United States v. Aguirre-Gonzalez

United States Court of Appeals
For the First Circuit
No. 08-1276

UNITED STATES OF AMERICA,
Appellee,

v.

ALVIN F. AGUIRRE-GONZÁLEZ,
Defendant, Appellee,

RICHARD J. SCHMEELK; WILLIAM B. FINNERAN;
and JIRA ASSOCIATES, LP,
Movants, Appellants,

WELLS CAPITAL MANAGEMENT, INC.,
Provisional Intervenor.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. Senior District Judge]

Before

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

Ina M. Berlingeri-Vicenty, with whom Greenberg Traurig, P.A.,
was on brief for appellants Schmeelk, Finneran, and Jira
Associates.
Michael A. Rotker, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom Rosa E. Rodríguez-
Vélez, United States Attorney, District of Puerto Rico, were on
brief for appellee.
Daniel J. Vaccaro, with whom Aaron H. Kastens, and Michael
Best & Friedrich LLP, were on brief for the provisional intervenor.

*
Of the Tenth Circuit, sitting by designation.
March 2, 2010

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 TORRUELLA, 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-

González ("Aguirre").1 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.2 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),

1
For simplicity's sake, we refer to Schmeelk, Finneran, and JIRA
Associates, LP as "appellants" notwithstanding our conclusion that
this challenge should have been brought as a mandamus petition.
2
As we will explain, these statutes are (1) the Victim Witness
Protection Act, 18 U.S.C. § 3663, which provides crime victims with
a limited right to restitution at sentencing; (2) the Mandatory
Victim Restitution Act, 18 U.S.C. §§ 3663A, 3664, which provides
victims of certain economic crimes with a right to a mandatory
restitution, and sets forth certain procedural mechanisms to
enforce such restitution orders; and (3) the Crime Victims' Rights
Act, 18 U.S.C. 3771, which makes available to crime victims, among
other things, procedural mechanisms to assert substantive rights in
a defendant's criminal proceedings and on appeal, including rights
as provided in the VWPA and MVRA.

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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.

We asked the parties to brief a series of questions

pertaining to the right of crime victims to seek appellate review

of restitution orders imposed as part of a defendant's criminal

sentence. After careful consideration, we hold as follows. First,

a petition for a writ of mandamus under the CVRA is the exclusive

mechanism for appellate review of sentencing orders affecting crime

victims' rights. Next, the 72-hour time limit for mandamus review

imposed by the CVRA is precatory, not mandatory, such that

appellate courts retain authority, in appropriate circumstances, to

consider petitions after the expiration of that deadline.

Nonetheless, in this case, we do not exercise our discretion to

convert appellant's direct appeal into a mandamus petition, as

consideration of the petition on the merits at this late date would

be fruitless in light of the CVRA's express concern for finality in

criminal sentencing orders. Accordingly, we have no need to

address what standard of review applies to timely mandamus

petitions under the CVRA.

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 I. Background

A. The Criminal Proceedings3

From approximately 1994 through 2003, Aguirre was

president and chief executive officer of two businesses

incorporated under the laws of Puerto Rico which purchased vehicles

and equipment and then leased them to various public and private

entities. Acting through his corporations, Aguirre would sell or

assign rights to periodic payments under the leases to various

third-party investors. By August 1997, Aguirre began to sell or

assign rights to fraudulent leases and pocket investors' money. He

forged signatures, created false invoices, and made various

misrepresentations to investors and potential investors in the

course of this scheme.

In 2001 and 2002, appellants were among the investors

Aguirre deceived. Together, they purchased rights to payments

under several lease agreements, including, as is relevant here,

leases with the Municipality of Bayamón and with the Puerto Rico

Office of Courts Administration (OAT). Both leases were, in

various aspects, fraudulent, and appellants now claim losses of

more than $2.7 million as a result.4

3
The facts relating to Aguirre's fraudulent investment scheme are
drawn from the uncontested portions of his presentence report
(PSR). United States v. Brewster, 127 F.3d 22, 24 (1st Cir. 1997).
4
In July 2003, appellants and others filed a civil action against
Aguirre in federal district court in Puerto Rico seeking to recoup
their losses stemming from the fraud. Aguirre failed to answer,

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 On November 9, 2005 Aguirre was charged in a 31-count

indictment with wire fraud, mail fraud, and criminal forfeiture.

