proximately caused. See

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL

AND EMOTIONAL HARM § 26 cmt. a (2010) (calling proximate

cause a “requirement[] for liability in tort”);6 W. PAGE

KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS

§ 41, at 263 (5th ed. 1984) (“An essential element of the

5

Although § 2259 is a criminal statute, it functions much like a tort

statute by directing the court to make a victim whole for losses

caused by the responsible party. Cf. United States v. Bach, 172 F.3d

520, 523 (7th Cir. 1999) (“Functionally, the Mandatory Victims

Restitution Act is a tort statute, though one that casts back to a

much earlier era of Anglo-American law, when criminal and tort

proceedings were not clearly distinguished.”). Thus, tort doctrine

informs our thinking here.

6

The Restatement (Third) of Torts uses the term “scope of liability”

in favor of “proximate cause.” See RESTATEMENT (THIRD) OF

TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26

cmt. a.

14

plaintiff’s 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’ . . . .”);

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.”); see also id. § 6.4(c), at 471 (“The problems of

[proximate] causation arise in both tort and criminal settings,

and the one situation is closely analogous to the other. . . .

[T]he courts have generally treated [proximate] causation in

criminal law as in tort law . . . .”). The purpose of this rule is

clear: “legal responsibility must be limited to those causes

which are so closely connected with the result and of such

significance that the law is justified in imposing liability.”

KEETON ET AL., supra, § 41, at 264. 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. See

Sherwood Bros. v. District of Columbia, 113 F.2d 162, 163

(D.C. Cir. 1940) (finding it “reasonable . . . to assume” that

where a common law rule “has become embedded in the

habits and customs of the community, . . . Congress had the

common-law rule in mind when it legislated”).

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

15

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 (1978) (quoting

Morissette, 342 U.S. at 263) (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 (2000)

(quoting Almendarez-Torres v. United States, 523 U.S. 224,

237 (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

16

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 the

traditional requirement for everything but the catch-all, surely

it would have found a clearer way of doing so. Proximate

cause ensures “some direct relation between the injury

asserted and the injurious conduct alleged.” Hemi Group,

LLC v. City of New York, 130 S. Ct. 983, 989 (2010) (quoting

Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268

(1992)) (internal quotation marks omitted). Without the

limitation such a link provides, liability would attach to all

sorts of injuries a defendant might indirectly cause, no matter

how “remote” or tenuous the causal connection.7 Id.; see also

KEETON ET AL., supra, § 41, at 266 (explaining that “the mere

7

For example, without the requirement of proximate cause, if a

victim who needed counseling as a result of Monzel’s crime were

to suffer injuries in a car accident on the way to her therapist, she

would be entitled to restitution from Monzel for any medical

expenses relating to the accident, see 18 U.S.C. § 2259(b)(3)(A)

(providing restitution for “medical services relating to physical,

psychiatric, or psychological care”), because those expenses would

not have occurred but for his crime. See RESTATEMENT (THIRD) OF

TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26

(“Conduct is a factual cause of harm when the harm would not have

occurred absent the conduct.”). An “intervening act” (or

“superseding cause”) disrupts proximate causation, but not

causation in fact. See id. § 34 cmt. b.

17

fact of causation, as distinguished from the nature and degree

of the causal connection, can provide no clue of any kind to

singling out those [who] are to be held legally responsible,”

for “once events are set in motion, there is, in terms of

causation alone, no place to stop” (emphasis added)). It is

conceivable that Congress could intend that those who violate

laws against child sexual exploitation should pay restitution

for such attenuated harms, but it seems unlikely it did so here.

“If Congress really had wished [courts to award restitution for

losses defendants did not proximately cause], it could have

provided that. It would, however, take a very clear provision

to convince anyone of anything so odd.”8 Field v. Mans, 516

U.S. 59, 68 (1995).

