United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2998
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Jamie Smith, *
*
Appellant. *
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Submitted: May 12, 2011
Filed: September 22, 2011
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Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1 District Judge.
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COLLOTON, Circuit Judge.
Jamie Smith pled guilty to conspiring to distribute 500 grams or more of a
mixture or substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846, and to possession with intent to distribute five grams
or more of pure methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
(b)(1)(B). The district court2 sentenced Smith to 168 months’ imprisonment, and
ordered forfeiture of $10,000 pursuant to 21 U.S.C. § 853. Smith appeals, contending
that the court erred in applying a two-level specific offense characteristic for
possession of a firearm, pursuant to USSG § 2D1.1(b)(1). He also argues that his
sentence is unreasonable, and that the forfeiture order is unauthorized by statute and
unconstitutional. We affirm.
I.
In June 2009, federal law enforcement officers executed a search warrant at
Smith’s residence and found approximately 45.5 grams of methamphetamine mixture,
a digital scale, and drug packaging materials in the “southwest bedroom/den/TV
room.” Approximately fifteen feet from the methamphetamine, the officers found an
unloaded Colt Sporter semi-automatic assault rifle. The rifle was located in a partially
open gun case that extended from the open door of a closet in Smith’s living room.
The closet also contained firearm cleaning materials, targets, two empty magazines,
and ammunition.
A grand jury indicted Smith on drug trafficking charges. Pursuant to 21 U.S.C.
§ 853, the indictment sought criminal forfeiture of proceeds obtained from the
offenses, “including but not limited to” $1,000,000 in United States currency or
substitute assets. The court accepted Smith’s guilty plea on March 10, 2010. On June
24, 2010, the government requested a preliminary forfeiture order, seeking a $10,000
money judgment against Smith. The court granted the order on June 30, 2010. Smith
filed a motion challenging the forfeiture, and at a sentencing hearing, the court heard
arguments from both Smith and the government as to the propriety of the criminal
forfeiture order. At the hearing in August 2010, the court determined that the
2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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preliminary order of forfeiture was proper, and on September 9, 2010, the court
entered a final order of forfeiture.
Smith also objected to the application of a two-level specific offense
characteristic under USSG § 2D1.1(b)(1) for possession of a firearm. The district
court found that the adjustment was appropriate, and determined that Smith’s
guideline range was 135 to 168 months’ imprisonment. The court imposed a sentence
of 168 months’ imprisonment.
II.
In considering Smith’s challenge to the calculation of his advisory guideline
range, we review the district court’s factual determinations for clear error and its
application of the sentencing guidelines de novo. United States v. San-Miguel, 634
F.3d 471, 474 (8th Cir. 2011). A specific offense characteristic applicable to drug
trafficking offenses provides for an increase of two offense levels if a defendant
possessed a firearm. USSG § 2D1.1(b)(1). The government bears the burden to
establish by a preponderance of the evidence that the adjustment is appropriate.
United States v. Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003). The adjustment
“should be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1, comment. (n.3).
Smith does not dispute that he possessed a rifle that was found at his residence
in proximity to methamphetamine. He claims that because he used the gun solely for
target practice, there is no relationship between the rifle and his offenses. But the use
or intended use of firearms for one purpose, even if lawful, does not preclude a
finding that the defendant used the firearm for the prohibited purpose of facilitating
a drug trade. Brown v. United States, 169 F.3d 531, 533 (8th Cir. 1999). Although
mere presence is insufficient to establish a nexus between a firearm and drug offense,
see United States v. Moore, 212 F.3d 441, 447 (8th Cir. 2000), “[a] nexus exists where
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there is a temporal and spatial relation between the weapon, the drug trafficking
activity, and the defendant.” Perez-Guerrero, 334 F.3d at 783 (internal quotations
omitted). Smith was present when officers found a rifle approximately fifteen feet
from a large amount of drugs. The rifle was accessible in a partially open case that
extended from the open door of a closet, and Smith admitted that he normally stored
drugs at his home. In these circumstances, the district court’s finding that Smith
possessed a firearm in connection with his offense was not clearly erroneous.
Smith also challenges the substantive reasonableness of his sentence. We
review the reasonableness of the district court’s sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). Because the
district court imposed a sentence within the advisory guideline range, we accord the
sentence a presumption of reasonableness. United States v. Ruelas-Mendez, 556 F.3d
655, 657 (8th Cir. 2009).