All of the counts were alleged to be part and parcel of the "scheme

and artifice to defraud" third-party investors we have just

described. The indictment alleged total losses for all victims of

approximately $30 million. Counts 28 and 29 pertained to leases

purchased by appellants, and specifically named Finneran and Jira

Associates.

Aguirre's Rule 11 hearing was held on January 23, 2007.

Under the terms of a written plea and forfeiture agreement with the

government, Aguirre agreed, among other things, to plead guilty to

counts 1 through 18 (wire fraud) and count 31 (civil forfeiture);

to forfeit $1,500,000 to the government; and to pay $3,321,382 in

restitution. In exchange, the government agreed to recommend the

dismissal of the remaining counts at sentencing, including counts

28 and 29. The district court accepted Aguirre's guilty plea.

Thereafter, appellants submitted victim impact

statements; moved for restitution under the Victim Witness

Protection Act (VWPA) and the Mandatory Victims Restitution Act

(MVRA); submitted declarations in support of their claims; and

argued the merits at Aguirre's sentencing hearing held on

and the district court subsequently entered a partial default
judgment, on which appellants have been unable to collect.
Previously, in 2002, appellants were able to recover roughly a
third of their total losses resulting from the OAT lease in
unrelated proceedings.

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January 17, 2003. The district court denied the motion for

restitution, reasoning that appellants were "victims" of the counts

as to which Aguirre had not pled guilty and, therefore, had no

criminal liability. The court ultimately awarded approximately

$4.8 million to other defrauded investors5 and $1.5 million to the

government on the civil forfeiture count. Aguirre was sentenced to

57 months in prison, the upper end of the Guidelines' recommended

range. At the end of the hearing, the court dismissed counts 19

through 30 of the indictment. Final judgment was entered on

January 25, 2008 and, four days later, appellants filed a notice of

appeal as to the denial of their motion for restitution.6

The government now concedes that, under the definition of

"victim" used in the VWPA and MVRA, appellants were entitled to

restitution notwithstanding the dismissal of counts 28 and 29.

Further, they acknowledge that, under the MVRA, the district court

had no discretion to deny appellants restitution. See 18 U.S.C.

366A (district court "shall order" defendants convicted of certain

offenses, including fraud resulting in pecuniary loss, to pay

restitution to identifiable "victims"). Nonetheless, as we

5
We allowed one such victim, Wells Capital Management, Inc.,
successor in interest to Strong Capital Management, to participate
in these proceedings as a provisional intervenor only.
6
On May 8, 2008, we ordered appellants to show cause as to why
their appeal should not be dismissed for want of jurisdiction. On
September 5, 2008, we directed the parties to address certain
issues we now consider in this appeal.

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discuss, the government contends that appellants may no longer

claim their right to restitution due to procedural defects in their

challenge.

B. Crime Victims and the Federal Restitution Statutes

Before turning to the issues specific to this appeal, we

provide a brief sketch of the network of federal statutes affecting

crime victims' rights to restitution.

1. The Victim Witness Protection Act

The VWPA authorizes a district court in criminal

sentencing proceedings to "order 'in addition to or . . . in lieu

of any other penalty authorized by law, that the defendant make

restitution to any victim' of the offense." United States v.

Acosta, 303 F.3d 78, 86 (1st Cir. 2002)(quoting 18 U.S.C. § 3663

(a)). The purpose of the statute is to "insure that the wrongdoer

make good[], to the degree possible, the harm he has caused his

victim." United States v. Vaknin, 112 F.3d 579, 582 (1st Cir.

1997)(quoting S. Rep. No. 97-532, at 31 (1982), reprinted in 1982

U.S.C.C.A.N. 2515, 2536). When the VWPA was enacted in 1982, it

represented a "tectonic" shift in the criminal restitution regime,

transforming "criminal restitution from a sporadically imposed

condition of probation into the sentencing norm in cases involving

quantifiable economic loss." Id. (explaining that "federal judges

were not able to impose criminal restitution as a condition of

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probation until 1925 when Congress passed the Federal Probation

Act" and, even after that, "used the power sparingly").