2

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

8

The Fifth Circuit suggests that restricting the proximate cause

requirement to § 2259(b)(3)(F)’s catch-all category would not

“open the door to limitless restitution.” Amy Unknown, No. 09-

41238, slip op. at 16. This is so, that court says, because § 2259

“includes a general causation requirement in its definition of a

victim.” Id. (emphasis added) (citing 18 U.S.C. § 2259(c) (“For

purposes of this section, the term ‘victim’ means the individual

harmed as a result of a commission of a crime under this

chapter . . . .”)). But a “general” causation requirement without a

subsidiary proximate causation requirement is hardly a requirement

at all. So long as the victim’s injury would not have occurred but

for the defendant’s offense, the defendant would be liable for the

injury.

18

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 (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.

Nor can we say that Amy is clearly and indisputably

entitled to the full $3,263,758 from Monzel on the ground that

her injuries are “indivisible.” Amy argues at length that the

causes of her injuries cannot reasonably be divided among the

unknown number of possessors and distributors of her images

and that Monzel is therefore jointly and severally liable with

other possessors and distributors for the full amount of her

losses. See RESTATEMENT (THIRD) OF TORTS:

APPORTIONMENT OF LIABILITY § 12 (2000) (“Each person

who commits [an intentional tort] is jointly and severally

liable for any indivisible injury legally caused by the tortious

conduct.”); KEETON ET AL., supra, § 52, at 347 (“[E]ntire

liability rests upon the obvious fact that each has contributed

to the single result, and that no reasonable division can be

made.”).

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

19

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.”);9 see also

9

The government agrees with Amy that the best reading of § 2259

calls for joint and several liability in the full amount of Amy’s

20

United States v. Wall, 349 F.3d 18, 26 (1st Cir. 2003) (“Under

18 U.S.C. § 3664(h), a court issuing a restitution order is

permitted to . . . make each defendant liable for the full

amount of restitution by imposing joint and several

liability.”); accord United States v. Squirrel, 588 F.3d 207,

212 (4th Cir. 2009); United States v. Moten, 551 F.3d 763,

768 (8th Cir. 2008); United States v. Hunt, 521 F.3d 636, 649

(6th Cir. 2008); United States v. Nucci, 364 F.3d 419, 422 (2d

Cir. 2004); United States v. Booth, 309 F.3d 566, 576 (9th

Cir. 2002); United States v. Diaz, 245 F.3d 294, 312 (3d Cir.

2001). It is unclear, however, whether joint and several

liability may be imposed upon defendants in separate cases.

The Fourth and Sixth Circuits have held, in unpublished

opinions, that § 3664(h) does not apply to prosecutions where

there is only one defendant. See United States v. McGlown,

No. 08-3903, 2010 WL 2294527, at *3 (6th Cir. June 8,

2010); United States v. Channita, No. 01-4060, 2001 WL

578140, at *1 (4th Cir. May 30, 2001). The Fifth Circuit, by

contrast—without addressing § 3664(h)’s applicability—said

a district court could order joint and several liability for a lone

defendant such as Monzel under § 3664(m)(1)(A), which

provides that a district court may “enforce[]” a restitution

order “by all other available and reasonable means.” See Amy

Unknown, No. 09-41238, slip op. at 17. We need not resolve

this issue, because so long as the requirement of proximate

cause applies, as it does here, a defendant can be jointly and

severally liable only for injuries that meet that requirement.

See RESTATEMENT (SECOND) OF TORTS § 879 cmt. b (1979).

Because the record does not show that Monzel proximately

losses from her sexual exploitation as a child, but, pointing to

§ 3664(h), maintains that the statute affords the district court

discretion on whether to order joint and several liability. See Resp.

of the United States to Pet. for Writ of Mandamus at 15-16; Oral

Arg. Tr. at 42, 49.

21

caused all of Amy’s injuries, the district court did not clearly

and indisputably err by declining to impose joint and several

liability on him for the full $3,263,758 she seeks.10

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,11 Restitution Order at 3, the district

court said it had no basis upon which to calculate the amount

of harm Monzel had proximately caused her and so decided to

award “nominal” restitution of $5000, id. at 5.

