FILED

FOR PUBLICATION JUN 19 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: STAKE CENTER LOCATING, No. 13-72062 INC., Crime Victim. D.C. No. 2:13-cr-00089-JCM-

GWF-1

STAKE CENTER LOCATING, INC.,

Petitioner, OPINION

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA, LAS

VEGAS,

Respondent,

DEBORAH A. DiFRANCESCO,

Defendant - Real Party in Interest,

UNITED STATES OF AMERICA,

Plaintiff - Real Party in Interest.

Petition for Writ of Mandamus from the United States District Court for the District of Nevada Submitted June 17, 2013 * Filed June 20, 2013

Before: HAWKINS, GOULD, and WATFORD, Circuit Judges.

PER CURIAM:

Petitioner Stake Center Locating, Inc., a victim of defendant Deborah

DiFrancesco’s (“DiFrancesco”) crimes, petitions for a writ of mandamus pursuant

to 18 U.S.C. § 3771, the Crime Victims Rights Act (“CVRA”). Because we find

that the petition for a writ of mandamus is premature, we deny the petition.

DiFrancesco was charged with one count of income tax evasion in violation

of 26 U.S.C. § 7201 and three counts of wire fraud in violation of 18 U.S.C. §

1343. On May 29, 2013, pursuant to a plea agreement, DiFrancesco pled guilty to

all charges. In her plea agreement, DiFrancesco agreed to pay petitioner restitution

in the amount of $763,846.34. DiFrancesco’s sentencing hearing is scheduled for

September 4, 2013.

Prior to DiFrancesco’s May 29, 2013 plea hearing, petitioner filed a motion

in the district court for relief pursuant to the CVRA and the Mandatory Victim

Restitution Act (“MVRA”). In addition to requesting that the district court reject

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 13-72062 the plea agreement, petitioner requested mandatory forfeiture of certain assets

implicated in DiFrancesco’s criminal activities, which are no longer in

DiFrancesco’s possession. The district court denied petitioner’s motion without

prejudice. Petitioner challenges this denial.

In reviewing CVRA mandamus petitions, we are not required to balance the

factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.

1977). Rather, this court “must issue the writ whenever we find that the district

court’s order reflects an abuse of discretion or legal error.” See Kenna v. United

States Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).

Petitioner’s request for restitution is not yet ripe. Victims are provided a

right to “full and timely restitution as provided in law” pursuant to the CVRA. 18

U.S.C. § 3771(a)(6). The MVRA provides for restitution “when sentencing a

defendant.” 18 U.S.C. § 3663A(a)(1); see also § 3663A(c)(1) (“This section shall

apply in all sentencing proceedings....”). The right to “full and timely restitution”

attaches at the defendant’s sentencing hearing, where the district court may order

restitution after considering the presentence report and other documentation or

testimony. See 18 U.S.C. § 3664. Because DiFrancesco’s sentencing is still

pending, petitioner is not currently entitled to restitution. Moreover, the district

3 13-72062 court has invited petitioner to renew its request for restitution in connection with

DiFrancesco’s sentencing hearing. See May 29, 2013 Transcript at 24.

Because petitioner’s claim is unripe, we decline to consider the merits of

petitioner’s claims to restitution. Accordingly, the petition for a writ of mandamus

is denied.

DENIED.

FILED

JUN 19 2013

MOLLY C. DWYER, CLERK

HAWKINS, Circuit Judge, concurring: U .S. C O U R T OF APPE ALS

While I agree it is appropriate to refuse mandamus relief on prematurity

grounds, I would go further and deny the petition on the merits. Regardless of

whether Petitioner is entitled to restitution from the defendant in this case, the

relief it seeks here -- an order directing the U.S. Attorney to seize assets and a

criminal forfeiture against the I.R.S. -- pertains only to third parties. Among a

number of flaws in the petition, the authorities Petitioner relies upon, quite

logically, apply only to restitution or forfeiture from criminal defendants. See 18

U.S.C. § 3663A(b) (“[t]he court shall order . . . that the defendant make restitution

to the victim of the offense”) (emphasis added); Fed. R. Crim. P. 32.2(a) (requiring

that the government provide “notice to the defendant” in the indictment or

4 13-72062 information that it will seek the forfeiture of property) (emphasis added). Absent

authority to order the seizure of assets from, or criminal forfeiture against, third

parties, this court simply cannot grant the relief Petitioner seeks.

5 13-72062 Counsel Listing Kenneth P. Childs, Stake Center Locating, Inc., for Petitioner.

Elizabeth Olson White, Appellate Chief and Assistant U.S. Attorney, District of Nevada, for Real Party in Interest United States of America.

Mark B. Bailus, Bailus Cook & Kelesis, Ltd., for Real Party in Interest Deborah DiFrancesco.

6 13-72062