United States v. Herder

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4420
KINSEY CORY HERDER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Senior District Judge.
(1:07-cr-00423-CMH-1)

Argued: October 30, 2009

Decided: February 11, 2010

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Davis wrote the majority opinion, in which
Judge Motz joined. Judge Niemeyer wrote a separate opinion
concurring in part and dissenting in part.

COUNSEL

ARGUED: Geremy C. Kamens, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. David Brian Goodhand, OFFICE OF THE
2 UNITED STATES v. HERDER
UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Pub-
lic Defender, Richard H. McWilliams, Assistant Federal Pub-
lic Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Jeanine Linehan, Assis-
tant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

OPINION

DAVIS, Circuit Judge:

Kinsey Cory Herder ("Herder") appeals his conviction and
sentence following a jury trial on one count of possession
with the intent to distribute five grams or more of crack
cocaine and one count of possession with the intent to distrib-
ute marijuana, both in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced Herder to 41 months’ imprisonment
— a sentence at the bottom of the applicable Sentencing
Guidelines range — as well as five years of supervised
release, a $200 special assessment, and forfeiture of property
and proceeds obtained as a result of the offenses of the con-
viction. On appeal, Herder alleges that (1) there is insufficient
evidence to support his conviction; (2) the district court erred
in declining to give his proposed jury instruction on posses-
sion; (3) his sentence is procedurally unreasonable; and, (4)
the money found on his person at the time of his arrest should
not have been forfeited. For the following reasons, we affirm
the conviction and forfeiture, vacate Herder’s sentence, and
remand for resentencing and to correct a clerical error in the
judgment.

I.

Around midnight on June 20, 2007, Fauquier County Sher-
iff’s Deputy Paul Cable ("Deputy Cable") was patrolling a
 UNITED STATES v. HERDER 3
commuter parking lot, which was used primarily by commut-
ers who carpool during rush hour and was known to host drug
activity after hours. Members of the Sheriff’s Office and the
Blue Ridge Narcotics Task Force had conducted undercover
drug purchases in the lot throughout the prior year, the last
arrest occurring in May 2007. Deputy Cable observed two
vehicles, a Jeep Cherokee and a silver Buick, leaving the lot.
He followed the Buick, which was occupied solely by Herder.
According to Deputy Cable, Herder was driving "overcau-
tiously," keeping under the speed limit and signaling well in
advance of turns. Deputy Cable did not follow directly behind
the Buick or attempt to pull it over. Herder pulled into the
parking lot of a nearby convenience store and parked at the
far end of the lot near pay phones instead of the available
spots directly in front of the store. Deputy Cable parked his
patrol car on the opposite side of the parking lot.

As Herder was getting out of the Buick, Deputy Cable
asked him where he was coming from; Herder replied that he
had been out that evening having dinner at Ruby Tuesday
with a friend, Stephanie Umble. Hearing this, Deputy Cable
became suspicious because he had just followed Herder from
the commuter lot. In addition, the restaurant was directly
across from the parking lot but a mile away from the com-
muter lot.

During his interaction with Herder, Deputy Cable came to
believe that criminal activity had taken place because Herder
came from an area of high narcotic activity, gave implausible
responses, exhibited cautious behavior, and constantly
received cell phone calls. Deputy Cable asked Herder whether
there were any drugs in the car and Herder said that there
were not. Notwithstanding Herder’s response, Deputy Cable
asked permission to allow a narcotics detection dog to scan
the Buick. Herder acquiesced, saying that he had nothing to
hide.

The K-9 unit was deployed to Herder’s Buick and posi-
tively alerted to the presence of the odor of narcotics. Deputy
4 UNITED STATES v. HERDER
Cable then began a probable cause search. He found nothing
in the console, glove box, front passenger area, or under the
seats. He did find three containers disguised to look like
household products which contained false bottoms concealing
narcotics and coffee grounds. One container, made to look
like Ajax Bleach, was on the back seat of the car in plain view
and concealed a plastic bag containing smaller plastic bags of
crack cocaine and a plastic bag of coffee grounds. Another
container, made to look like Old Spice shaving cream, was
found on the floor board behind the driver’s seat and con-
cealed three bags of marijuana and a plastic bag of coffee
grounds. The final container, made to look like Cheetos
cheese curls, was found inside a plastic shopping bag near the
middle of the back seat of the car. This container concealed
a large plastic bag containing smaller plastic bags of crack
cocaine.

