United States v. Aguirre-González, No. 08-1276, 2010 WL 700201 (1st Cir. Mar. 2, 2010)

The victims, who lost over $2.7 million as the result of defendant’s fraudulent investment scheme, appealed the district court’s denial of their motion for restitution. In considering whether the victims had standing to bring their appeal, the court found that the victims had failed to show that they were not subject to “the baseline rule [ ] that crime victims, as non-parties, may not appeal a defendant’s criminal sentence.” It further found that the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, “expressly provides crime victims with a limited avenue to challenge the restitution component of a defendant’s sentence through a petition for a writ of mandamus,” and that the statute only allows the government to assert victims’ rights in a direct appeal. The court next turned to the availability of mandamus review in this case. It concluded that its authority to convert the victims’ direct appeal into a petition for mandamus relief was not affected by the CVRA’s requirement that appellate courts review a mandamus petition within 72 hours after the petition is filed. Nonetheless, the court declined to so convert the appeal based on its conclusion that, more than two years after sentencing, consideration of the petition on the merits “would be fruitless in light of the CVRA’s express concern for finality in criminal sentencing orders.” In reaching this decision, the court recognized the split among circuit courts regarding whether mandamus petitions filed under the CVRA are subject to the standard of review governing traditional writ petitions or whether such petitions are reviewed for abuse of discretion. Finding that the victims would not be entitled to mandamus relief under either standard, the court declined to decide which standard of review governs this type of mandamus petition.