We reject Smith’s claims that the district court erred by ignoring his minimal
criminal history and “limited” role in the conspiracy, and that the court gave undue
weight to the quantity of drugs involved in his offenses. The sentencing guidelines
account for Smith’s minimal criminal history. See USSG § 4A1.1; United States v.
Wilcox, 487 F.3d 1163, 1175 (8th Cir. 2007). The record does not support Smith’s
claim that he played a limited role in the conspiracy, as Smith stored over ten pounds
of methamphetamine at his residence for distribution during the conspiracy. Finally,
the court’s decision to weigh certain factors under 18 U.S.C. § 3553(a) more heavily
than other factors that might favor leniency is a permissible exercise of the court’s
discretion. Ruelas-Mendez, 556 F.3d at 658.
The district court considered several relevant aggravating factors: that Smith
had a history of alcohol and substance abuse, disobeyed court orders by using drugs
while on pretrial release, failed to pay his child support, trafficked a large quantity of
drugs, and testified untruthfully at the sentencing hearing. The court’s explanation
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satisfies us that the presumptively reasonable sentence is indeed substantively
reasonable.
III.
Smith asserts that the court’s criminal forfeiture order in the form of a money
judgment should be vacated, because a money judgment is not authorized by statute.
He also contends that the order violates his procedural due process rights, his
substantive due process rights, the Double Jeopardy Clause, and the Eighth
Amendment prohibition against excessive fines.3 “We review claims of constitutional
error and issues of statutory construction de novo.” Royal v. Kautzky, 375 F.3d 720,
722 (8th Cir. 2004) (internal quotations omitted).
A.
21 U.S.C. § 853 provides that a defendant convicted of a drug trafficking
offense “shall forfeit to the United States . . . any property constituting, or derived
from, any proceeds the person obtained, directly or indirectly, as the result of such
violation.” Id. § 853(a). Property subject to forfeiture “includes – (1) real property,
including things growing on, affixed to, and found in land; and (2) tangible and
intangible personal property, including rights, privileges, interests, claims, and
securities.” Id. § 853(b). Section 853(p) provides that “the court shall order the
forfeiture of any other property of the defendant,” if “as a result of any act or omission
of the defendant,” the property subject to forfeiture:
(A) cannot be located upon the exercise of due diligence;
3
Smith also claims that the court misapplied the sentencing guidelines in
imposing the money judgment, but the court entered the money judgment pursuant to
21 U.S.C. § 853.
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(B) has been transferred or sold to, or deposited with, a third party;
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or
(E) has been commingled with other property which cannot be divided
without difficulty.
Id. § 853(p)(1).
The district court ordered forfeiture of $10,000 in drug proceeds, but these
funds could not be located. Smith had insufficient assets at the time of sentencing for
the court to order forfeiture of substitute assets that could be seized immediately.
Therefore, the court entered a money judgment for $10,000, and the question arises
whether such a judgment is authorized by the provision of § 853(p) for forfeiture of
“any other property of the defendant.” This court has not addressed the point directly.
Cf. United States v. Gregoire, 638 F.3d 962, 971-72 (8th Cir. 2011).
At least five circuits have held that § 853 permits imposition of a money
judgment on a defendant who has no assets at the time of sentencing. See United
States v. Awad, 598 F.3d 76, 78 (2d Cir. 2010) (per curiam); United States v. Vampire
Nation, 451 F.3d 189, 201-02 (3d Cir. 2006); United States v. Casey, 444 F.3d 1071,
1077 (9th Cir. 2006); United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006); United
States v. Baker, 277 F.3d 955, 970 (7th Cir. 2000). We think their conclusion is
sound. The statute is phrased broadly, allowing forfeiture of “any other property of
the defendant,” 21 U.S.C. § 853(p), without a temporal limit. When that broad text
is considered together with the express statutory direction that the provision is to “be
liberally construed to effectuate its remedial purposes,” 21 U.S.C. § 853(o), there is
little doubt that “any other property” extends to property acquired by the defendant
after the imposition of sentence. As several courts have noted, a contrary
interpretation would give defendants an incentive to dissipate ill-gotten assets in order
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to avoid a forfeiture sanction, a result that would frustrate the remedial purposes of the
statute in contravention of § 853(o). See Awad, 598 F.3d at 78-79; Vampire Nation,
451 F.3d at 202; Casey, 444 F.3d at 1074. The district court was authorized by
§ 853(p) to enter the money judgment.
B.