Deputy Cable seized a total of 21 bags of crack cocaine and
three bags of marijuana from Herder’s car. Also inside the car
was a prescription pill bottle bearing the name Tiffany Stokes.
The pills in the bottle were not consistent with the label. On
Herder’s person was $1223.00 in multiple denominations.
Herder was thereafter arrested.

On October 18, 2007, a federal grand jury in the Eastern
District of Virginia indicted Herder on one count of posses-
sion with the intent to distribute five grams or more of crack
cocaine and one count of possession with intent to distribute
marijuana, both in violation of Title 21 U.S.C. § 841(a)(1).
Herder pleaded not guilty and went to trial.

During trial, the government called a police lieutenant with
18 years of experience as a drug expert. The expert testified
that there was a recent rise in the use of false-bottom contain-
ers to conceal crack cocaine and marijuana. The expert also
testified that persons engaging in illegal drug purchases used
"folds," which are bills of money that are folded over. He then
identified at least six "folds" depicted in a photograph of the
 UNITED STATES v. HERDER 5
money recovered from Herder at the time of his arrest. This
expert, along with Deputy Cable, testified that coffee grounds
are used to prevent a dog from sniffing the presence of drugs.
The convenience store where Herder was arrested was known
for illegal drug activity where police have conducted under-
cover drug buys. The expert concluded that the denominations
of money found on Herder, the use of the canisters and coffee
grounds, as well as the individually packaged crack cocaine
and marijuana were consistent with distribution.

The defense called two witnesses. First, Umble testified
that she and Herder did, in fact, go to Ruby Tuesday on the
night of his arrest. Umble stated that she lived a few miles
away from the commuter lot and that she and Herder fre-
quently met at the commuter lot, where she would leave her
Jeep Cherokee and ride in Herder’s car. Her car had been
towed in the past and, to prevent a recurrence, she always
parked in the commuter lot where her car would be safe. She
testified that Herder’s car was very messy but she did not see
any drugs that night. She also testified that she did not leave
any drugs in the car.

Second, Tiffany Stokes, Herder’s fiancee, testified that the
two of them owned a t-shirt business, together with a woman
named Aida Hernandez. The three shared the Buick for busi-
ness deliveries and, as a result, the car became littered with
"junk." Shortly before the search, Herder had gone on one
such delivery and collected payment. (There were no t-shirts
in the car at the time of the search.) Stokes further testified
that Herder had access to money, approximately $16,000,
because she recently received money from a settlement fol-
lowing a car accident and she had given the money to Herder
to deposit in his bank account. Stokes was on prescription
medication at the time of the search. She did not leave any
crack cocaine or marijuana in the car.

Counsel for Herder submitted a proposed jury instruction
on the meaning of "possession," which the district court
6 UNITED STATES v. HERDER
refused. The final jury instruction discussed the difference
between actual and constructive, as well as joint and sole,
possession. The court defined constructive possession as fol-
lows: "The possession is called constructive possession when
a person does not have the direct and physical control over the
substances but can knowingly control it and intends to control
it, sometimes through another person." J.A. 140. The instruc-
tion proposed by the defense and rejected by the court would
have added the following two sentences: "Presence in a car
from which the police recover contraband does not establish
possession. In other words, the mere proximity of contraband
to the occupant is insufficient to establish constructive posses-
sion." J.A. 18.

During deliberations, the jury sent out the following note:
"Does possession mean knowing possession? Can the drugs
be in the car and not be possession?" J.A. 151. The parties
agreed that the first question should be answered affirma-
tively. Defense counsel again offered the proposed instruction
and again, the district court refused. Shortly thereafter, the
jury found Herder guilty on both counts.

The original presentence report prepared by the probation
officer erroneously determined that Herder was found in pos-
session of nine grams of cocaine (powder) but it was later
amended to reflect Herder’s possession of 3.8 grams of crack
cocaine (the amount determined at trial) and 7.3 grams of
marijuana. The conversion yielded the equivalent of 50.54
kilograms of marijuana for sentencing.1 With an offense level
of 20 and five criminal history points, Herder was placed in
criminal history category III. Herder’s guideline range was
therefore 41 to 51 months of imprisonment. Despite counsel’s
arguments that the court should depart or grant a variance
1
Using the conversion ratio of 1 gram cocaine base = 13.3 kilograms
marijuana prescribed by the application notes to the Sentencing Guidelines
and U.S.S.G. § 2D1.1(a)(3), (c)(15) (2007), 3.8 grams of cocaine base
converts to 50.54 kilograms of marijuana.
 UNITED STATES v. HERDER 7
from the applicable guideline range because of the disparity
between powder and crack cocaine, the court sentenced Her-
der to 41 months, the low end of the applicable guideline
range. After hearing argument from counsel, the court also
ordered the forfeiture of the money found on Herder’s person
at the time of his arrest.

