U.S. v. Smith

• Decision Date: 22 September 2011
• Docket Number: No. 10–2998.,10–2998.
• Citation: 656 F.3d 821
• Parties: UNITED STATES of America, Appellee,v.Jamie SMITH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

656 F.3d 821

UNITED STATES of America, Appellee,

v.Jamie SMITH, Appellant.

No. 10–2998.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2011.Filed: Sept. 22, 2011.

Mark C. Meyer, argued, Cedar Rapids, IA, for appellant.Matthew Jeremy Cole, AUSA, argued, Patrick J. Reinert, AUSA, Cedar Rapids, IA, for appellee.Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,¹ District Judge.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 (b)(1)(B). The district court ² 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 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 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, 128 S.Ct. 586, 169 L.Ed.2d 445 (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 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;

(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, 227 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...