In its earlier forms, the VWPA did not define who was a

"victim" eligible for restitution. In 1990 the Supreme Court

filled that gap, construing the statute "to authorize an award of

restitution only for the loss caused by the specific conduct that

is the basis of the offense of conviction," and not counts which

were dismissed. Hughey v. United States, 495 U.S. 411, 413, 421

(1990)(recognizing that "[t]he essence of a plea agreement is that

both the prosecution and the defense make concessions to avoid

potential losses"). Congress responded in short order, amending

the VWPA to provide that "[f]or purposes of restitution, a victim

of an offense that involves as an element a scheme, a conspiracy,

or pattern of criminal activity means any person directly harmed by

the defendant's conduct in the course of the scheme, conspiracy or

pattern." Crime Control Act of 1990, Pub. L. No. 101-647, 104

Stat. 4789 (codified at 18 U.S.C. § 3663(a)(2)). In such cases,

like this one, the district court may now "order restitution

without regard to whether the conduct that harmed the victim was

conduct underlying the offense of conviction." Acosta, 303 F.3d at

86-87.

In 1996 Congress amended the VWPA again, retaining the

specific definition of "victim" for crimes involving a "scheme,

conspiracy, or pattern of activity" and adding more generally that

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"the term 'victim' means a person directly and proximately harmed

as a result of the commission of an offense for which restitution

may be ordered." Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)(codified

at 18 U.S.C. § 3663(a)(2)).

2. The Mandatory Victim Restitution Act

Also in 1996, Congress enacted the MVRA, which "compels

a sentencing court to order a defendant convicted of certain

crimes, including crimes against property, to make restitution to

his victim." United States v. Innarelli, 524 F.3d 286, 292-93 (1st

Cir. 2008)(emphasis added); see 18 U.S.C. § 3663A. To that end,

the statute directs district courts to "order restitution to each

victim in the full amount of each victim's losses . . . without

consideration of the economic circumstances of the defendant." 18

U.S.C. § 3664(f)(1)(A). The definition of "victim" under the MVRA

is substantively identical to that set forth in the VWPA, as

amended. Id. 3663A(a)(2); see, e.g., United States v. Chalupnik,

514 F.3d 748, 753 (8th Cir. 2008) (MVRA and VWPA "contain identical

definitions of the term 'victim'"). The MVRA's "changes reflect a

[] fundamental shift in the purpose of restitution" away from its

strictly penal origins; "[t]he new restitution scheme is not merely

a means of punishment and rehabilitation, but an 'attempt to

provide those who suffer the consequences of crime with some means

of recouping the personal and financial losses.'" United States v.

-10-
Perry, 360 F.3d 519, 530 (6th Cir. 2004)(quoting H.R. Rep. No.

104-16, at 5 (1995)).

3. The Crime Victims Rights Act

This shift towards a more compensatory regime found

further expression in the CVRA, enacted in 2004. See 18 U.S.C.

§ 3771. The CVRA enshrines a panoply of crime victims' "rights,"

including rights "to be reasonably heard at any public proceeding

in the district court involving release, plea, [or] sentencing" and

"to full and timely restitution as provided in law." Id. §§ 3771

(a)(4), (a)(6). The CVRA obligates district courts in criminal

proceedings to "ensure that the crime victim is afforded [such]

rights" and requires government prosecutors to "make their best

efforts to see that crime victims are notified of, and accorded,

the[ir] rights." Id. §§ 3771(b)(1), (c)(1). It further provides

that the "crime victim or the crime victim's lawful representative,

and the attorney for the Government may assert the [victim's]

rights." Id. § 3771(d)(1).

Critically for purposes of this appeal, the CVRA states,

under the heading "Enforcement and limitations":

The [victim's] rights . . . shall be asserted
in the district court in which a defendant is
being prosecuted for the crime or, if no
prosecution is underway, in the district court
in the district in which the crime occurred.
The district court shall take up and decide
any motion asserting a victim's right
forthwith. If the district court denies the
relief sought, the movant may petition the
court of appeals for a writ of mandamus. The

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 court of appeals may issue the writ on the
order of a single judge pursuant to circuit
rule or the Federal Rules of Appellate
Procedure. The court of appeals shall take up
and decide such application forthwith within
72 hours after the petition has been filed. In
no event shall proceedings be stayed or
subject to a continuance of more than five
days for purposes of enforcing this chapter
[this section]. If the court of appeals denies
the relief sought, the reasons for the denial
shall be clearly stated on the record in a
written opinion.

Id. § 3771(d)(3) (emphasis added). In the alternative, the statute

provides that "[i]n 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." Id.

§ 3771(d)(4)(emphasis added).7 The CVRA defines "crime victim" for

purposes of its provisions as "a person directly and proximately

harmed as a result of the commission of a Federal offense or an

offense in the District of Columbia." Id. § 3771(e).