Herder now appeals, challenging his conviction, sentence,
and the order of forfeiture.

II.

A.

We review sufficiency of the evidence claims in the light
most favorable to the government, deciding whether there is
substantial evidence to support the conviction. Glasser v.
United States, 315 U.S. 60, 80 (1942). "[S]ubstantial evidence
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." United States v. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). If there is
substantial evidence to support the guilty verdict, then we
must sustain the verdict. Glasser, 315 U.S. at 80. Because the
evidence must be viewed in the light most favorable to the
government, we assume that the jury resolved all contradic-
tions in the testimony in favor of the government. United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc).

Herder argues that the evidence at trial was insufficient to
establish that he knowingly possessed the drugs found in the
Buick. A conviction of possession with the intent to distribute
may be based on actual or constructive possession. United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), cert.
denied, 506 U.S. 926 (1992). A person may have constructive
possession of contraband if he has ownership, dominion, or
control over the contraband or the premises or vehicle in
which the contraband was concealed. United States v. Arm-
8 UNITED STATES v. HERDER
strong, 187 F.3d 392, 395 (4th Cir. 1999). Proof of construc-
tive possession requires proof the defendant had knowledge of
the presence of the contraband, United States v. Bell, 954 F.2d
232, 235 (4th Cir. 1992), overruled on other grounds by
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996), but
"[c]onstructive possession may be established by either cir-
cumstantial or direct evidence." United States v. Nelson, 6
F.3d 1049, 1053 (4th Cir. 1993). Either way, a fact finder may
properly consider the totality of the circumstances surround-
ing the defendant’s arrest and his alleged possession. Bell,
954 F.2d at 235.

Herder analogizes this case to United States v. Blue, 957
F.2d 106, 108 (4th Cir. 1992), and United States v. Daley, 107
F. App’x 334, 339 (4th Cir. 2004), in each of which we held
that there was insufficient evidence to sustain a conviction
based on a theory of constructive possession. Herder’s reli-
ance on those cases is unavailing.

In Blue, we held that the evidence was insufficient to estab-
lish constructive possession of a gun where a police officer
saw the defendant sitting in the passenger seat of a vehicle dip
his shoulder as the officer approached. 957 F.2d at 108. The
proximity of the defendant to the gun established accessibility
only, not dominion and control. Id. Moreover, there was no
physical evidence, such as fingerprints, or witness testimony
that the defendant had been seen with the gun. Id. Applying
like reasoning in Daley, we found insufficient evidence for a
possession conviction where a police officer witnessed the
defendant make a "tugging or furtive movement" while sitting
in the passenger seat of a car, under which the officer found
a revolver and one kilogram of crack cocaine. 107 F. App’x
at 339.

The instant case plainly differs from Blue and Daley. First,
unlike the passengers in those cases, Herder was the driver
and sole occupant of the car. While the record is unclear
whether Herder owns the car, the facts that (1) he was the
 UNITED STATES v. HERDER 9
driver and sole occupant at the time the drugs were found and
(2) the canisters concealing the drugs were within his reach
are indicative of a high degree of dominion and control over
the drugs. See Armstrong, 187 F.3d at 395 (finding sufficient
evidence for possession where the defendant was the owner
and sole occupant of the car in which the contraband was
found, a gun was under a floormat on the driver’s side, and
the drugs were located in a compartment to the left of the
steering wheel).

Furthermore, the evidence shows that Herder engaged in
highly suspicious activity while being observed by Deputy
Cable; that evidence plainly provides circumstantial proof of
Herder’s knowledge of the narcotics discovered in the vehicle
he was operating. Deputy Cable and Lieutenant Andersen
both testified that the commuter lot in which Deputy Cable
first noticed Herder’s car was well-known for illicit drug
activity, especially at night. Lieutenant Andersen testified that
he had recently directed an undercover drug purchase in that
commuter lot around midnight, which is about the same time
that Herder was observed leaving the lot. From this evidence,
the jury could well have inferred that Deputy Cable probably
witnessed Herder engaging in a drug transaction. With this
inference, the jury could have reasonably concluded that Her-
der had knowledge that drugs were concealed, but within his
reach, in the car in which he was the sole occupant. Moreover,
the jury could have believed Deputy Cable’s testimony
regarding Herder’s cautious driving, suspicious answers, and
nervous demeanor.