Procedural due process requires that an individual receive adequate notice and
procedures to contest the deprivation of property rights. United States v. Ritchie
Special Credit Invs., Ltd., 620 F.3d 824, 835 (8th Cir. 2010). We reject Smith’s
arguments that the indictment failed to provide him sufficient notice that the
government might seek a money judgment, and that he was entitled to a hearing
before the district court entered a preliminary forfeiture order. The indictment stated
that the government sought forfeiture, pursuant to 21 U.S.C. § 853, of cash proceeds
of $1,000,000 obtained as a result of the charged offenses, or substitute assets. The
indictment need not specify what property will be sought as substitute assets, see
United States v. Hatcher, 323 F.3d 666, 673 (8th Cir. 2003), or state explicitly that the
government might seek a money judgment. See United States v. Kalish, 626 F.3d 165,
169 (2d Cir. 2010); United States v. Navarro-Ordas, 770 F.2d 959, 969 n.19 (11th Cir.
1985). The indictment stated that the government sought cash proceeds, providing
adequate notice that a money judgment might be sought. See Kalish, 626 F.3d at 169.
Smith filed a motion in opposition to the forfeiture, and argued his position at a
hearing before the court entered the final forfeiture order. Smith therefore received
adequate notice and had a meaningful opportunity to advance his position.
Smith next contends that the money judgment violates his substantive due
process rights, because there is no nexus between money that he may obtain in the
future and his offenses. The only support Smith cites for his purported nexus
requirement is Federal Rule of Criminal Procedure 32.2(b)(1)(A). Although Rule
32.2(b)(1)(A) requires a nexus between specific property sought for forfeiture and the
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offense, it states that if the government seeks a money judgment, “the court must
determine the amount of money that the defendant will be ordered to pay.” Rule 32.2
also contains provisions for ordering forfeiture of substitute property. Fed. R. Crim.
P. 32.2(b)(2)(A), (e)(1)(B). A constitutional nexus requirement for all property
subject to forfeiture would render the forfeiture of substitute assets, by definition,
unconstitutional. The statute is rationally related to legitimate “punitive, remedial,
and corrective purposes,” and it is therefore consistent with the Due Process Clause.
See United States v. Shepherd, 171 F. App’x 611, 616 (9th Cir. 2006); cf. Libretti v.
United States, 516 U.S. 29, 47-48 (1995) (upholding criminal forfeiture of, inter alia,
substitute property).
Smith also asserts a violation of double jeopardy. “The Double Jeopardy
Clause protects against efforts to impose punishment for the same offense in two or
more separate proceedings; double jeopardy concerns are not implicated, however,
where multiple punishments are imposed for the same offense in a single proceeding,
so long as Congress intended that result.” United States v. Smith, 75 F.3d 382, 384
(8th Cir. 1996). “Forfeiture is an element of the sentence imposed following
conviction,” and “Congress plainly intended forfeiture of assets to operate as
punishment for criminal conduct . . . , not as a separate substantive offense.” Libretti,
516 U.S. at 38-39. Because Smith was punished pursuant to a single prosecution, his
claim fails. That the court entered the final forfeiture order almost two weeks after
entering the judgment does not establish a double jeopardy violation. The district
court had entered a preliminary forfeiture order, and the court at sentencing rejected
Smith’s argument that the forfeiture order was not proper under the law. The failure
to include a forfeiture order in the judgment was a clerical error, and the court retained
jurisdiction to correct the judgment by entering a final forfeiture order. See Fed. R.
Crim. P. 36; Hatcher, 323 F.3d at 673-74.
Smith finally avers that the money judgment is an excessive fine because he is
indigent. A punitive forfeiture violates the Excessive Fines Clause if “the amount of
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the forfeiture is grossly disproportional to the gravity of the defendant’s offense.”
United States v. Bajakajian, 524 U.S. 321, 337 (1998). “[A] defendant’s inability to
satisfy a forfeiture at the time of conviction, in and of itself, is not at all sufficient to
render a forfeiture unconstitutional, nor is it even the correct inquiry.” United States
v. Levesque, 546 F.3d 78, 85 (1st Cir. 2008). Even if it appears at the time of
sentencing that Smith cannot satisfy the forfeiture in the future, there is always a
possibility that he might legitimately come into money. Id. Smith was highly
culpable; he participated in a large drug conspiracy, storing over ten pounds of
methamphetamine at his residence for distribution. The seriousness of his offense is
reflected in the applicability of a 120-month statutory minimum sentence. See 21
U.S.C. § 841(b). The $10,000 money judgment, representing proceeds from Smith’s
drug trafficking offenses, is not grossly disproportional to those same offenses.
* * *
The judgment of the district court is affirmed.
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