7
In addition, the CVRA provides an additional "[l]imitation on
relief":

In no case shall a failure to afford a right under this
chapter [this section] provide grounds for a new trial.
A victim may make a motion to re-open a plea or sentence
only if--
(A) the victim has asserted the right to be heard
before or during the proceeding at issue and such right
was denied;
(B) the victim petitions the court of appeals for a
writ of mandamus within 14 days; and
(C) in the case of a plea, the accused has not pled
to the highest offense charged.
This paragraph does not affect the victim's right to
restitution as provided in title 18, United States Code.
18 U.S.C. § 3771(d)(5).

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 Notwithstanding the general shift in the restitution

statutes towards a more compensatory regime, the law in this

circuit remains that "restitution ordered as part of a criminal

sentence is a criminal penalty, not a civil remedy." United States

v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006). But see United

States v. Serawop, 505 F.3d 1112, 1122 & n.4 (10th Cir. 2007)

(stating that "the MVRA does not inflict criminal punishment, and

thus is not punitive," but acknowledging that many courts hold

otherwise).

II. Discussion

"We review de novo questions of law regarding the

application of restitution statutes." United States v. Berger, 574

F.3d 1202, 1204 (9th Cir. 2009); see GMC v. Darling's, 444 F.3d 98,

107 (1st Cir. 2006).

A. Appellate Review of Restitution Orders

Appellants first contend that a petition for mandamus is

not the exclusive remedy for crime victims seeking to challenge a

district court's restitution order. Rather, they contend that the

CVRA offers a procedural choice: petition the court of appeals for

a writ of mandamus on an expedited basis, or file an appeal in the

normal course under the general appellate jurisdictional statute,

which grants us jurisdiction over all "final decisions" of the

federal district courts. 28 U.S.C. § 1291.

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 At the outset, we clarify that the issue before us is not

whether we lack jurisdiction under § 1291, which "constrains what

may be appealed, not who may bring such appeals"; "the issues of

jurisdiction under § 1291 and non-party appellate rights are

distinct." United States v. Hunter, No. 08-4010, 2008 U.S. App.

LEXIS 24319, at *7, 9 (10th Cir. Dec. 2, 2008)(emphasis added).

Instead, our inquiry turns on whether appellants, as crime victims

denied their right to restitution under the federal statutes, may

appeal the restitution component of a defendant's criminal

sentence. See id. at *9.

"The rule that only parties to a lawsuit, or those that

properly become parties, may appeal an adverse judgment, is well

settled." Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam,

civil judgment); Karcher v. May, 484 U.S. 72, 77 (1987) ("[O]ne who

is not a party or has not been treated as a party to a judgment has

no right to appeal therefrom."). Exceptions to this general rule

exist, typically in the context of civil disputes, but they "are

few and far between." Microsystems Software, Inc. v. Scandinavia

Online AB, 226 F.3d 35, 40 (1st Cir. 2000) (limited exception for

nonparty challenge of denial of motion to intervene); see Nat'l

Ass'n of Chain Drug Stores v. New Eng. Carpenters Health Benefits

Fund, 582 F.3d 30, 41 (1st Cir. 2009)(explaining, in context of

civil claims, that "the fact that a decision against a defendant

may practically impact a third party is not ordinarily enough for

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appellant status absent intervention or joinder in the trial

court").

Notwithstanding the rights reflected in the restitution

statutes, crime victims are not parties to a criminal sentencing

proceeding. See, e.g., United States v. Palma, 760 F.2d 475, 479

(3d Cir. 1985) (under VWPA, "the victim . . . is not made a party

to the sentencing proceeding"); United States v. Brown, 744 F.2d

905, 909-10 (2d Cir. 1984); see also Ziskind, 471 F.3d at 270.

Thus, the baseline rule is that crime victims, as non-parties, may

not appeal a defendant's criminal sentence. See Hunter, 2008 U.S.

App. LEXIS 24319, at *7; United States v. Grundhoefer, 916 F.2d

788, 793 (2d Cir. 1990) ("The victim as a non-party is accorded

only a limited presence at a sentencing proceeding and has no right

to appeal an inadequate remedy."); United States v. Franklin, 792

F.2d 998, 999-1000 (11th Cir. 1986) (dismissing appeal because

"[a]ppellant cites no statute, including the [VWPA], and we find

none, that would give us the authority to entertain an appeal by a

victim . . . who was not a party to the sentencing proceeding in

the district court"); see also 18 U.S.C. § 3742 (providing that the

government and the defendant, under appropriate circumstances, may

appeal a criminal sentence).