The money seized from Herder was consistent with the
types of "folds" used in drug distribution. The jury reasonably
could have believed Lieutenant Andersen’s testimony that he
was familiar with the types of folds used by Herder because
it is similar to the folds he had seen and, in fact, used, in
undercover drug purchases. The jury could have concluded
that the folds of money found on Herder were used in drug
10 UNITED STATES v. HERDER
distribution and, therefore, Herder had knowledge of the con-
cealed drugs.2

In sum, for the above reasons, the direct and circumstantial
evidence presented by the government at trial was more than
ample to support the jury’s verdict.

B.

"Whether jury instructions were properly given is a ques-
tion of law." United States v. Morrison, 991 F.2d 112, 116
(4th Cir. 1993). We review the district court’s refusal to give
specific instructions for abuse of discretion. United States v.
Brooks, 928 F.2d 1403, 1408 (4th Cir. 1991). We review the
entire jury charge to determine whether the jury was properly
instructed on the elements of the offenses and the accused’s
defenses. United States v. Fowler, 932 F.2d 306, 317 (4th Cir.
1991). The key inquiry is "whether, taken as a whole, the
instruction fairly states the controlling law." United States v.
Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990); accord Hender-
son v. Kibe, 431 U.S. 145, 153 (1977). A district court’s
refusal to give a proposed instruction constitutes reversible
error if the instruction "(1) was correct; (2) was not substan-
tially covered by the court’s charge to the jury; and (3) dealt
with some point in the trial so important, that failure to give
the requested instruction seriously impaired the defendant’s
ability to conduct his defense." United States v. Lewis, 53
F.3d 29, 32 (4th Cir. 1995).

Here, the district court refused Herder’s proposed instruc-
tion on possession. During the charge conference, the court
2
Finally, even the defense evidence provided corroboration to the jury
that the government’s evidence demonstrated Herder’s knowing dominion
and control over the drugs in the vehicle. Although Herder shared the car
with two other people, one of those people, Herder’s fiancee, Tiffany
Stokes, testified affirmatively that the drugs did not belong to her. Stepha-
nie Umble, the only other person shown to have had access to the vehicle
that night, also testified that the drugs were not hers.
 UNITED STATES v. HERDER 11
told the parties that he intended to tell the jury "how they may
find proof of knowledge" and that "precise knowledge of a
controlled substance need not be proved" with regard to pos-
session. J.A. 125-26. Herder’s counsel advised the court that
there was no need for a joint possession or actual possession
instruction. The court stated that he would give a complete
definition. ("If I’m defining it, it seems to me I ought to go
about defining it." J.A. 128.). Herder’s counsel then requested
that the court add two sentences to the possession instruction
and the court refused:

Defense Counsel: We’ve also added Fourth Circuit
law, the last paragraph, which says presence in a car
from which the police recovered contraband does not
establish possession. In other words, mere proximity
of contraband to an occupant is insufficient to estab-
lish constructive possession. That’s just black letter
law from United States v. Blue.

The Court: But it’s not the definition of possession.
You’re free to argue to that, but that’s not something
that I’m going to tell the jury.

Defense Counsel: Well, it’s a legal principle, Your
Honor.

The Court: That has to do with whether or not
there’s sufficient evidence to convict somebody.

Defense Counsel: True. Just being close to some-
thing isn’t enough. That’s all we’re asking the jury
to understand that being close to something isn’t
enough to show possession.

The Court: That’s right, but that’s not the definition
of possession.

Defense Counsel: I understand.
12 UNITED STATES v. HERDER
The Court: That’s a question of whether or not
there’s sufficient evidence to convict somebody.
You can argue that to the jury.

J.A. 128-29. The court’s final jury instruction on possession
was as follows:

Now, the term possess means to exercise control or
authority over something in a given time. This pos-
session may be actual or constructive, joint or sole.
The possession is considered to be actual possession
when a person knowingly has direct physical control
or authority over the controlled substances. The pos-
session is called constructive possession when a per-
son does not have the direct and physical control
over the substances but can knowingly control it and
intends to control it, sometimes through another per-
son. The possession may be knowingly exercised by
one person exclusively, which is sole possession, or
the possession may be exercised jointly when it is
shared by two or more persons.

J.A. 140-41.

During deliberations the jurors asked, "Does possession
mean knowing possession? Can the drugs be in the car and
not be possessed?" J.A. 151. The parties agreed that the court
should inform the jury that possession must be knowing. The
court, however, refused Herder’s repeated request to instruct
the jury regarding proximity. The court stated that giving that
instruction would be akin to answering specific fact questions
or directing a verdict.