10

Amy’s effort to analogize Monzel’s possession to participation in

a “joint enterprise” with “mutual agency, so that the act of one is

the act of all,” Pet. for Writ of Mandamus at 24 (quoting WILLIAM

L. PROSSER, THE LAW OF TORTS § 52, at 315 (4th ed. 1971)), also

fails. There is no evidence at all in the record that Monzel acted “in

concert” with others to distribute and possess Amy’s image, as is

required for such enterprise liability to apply. KEETON ET AL.,

supra, § 52, at 346.

11

In an opinion issued several months prior to the restitution order,

the district court concluded that Amy’s “alleged losses were

proximately caused by Monzel’s possession of [her] image[].”

United States v. Monzel, 746 F. Supp. 2d 76, 88 (D.D.C. 2010). The

court made clear, however, that it was not deciding at that point the

amount of Amy’s losses that Monzel had caused. Rather, the court

was “only identif[ying] the losses alleged for the purposes of

considering the causal connection between them and [Monzel’s]

conduct.” Id. at 84 n.12. Whether “the Government ha[d] met its

burden to prove the losses or the amount to be apportioned to

Monzel” were issues to be decided later. Id.

22

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 difficult or the

government provides less-than-ideal information. The court

must order restitution equal to the amount of harm the

government proves the defendant caused the victim. See id.

§ 3664(e) (“Any dispute as to the proper amount or type of

restitution shall be resolved by the court by the preponderance

of the evidence. The 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.”). Certainly the court

cannot award less restitution than it determines the victim is

entitled to.

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

23

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.

B

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, No. 09-

41238, slip op. at 11 (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)).12 We agree.

12

The Sixth Circuit’s position on the issue is unclear. In In re

Acker, 596 F.3d 370 (2010), the Sixth Circuit held that a putative

victim has no right to directly appeal a district court decision not to

award restitution where the victim simultaneously files a

mandamus petition raising “identical issues” as the appeal, see id.

at 373. Acker distinguished an earlier Sixth Circuit decision, In re

24

Although we “have jurisdiction of appeals from all final

decisions of the district courts,” 28 U.S.C. § 1291, the general

rule is that “one who is not a party or has not been treated as a

party to a judgment has no right to appeal therefrom.”

Karcher v. May, 484 U.S. 72, 77 (1987). However, “[t]he

Supreme Court has ‘never . . . restricted the right to appeal to

named parties to [a] litigation,’” In re Sealed Case (Med.

Records), 381 F.3d 1205, 1211 n.4 (D.C. Cir. 2004) (omission

and second alteration in original) (quoting Devlin v.

Scardelletti, 536 U.S. 1, 7 (2002)), and “if [a] decree affects

[a third party’s] interests, he is often allowed to appeal,” id.

(second alteration in original) (quoting Castillo v. Cameron

Cnty., 238 F.3d 339, 349 (5th Cir. 2001)).

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 non-

party 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

Siler, 571 F.3d 604 (2009), that permitted victims to directly appeal

a district court’s denial of their motion under the CVRA to obtain

the defendants’ presentence reports, id. at 607-09, on the ground

that the Siler victims had “been effectively treated as intervening

parties” by the district court and did not assert their rights under the

CVRA until “eighteen months after the criminal proceedings had

concluded,” Acker, 596 F.3d at 373.

25

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. 1974)); 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.13 See, e.g., 18 U.S.C. § 3663A(a)(1)

13

The only case Amy points us to where a court has allowed a

crime victim to appeal part of a defendant’s sentence is United

States v. Kones, 77 F.3d 66 (3d Cir. 1996), in which the Third

Circuit heard a victim’s appeal of a district court order denying

restitution, see id. at 68. Kones’s persuasive value on this point is

negligible, however, given that the government did not contest the

court’s jurisdiction to hear the victim’s appeal, see Def.-Appellee’s

Br. at 1, Kones, No. 95-1434 (3d Cir. Aug. 16, 1995), and the

court’s statement of its jurisdiction was one sentence long and

devoid of discussion, see 77 F.3d at 68; see also Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (stating that