Appellants maintain that the rule against appellate

review by non-parties does not apply to crime victims seeking to

challenge restitution orders, essentially because those orders

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affect their substantial rights as reflected in the restitution

statutes. But the cases they rely on do not support this premise.

First, appellants point to a collection of civil cases in which

courts have entertained direct appeals by non-parties. E.g.,

Devlin v. Scardelletti, 536 U.S. 1 (2002)(permitting unnamed class

member to appeal class action settlement). However, as the Tenth

Circuit has aptly explained:

On the issue of non-party appeals, there is an
important distinction between civil and
criminal cases. Civil cases often implicate
the pecuniary rights of non-parties, such as
the unnamed class member in Devlin. . . .
Criminal trials, on the other hand, place an
individual citizen against the United States
government. While non-parties may have an
interest in aspects of the case, they do not
have a tangible interest in the outcome. This
distinction is evidenced by our procedural
rules. The Federal Rules of Civil Procedure
allow non-parties to intervene to assert their
rights. The Federal Rules of Criminal
Procedure contain no comparable provision.
This distinction recognizes that non-parties
often have a unique interest in civil cases.
Because non-parties do not have a comparable
unique interest in the outcome of criminal
trials, we do not consider Devlin or [similar
civil cases] persuasive [authority in support
of the proposition that crime victims may
bring an appeal of a restitution sentence].

Hunter, 2008 U.S. App. LEXIS 24319, at *10-11.

Second, appellants cite a handful of cases in which

courts of appeals have permitted non-parties to challenge

collateral orders issued in the course of criminal sentencing

proceedings, but not the sentence itself. For example, in United

-16-
States v. Berger, the Ninth Circuit asserted without discussion

that it had proper jurisdiction under § 1291 over an appeal brought

by a defendant's wife, not a crime victim, who challenged a

district court's order regarding the distribution of proceeds from

an illegal sale of her husband's assets "to the victims of [his]

fraud who were entitled to receive restitution." 574 F.3d 1202,

1204 (9th Cir. 2009). In In re Siler, the Sixth Circuit

entertained a direct appeal brought by crime victims seeking to

inspect a defendant's PSR pursuant to their rights under the CVRA,

"although they were not technically parties below" and despite the

general rule that non-parties may not bring an appeal, because "the

district court effectively treated the [victims] like intervening

parties and decided the merits of their motions." 571 F.3d 604,

608 (6th Cir. 2009). Neither case involved a crime victim's direct

appeal of a criminal restitution sentence, nor would a result in

the third party's favor have required the court to disturb the

sentence imposed.

Finally, appellants point to United States v. Cienfuegos,

which involved a direct appeal of the restitution component of a

defendant's sentence brought by the government on behalf of a crime

victim under the MVRA. 462 F.3d 1160, 1161 (9th Cir. 2006).

Cienfuegos provides no support for the proposition that crime

victims have the right to bring a direct appeal of a criminal

sentence.

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 None of the cases on which appellants rely call into

question the default rule that crime victims have no right to

directly appeal a defendant's criminal sentence, under the CVRA or

otherwise. Rather, the CVRA 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

states that in the normal course the government may assert victims'

rights on their behalf in a direct appeal. 18 U.S.C. § 3771

(d)(3), (d)(5); see TAMA v. Lewis, 444 U.S. 11, 19 (1979)("[W]here

a statute expressly provides a particular remedy of remedies, a

court must be chary of reading others into it."); Marbury v.

Madison, 5 U.S. 137, 175 (1803)("[T]he appellate jurisdiction may

be exercised in a variety of forms, and [] if it be the will of the

legislature that a mandamus should be used for that purpose, that

will must be obeyed.").

Accordingly, we join the Tenth Circuit to 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." Hunter, 2008 U.S. App.

LEXIS 24319, at *3; see also In re Antrobus, 519 F.3d 1123, 1129

(10th Cir. 2008)("While the CVRA provides individuals seeking

review of a district court's 'victim status' decision with mandamus

review, it simultaneously affords the government with the ability

to obtain ordinary appellate review of the same decision."). The

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government alone may bring a direct appeal of a defendant's

sentence on behalf of a victim denied his rights under the CVRA.