The district court did not abuse its discretion in declining
to give Herder’s proposed instruction. To be sure, the pro-
posed instruction was a correct statement of the law; however,
it was substantially covered by the court’s charge to the jury,
 UNITED STATES v. HERDER 13
and the district court’s failure to give the requested instruction
did not impair Herder’s ability to conduct his defense.

The only Fourth Circuit case on point is our unpublished
opinion in United States v. Rice, 36 Fed. App’x 509, 510 (4th
Cir. 2002) (unpublished). There, we affirmed a district court’s
refusal to add a "mere proximity" instruction. We noted that
the court’s instructions properly defined possession as actual
possession or power and intent to exercise control. Id. (citing
United States v. Jackson, 124 F.3d 607, 610-11 (4th Cir.
1997)). We also held that "[t]he instruction does not leave
room for the confusion that [the defendant] complains of
because the language specifically requires more than mere
proximity to the firearm." Id.

Similarly, three other circuits have sustained a jury charge
that did not include a "mere proximity" instruction because
the instructions actually given to the jury plainly required
proof of knowledge and control. In United States v. Rojas,
537 F.2d 216, 219-20 (5th Cir. 1976), for example, the Fifth
Circuit affirmed a district court’s refusal to give "mere prox-
imity" instructions because the given instructions, which
defined possession as exercising control or dominion over an
object, sufficed to preclude a conviction on the basis of mere
proximity to the drugs at issue. In United States v. Vasquez,
82 F.3d 574, 577 (2d Cir. 1996), the Second Circuit faced a
similar case and reached the same conclusion as the Fifth Cir-
cuit. The Second Circuit stated that the given charge "clearly
required the jury to find that the defendant had the intent to
exercise dominion or control over the firearm and that posses-
sion could not be established by accident or mistake." Id. The
Seventh Circuit has also rejected a challenge to a district
court’s refusal to give a "mere proximity" instruction because
the district court’s possession instruction required knowledge
and intent. See United States v. Hendricks, 319 F.3d 993,
1006 (7th Cir. 2003); United States v. Rice, 995 F.2d 719, 725
(7th Cir. 1993); United States v. Saunders, 973 F.2d 1354,
1361 (7th Cir. 1992).
14 UNITED STATES v. HERDER
Here, the district court defined possession as exercising
control or authority over something at a given time. The court
discussed constructive possession as occurring when a person
has "no direct and physical control over a substance but can
knowingly control it and intends to control it, sometimes
through another person." As the district court here observed,
the "mere proximity" instruction Herder requested constitutes
a perfectly valid defense argument. See United States v.
Viserto, 596 F.2d 531, 539 (2d Cir. 1979), cert. denied, 444
U.S. 841 (1979). Nevertheless, it is clear on this record that
under the court’s instructions, the jury could not have con-
victed Herder unless it believed that Herder had knowledge of
the drugs, could exercise knowing control over them, or
knowingly intended to exercise such control. In other words,
in the face of the instructions it was provided, the jury could
not have convicted Herder had the government’s proof shown
no more than that Herder was merely present in the car where
the drugs were found. Thus, the district court did not abuse its
discretion in denying defendant’s request for a "mere proxim-
ity" jury instruction.

C.

We review sentences for "unreasonableness." United States
v. Booker, 543 U.S. 220, 260-63 (2005); United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006). "A sentence after
Booker may be unreasonable for both procedural and substan-
tive reasons." United States v. Montes-Pineda, 445 F.3d 375,
378 (4th Cir. 2006), cert. denied, 551 U.S. 1163 (2007).
Booker made clear that the abuse-of-discretion standard of
review applies to appellate review of sentencing decisions.
Gall v. United States, 552 U.S. 38, 46 (2007).

In Rita v. United States, 551 U.S. 338, 346 (2006), the
Supreme Court held that appellate courts could infer that a
sentence within the applicable advisory Guidelines range is
presumptively reasonable. We have employed this principle.
See United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
 UNITED STATES v. HERDER 15
2006). On the other hand, the Supreme Court forbids sentenc-
ing courts to presume that a sentence within the applicable
Guidelines range is reasonable. Nelson v. United States, 129
S. Ct. 890, 892 (2009).

Section 841 of Title 21 of the Code, the statute criminaliz-
ing the manufacture and distribution of crack cocaine, and the
relevant Sentencing Guidelines, subject crack cocaine traf-
fickers to the same sentence as another dealing in 100 times
more powder cocaine. This notable disparity has led the
Supreme Court to hold that the offense levels established in
the crack cocaine Guidelines, like the Guidelines generally,
are not binding. Kimbrough v. United States, 552 U.S. 85, 85
(2007). Indeed, a district court may categorically reject the
ratio set forth by the Guidelines. Spears v. United States, 129
S. Ct. 840, 842 (2009). A within-Guidelines sentence for
crack cocaine distribution may be "greater than necessary" to
serve the objectives of sentencing. Kimbrough, 128 S. Ct. at
564.