“drive-by jurisdictional rulings” where jurisdiction is “assumed by

the parties[] and . . . assumed without discussion by the Court”

have “no precedential effect”); Lewis v. Casey, 518 U.S. 343, 352

26

(“[W]hen sentencing a defendant convicted of an offense

described in subsection (c), the court shall order . . . that the

defendant make restitution to the victim of the offense . . . .”);

id. § 3664(o) (“A sentence that imposes an order of restitution

is a final judgment . . . .”); United States v. Cohen, 459 F.3d

490, 496 (4th Cir. 2006) (“[R]estitution is . . . part of the

criminal defendant’s sentence.”); United States v. Acosta, 303

F.3d 78, 87 (1st Cir. 2002) (“It is undisputed that restitution is

part of a sentence.”); United States v. Syme, 276 F.3d 131,

159 (3d Cir. 2002) (“Restitution orders have long been treated

as part of the sentence for the offense of conviction . . . .”).

Amy thus runs headlong into the rule against direct appeals of

sentences by crime victims.

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

(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 (1993) (quoting Mass. Mut. Life

Ins. Co. v. Russell, 473 U.S. 134, 146-47 (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

n.2 (1996) (“[W]e have repeatedly held that the existence of

unaddressed jurisdictional defects has no precedential effect.”).

27

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 (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 victim’s restitution award under the Mandatory

Victims Restitution Act, 18 U.S.C. §§ 3663A, 3664); United

States v. Kones, 77 F.3d 66, 68 (3d Cir. 1996) (hearing crime

28

victim’s appeal of district court order denying restitution

under the Victim and Witness Protection Act, 18 U.S.C.

§ 3663); see also 150 CONG. REC. 7301 (statement of Sen.

Kyl) (“It is not the intent of [the CVRA] to limit any laws in

favor of crime victims that may currently exist, whether these

laws are statutory, regulatory, or found in case law.”); id.

(statement of Sen. Feinstein) (“[I]t is not our intent to restrict

victims’ rights or accommodations found in other laws.”). But

even if two circuits allowed crime victims to appeal

restitution orders prior to the enactment of the CVRA, a

plurality of circuits did not. See Mindel, 80 F.3d at 398 (9th

Cir.); United States v. Kelley, 997 F.2d 806, 807 (10th Cir.

1993); United States v. Johnson, 983 F.2d 216, 217 (11th Cir.

1993); United States v. Grundhoefer, 916 F.2d 788, 793 (2d

Cir. 1990). There was no settled right of appeal for the CVRA

to narrow.14

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

14

Moreover, only one circuit had ever allowed a victim to appeal

the amount of restitution. See Kones, 77 F.3d at 68 (3d Cir.).

Another circuit had allowed a victim to appeal an order impairing

her ability to collect restitution, see Perry, 360 F.3d at 522, 524-33

(6th Cir.), but did not consider whether the victim could appeal the

actual amount of the award.

29

§ 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.15

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 right to petition

the court of appeals for mandamus, grant the government

express power to assert crime victims’ rights on appeal, or set

forth procedures by which victims may move to reopen

sentences. Thus, the Supreme Court’s teaching that a

15

In any event, Perry is not the only case to consider a victim’s

right to appeal an MVRA restitution order. In United States v.

United Security Savings Bank, 394 F.3d 564 (8th Cir. 2004) (per

curiam), the Eighth Circuit said that a crime victim may not appeal

a restitution order made under the MVRA, id. at 567. Thus, a

victim’s right to appeal under the MVRA is far from settled.

30

“statute’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, 508 U.S. at 254 (quoting Russell, 473

U.S. at 146-47), applies with much greater force here than in

Perry.

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.16 Mandamus is Amy’s only

recourse to challenge the award.

V

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.

16

Amy also argues that she is entitled to appeal the district court’s

restitution order under the collateral order doctrine. Because she

cannot directly appeal her restitution award in any event, the

collateral order doctrine is of no help to her.