See 18 U.S.C. § 3771(d)(5); see also 18 U.S.C. § 3742.

B. Availability of Mandamus Review

The CVRA provides that the court of appeals "shall take

up and decide" mandamus petitions under the statute "forthwith

within 72 hours after the petition has been filed." 18 U.S.C.

§ 3771(d)(3). The parties do not dispute that we have authority to

review mandamus petitions under the CVRA outside of the 72 hour

window set forth in the statute. Cf. Kenna v. United States Dist.

Ct. for the Centr. Dist. of Cal., 435 F.3d 1011, 1018 (9th Cir.

2006)(ruling on CVRA mandamus petition outside of statutory

timeframe). The CVRA imposes no consequence for failure to comply

with the time limitation, and in such circumstances we construe

such limitations as precatory, rather than mandatory. See

Rodríguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d

270, 272-73 (1st Cir. 1998) (construing statutory deadline as

"precatory not mandatory" where it did not "contain both an express

command that the official act within a given temporal period and a

consequence attached to noncompliance" (emphasis added)).

The parties also agree that we have the authority to

convert appellants' direct appeal into a petition for mandamus

relief. See, e.g., In re: Providence Journal Co., 293 F.3d 1, 9

(1st Cir. 2002) ("Under the All Writs Act, a federal court of

-19-
appeals has the power to treat an attempted appeal from an

unappealable (or possibly unappealable) order as a petition for a

writ of mandamus." (internal citations, quotation marks, and

alteration omitted)); see 28 U.S.C. § 1651. However, at the

present juncture, conversion of this appeal into a petition for

mandamus relief would serve no purpose, and we decline to exercise

our discretion to do so.

The CVRA plainly envisions that crime victims' petitions

challenging a denial of their rights will be taken up and decided

in short order. It requires expeditious consideration by the

district court, quick appellate review, and provides that a victim

may not move to disturb a defendant's plea or sentence unless,

among other things, "the victim petitions the court of appeals for

a writ of mandamus within 14 days" of the denial of the victim's

motion in the district court. 18 U.S.C. §§ 3771(d)(3), 3771(d)(5).

We are mindful that the federal restitution statutes are intended

to protect victims, not defendants. See, e.g., United States v.

Rostoff, 164 F.3d 63, 66 (1st Cir. 1999)(applying VWPA). However,

the criminal justice system also has a strong interest in the

finality of criminal sentences. Olsen v. Correiro, 189 F.3d 52, 69

(1st Cir. 1999) (noting society's "interest in the integrity of the

system of compromise resolution of criminal charges"); see

Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("[T]he guilty plea

and the often concomitant plea bargain are important components of

-20-
this country's criminal justice system. . . . [The] advantages can

be secured, however, only if dispositions by guilty plea are

accorded a great measure of finality."); see also Teague v. Lane,

489 U.S. 288, 309 (1989)("[T]he principle of finality . . . is

essential to the operation of our criminal justice system.").

These finality concerns animate the CVRA's procedural mechanisms.

The CVRA was in force when appellants elected to pursue

a direct appeal rather than petition for the writ as provided by

statute, and more than two years have passed since the district

court sentenced Aguirre. Under these circumstances, we conclude

that appellants would not be entitled to mandamus relief regardless

of whether we applied the exacting standard of review governing

traditional petitions for the writ, see In re Dean, 527 F.3d 391,

394 (5th Cir. 2008)(applying traditional mandamus standard to

petition under CVRA); In re Antrobus, 519 F.3d at 1125 (same), or

the more lenient, abuse of discretion standard which some courts

have found appropriate when considering crime victims' petitions

under the CVRA, see In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555,

562-63 (2d Cir. 2005) (applying abuse of discretion standard);

Kenna, 435 F.3d at 1017 (Ninth Circuit, same); see also In re

Simons, No. 09-3109, 2009 U.S. App. LEXIS 8694, at *3 (6th Cir.

Feb. 5, 2009) (noting the "split of authority among the circuit

courts as [to] whether a petition for a writ of mandamus under the

CVRA is reviewed under the traditional standard applied to

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petitions under the All Writs Act or a more lenient,

appellate-review standard"). Thus, because conversion of this

appeal into a mandamus petition would be futile, we decline to

exercise our discretion to do so. We therefore have no need to

decide which standard of review governs mandamus petitions under

the CVRA.

Affirmed.

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