An appellate court "lack[s] the authority to review a sen-
tencing court’s denial of a downward departure unless the
court failed to understand its authority to do so." United States
v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). And when the
sentencing court is silent regarding its reason for refusing a
departure or a variance sentence, the appellate court is pre-
cluded from inferring that the sentencing court believed that
it lacked the authority to do so. United States v. Bailey, 975
F.2d 1028, 1035 (4th Cir. 1992). Here, the district court was
not "silent;" we believe, while the matter is not entirely free
of all doubt, it evinced its belief of a lack of authority to sen-
tence outside of the crack cocaine guideline. This was error.

The Supreme Court has specifically reversed the Eight Cir-
cuit’s affirmance of a within-Guidelines sentence in a crack
cocaine case. See Moore v. United States, 129 S. Ct. 4, 4
(2008) (per curiam). In Moore, the Court held that the sen-
tencing court did not believe it had discretion to depart from
16 UNITED STATES v. HERDER
the Guidelines under Kimbrough when it stated that "Con-
gress is the one who looks at the Guidelines and decides
whether or not they should be put in - in force . . . It isn’t the
judges." Id.

In the case before us, Herder argues that, as in Moore, the
district court failed to understand its authority to sentence
below the applicable crack guideline range. Herder points
specifically to the following exchange during the sentencing
hearing:

Defense Counsel: If I also may be briefly heard,
Your Honor, on the sentence. I believe, and I don’t
mean to indicate that I didn’t say this before, but this
is the type of case that Kimbrough v. United States
envisions where there’s a grave disparity between
the crack guideline and the powder guidelines.

Had Mr. Herder been seized with 3.8 grams of
powder, he would only be looking at 6 to 12 months,
Your Honor. I would ask the Court to reassess —

The Court: Well, we’ve already taken that into con-
sideration. The sentencing guidelines have modified
the discrepancy in the crack and powder cocaine.
This was calculated under the new guidelines, was it
not?

Defense Counsel: Yes, Your Honor. We would still
have a 67 to 1 ratio between crack and powder.

The Court: I understand that. Congress has decided
that that’s an appropriate ratio to establish.

J.A. 210.

We agree that this colloquy — the district court’s conclu-
sory word on the matter— shows that the court failed to rec-
 UNITED STATES v. HERDER 17
ognize its discretion to sentence outside the crack cocaine
Guidelines.3 First, it was the Sentencing Commission, and not
Congress, that established the ratio for crack and powder
cocaine. Second, the court expressed its view that a within-
Guidelines sentence is appropriate even though the Supreme
Court specifically forbids sentencing courts from presuming
that such sentences are reasonable. See Nelson, 129 S. Ct. at
892. The district court refused to consider a variation from the
Guidelines in light of the 67:1 ratio between crack and pow-
der cocaine at Herder’s offense level, presuming that a within-
Guidelines sentence was reasonable because "Congress has
decided that that’s an appropriate ratio to establish." J.A. 210.
Third, the court sentenced Herder to 41 months of incarcera-
tion, the low end of the Guidelines recommended by the pre-
sentence report, before the above exchange took place. The
court imposed sentence before it could hear arguments on the
important factors to consider pursuant to 18 U.S.C. § 3553(a).
At the very least, the district court’s statements are vague
enough that we are constrained to conclude that it did not
understand that it had discretion to depart from the Guide-
3
The dissent simply ignores that whatever counsel’s prior oral and writ-
ten arguments, and whatever the prior brief statements of the district court,
ultimately the court based its decision not to deviate from the Guidelines
on the erroneous conclusion that "Congress ha[d] decided" the appropriate
ratio. Moreover, while it is true that counsel for Herder filed a memoran-
dum in aid of sentencing with the district court, Rule 32 specifically
recites that "[a]t sentencing, the court . . . must allow the parties’ attorneys
to comment on the probation officer’s determinations and other matters
relating to an appropriate sentence." Fed. R. Crim. P.
32(i)(1)(C)(emphases added). As the Supreme Court has reminded us:
[G]iven the scope of the issues that may be considered at a sen-
tencing hearing, a judge will normally be well-advised to with-
hold her final judgment until after the parties have had a full
opportunity to present their evidence and their arguments. Sen-
tencing is "a fluid and dynamic process and the court itself may
not know until the end whether a variance will be adopted, let
alone on what grounds." United States v. Vega-Santiago, 519
F.3d 1, 4 (C.A.1 2008) (en banc).
Irizarry v. U.S., 128 S. Ct. 2198, 2203 (2008).
18 UNITED STATES v. HERDER
lines. Herder’s sentence is therefore procedurally unreasonable.4
Accordingly, we shall vacate the sentence and remand for
resentencing.

