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United States v. Aguirre-Gonzalez

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Before Torruella, Circuit Judge, Baldock, *fn1 Senior Circuit Judge, and Howard, Circuit Judge.

Richard J. Schmeelk, William B. Finneran, and JIRA Associates, LP were victims of a fraudulent investment scheme run by Defendant Alvin F. Aguirre-Gonz lez (“Aguirre”).*fn2 They brought this appeal after the district court denied their motion for an order of restitution at Aguirre’s sentencing.

The government concedes that, under the applicable federal restitution statutes, the district court “indisputably erred” when it concluded that the appellants were not “victims” of Aguirre’s fraud entitled to restitution.*fn3 Nonetheless, the government asserts that appellants cannot challenge the district court’s restitution order because they were not parties to the criminal proceedings below. Rather, the government contends, the exclusive remedy for crime victims seeking to challenge a district court’s order of restitution in criminal proceedings is to petition for a writ of mandamus under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. 3771(d)(3), which provides victims with a right to expedited, 72-hour appellate review. The government further contends that, by failing to bring a timely mandamus petition, appellants are no longer capable of seeking relief under the CVRA.

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