D.

A district court’s findings of fact are reviewed for clear
error while its conclusions of law are reviewed de novo. See
United States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001).
Accordingly, a trial court’s findings of fact regarding the for-
feitability of the property are reviewed for clear error. A dis-
trict court may order the forfeiture of (1) proceeds obtained as
a result of the crime for which a defendant was convicted or
(2) property used or intended to be used to commit or to facil-
itate the commission of the crime for which a defendant was
convicted. 21 U.S.C. § 853(a). The burden is on the govern-
ment to establish, by a preponderance of the evidence, that the
property at issue is subject to forfeiture. United States v.
Cherry, 330 F.3d 658, 669-70 (4th Cir. 2003); United States
v. Tanner, 61 F.3d 231, 234-35 (4th Cir. 1995).

We have never adequately articulated the proper standard
for the requisite nexus between property and crime under
§ 853. We now expressly adopt the "substantial connection"
standard from case law interpreting nearly identical civil for-
feiture language in 21 U.S.C. § 881 (2006).5 United States v.
Smith, 966 F.2d 1045, 1055 (6th Cir. 1992); cf. United States
4
We note, as the parties have agreed, that the Judgment Order incor-
rectly listed the offense of conviction as the greater offense of Possession
with the Intent to Distribute 5 Grams or More of Cocaine Base. This mat-
ter shall be corrected upon the remand.
5
We believe that, in forfeiture cases, the "substantial connection" stan-
dard will provide more guidance to the district courts than the nebulous
"requisite nexus" mentioned in the Federal Rules. See Fed. R. Crim. P.
32.2(b)(1)(A) ("If the government seeks forfeiture of specific property, the
court must determine whether the government has established the requisite
nexus between the property and the offense."); see also United States v.
Juluke, 426 F.3d 323, 326-27 (5th Cir. 2005).
 UNITED STATES v. HERDER 19
v. Heldeman, 402 F.3d 220, 222 (1st Cir. 2005) (declining to
apply the "substantial connection" standard to the § 853 crim-
inal forfeiture question because "[w]hatever the exact degree
of connection required by the criminal forfeiture statute, . . .
the evidence provided to the district court in this case amply
supported the forfeiture").

Under the "substantial connection" test, where the govern-
ment’s theory is that the property was used to commit, or to
facilitate the commission of, the offense of conviction, the
government must establish that there was a substantial con-
nection between the property to be forfeited and the offense.
Id. Substantial connection may be established by showing that
use of the property made "the prohibited conduct less difficult
or more or less free from obstruction or hindrance." United
States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990) (internal
quotes omitted); see United States v. Santoro, 866 F.2d 1538,
1542 (4th Cir. 1989) (holding that a single sale would have
been sufficient to fulfill the substantial connection test in for-
feiture of the property in which sale occurred). The govern-
ment may rely on circumstantial evidence to establish
forfeitability. See United States v. One Parcel. . . 7715 Betsy
Bruce Lane, 906 F.2d 110, 113 (4th Cir. 1990) (holding that
circumstantial evidence that the house was used to possess
cocaine with intent to distribute is sufficient, even if only
trace amounts are found).

Here, Herder challenges the district court’s forfeiture order
based on his possession convictions. The district court
ordered forfeiture of the $1,223 currency seized from Herder
at the time of the arrest based on its finding that the money
constituted "proceeds of drug trafficking." J.A. 212. In so
ordering, the district court found that the circumstances sur-
rounding the seizure of the $1,223 were sufficient to establish
a substantial connection between the money and the Herder’s
drug trafficking offense.

The $1,223 was seized from Herder at the time of his arrest
and was folded and held in a manner indicative of its use in
20 UNITED STATES v. HERDER
a drug transaction. At the time of the seizure, Herder was in
possession of a quantity of drugs for which he was subse-
quently convicted of possessing with the intent to distribute.
Under the circumstances, the district court did not "clearly
err" in finding that Herder intended to use the $1,223 to com-
mit, or to facilitate the commission, of the offenses for which
he was convicted.

III.

For the reasons stated herein, we affirm Herder’s convic-
tion and the order of forfeiture. We vacate the sentence and
remand for resentencing. We intimate no view as to what sen-
tence the district court might find to be appropriate. Rather,
by our order, we simply provide the court with a clarification
of its authority to impose a sentence other than one within the
crack cocaine guideline.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

NIEMEYER, Circuit Judge, concurring in part and dissenting
in part:

I am pleased to concur in the portion of the majority’s opin-
ion affirming Herder’s conviction and the forfeiture order in
this case. I respectfully dissent, however, from the majority’s
finding that the sentence is procedurally unreasonable. The
finding rests on conclusions that: (1) the district court "did not
understand that it had discretion to depart from the guide-
lines," ante at 17-18; (2) when the district court "expressed its
view that a within-guidelines sentence is appropriate," it
somehow improperly relied on the presumption of reasonable-
ness prohibited by Nelson v. United States, 129 S. Ct. 890,
892 (2009), ante at 17; and (3) the district court "imposed
sentence before it could hear arguments on the important fac-
tors to consider pursuant to 18 U.S.C. § 3553(a)," ante at 17.
 UNITED STATES v. HERDER 21
I disagree with each of these conclusions, and the record,
I submit, provides no support for them.

The presentence report, as amended, provided that Herder
was subject to an offense level of 20 and a criminal history
category of III, resulting in a recommended Guidelines sen-
tencing range of 41 to 51 months’ imprisonment. These calcu-
lations took into account the Sentencing Guidelines’
Amendment 706, which reduced the offense level for crack
cocaine offenses by two levels.

Prior to sentencing, Herder submitted a thorough sentenc-
ing memorandum to the district court in which he devoted
over six pages to arguing that even the amended crack/powder
ratio in the Sentencing Guidelines did not appropriately serve
the sentencing factors in 18 U.S.C. § 3553(a). He argued that
while Amendment 706 "significantly softened the disparity
between powder and crack," reducing it from a 100 to 1 ratio
to a 67 to 1 ratio in this case, the amendment still left large
ratios that "punish crack at a disproportionate and unwar-
ranted level as compared to powder." He asserted that his own
circumstances presented a "textbook example of this disparate
treatment" and that the punishment recommended by the Sen-
tencing Guidelines was "considerably greater than that called
for with an equivalent amount of powder cocaine."

At the sentencing hearing, counsel for Herder repeated the
argument, again "not[ing] that Your Honor’s free to disregard
the guideline range in assessing the 3553(a) factors."

After also hearing from the government, the district court
then concluded:

Well, I find the guideline factors in this case to be
properly assessed at a range of 41 to 51 months, but
because of the financial condition of the defendant,
the imposition of any fine or cost is not warranted.
22 UNITED STATES v. HERDER
I find that the low end of the guideline range here
would meet the requirements of the 3553 factors.

The court then sentenced Herder to 41 months’ imprisonment,
the low end of the recommended range.

After sentencing, counsel for Herder again raised the
crack/powder issue: "I don’t mean to indicate that I didn’t say
this before, but this is the type of case that Kimbrough v.
United States envisions where there’s a grave disparity
between the crack guideline and the powder guidelines." The
court responded that it had "already taken that into consider-
ation." Finally, when counsel for Herder again complained
that the Guidelines had established a 67 to 1 ratio between
crack and powder, the court replied, "I understand that. Con-
gress has decided that that’s an appropriate ratio to establish."

Nothing in this scenario suggests that the court did not
understand its discretion to impose a sentence below the
Guidelines. Indeed, the entire dialogue between the court and
Herder presumed that the court had the discretion to depart
downward. Nor is there anything to indicate that the court
rested its sentencing decision on a presumption of reasonable-
ness. To the contrary, it found that the § 3553(a) factors were
served by a sentence at the low end of the Guidelines range.
Finally, before sentencing, the court considered Herder’s fully
stated arguments, advanced on paper and orally, that the court
rely on the § 3553(a) factors to depart from the Guidelines.
The district court simply did not accept the argument.
Nowhere did the court ever suggest that it did not have the
authority to depart or that it was resting on a presumption of
reasonableness. Moreover, the court’s response to Herder’s
complaint about the 67 to 1 ratio was that that ratio was one
that Congress had picked.

Thus, every basis that the majority opinion advances for its
finding of procedural unreasonableness is belied by the
record. Indeed, because the record affirmatively indicates a
 UNITED STATES v. HERDER 23
contrary finding, a district court might well conclude that it is
our opinion that is procedurally unreasonable.