United States v. Jose

United States Court of Appeals

For the First Circuit

No. 05-1126

UNITED STATES OF AMERICA,

Appellee,

v.

OTILIO JOSE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch and Howard, Circuit Judges,

and Young,* District Judge.

Mauricio Hernández Arroyo, with whom Law Offices of Mauricio

Hernández Arroyo was on brief, for appellant.

Aramis G. Ríos, Assistant United States Attorney, with whom

Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-

Sosa, Assistant United States Attorney, and Mariana E. Bauzá-

Almonte, Assistant United States Attorney, were on brief, for

appellee.

August 17, 2007

*

Of the District of Massachusetts, sitting by designation.

LYNCH, Circuit Judge. This case presents our first

occasion to address the bulk cash smuggling provisions of the 2001

USA PATRIOT Act, Pub. L. No. 107-56, § 371, 115 Stat. 272, 336-38

(codified as amended at 31 U.S.C. § 5332). Defendant Otilio Jose

challenges the district court's forfeiture order in the amount of

$114,948, arguing that it constitutes an excessive fine in

violation of the Eighth Amendment. He does not challenge his

straight guilty plea to counts arising from his failure to declare

the amount of currency he was attempting to take with him out of

the country. We hold that the forfeiture order does not constitute

an excessive fine, but remand, at the request of the United States,

so that the sum of $1,400 can be deducted from the amount of

forfeiture.

I.

On August 23, 2004, Jose checked two pieces of luggage on

a flight departing from Luis Muñoz Marín International Airport in

Puerto Rico. Jose was on his way to St. Maarten, Netherlands

Antilles. Customs officers inspected Jose's checked luggage and

discovered bundles of cash wrapped in tissue paper hidden in a pair

of sneakers and other bundles wrapped in carbon paper hidden inside

a set of bed sheets. The officers approached Jose and explained to

him the currency reporting requirements for transported amounts in

excess of $10,000. See 31 U.S.C. § 5316(a)(1)(A). Jose declared

verbally and in writing that he was in possession of $1,400. In

-2-

fact, the cash on Jose, and in his luggage, amounted to a hefty

$114,948. Jose explained that he had found the money while

visiting Puerto Rico. He said that he was at a San Juan hotel when

he saw someone throw something into a trash container; that

individual looked around to see if anyone had seen him and then

left the area. Jose went down to the trash and picked up a bag

which contained a large amount of money. He said to himself, "This

is my fortune, I found it. I put it in my bag and I go home." He

claimed that he was unaware of any reporting requirements.

Jose was arrested on August 23 and later charged in an

indictment with (1) knowingly and willfully failing to file a

report when he was about to transport at one time monetary

instruments of more than $10,000 from a place in the United States

to a place outside the United States, in violation of 31 U.S.C.

§ 5316(a)(1)(A) (the "cash reporting requirement"); (2) making a

materially false, fictitious, or fraudulent statement or

representation in a matter within the jurisdiction of the

Department of Homeland Security, an agency of the United States, in

violation of 18 U.S.C. § 1001(a); and (3) knowingly and willfully

concealing more than $10,000 in currency in an attempt to transport

such currency from a place in the United States to a place outside

the United States without filing a report as required by the

Secretary of the Treasury, in violation of 31 U.S.C. § 5332(a) (the

"bulk cash smuggling statute"). The indictment also included

-3-

allegations seeking forfeiture of the $114,948 based on the

offenses alleged in Counts One and Three, pursuant to 31 U.S.C.

§ 5317(c)(1)(A) and 31 U.S.C. § 5332(b)(2), respectively.

On November 4, 2004, Jose entered a straight guilty plea

to all three counts of the indictment. The district court advised

defendant of his rights and found that he had knowingly and

voluntarily waived them by pleading guilty. The court also

explained to Jose that by pleading guilty he could expect the

government to proceed to forfeit the money involved in the offense

as a result of the violations of the cash reporting requirement and

the bulk cash smuggling statute. Jose agreed except for the $1,400

he did declare, which he expected to be allowed to keep. The

government clarified that it had already filed administrative

proceedings to try to return the $1,400 to defendant. The

government sought forfeiture of the remaining funds, which Jose had

attempted to smuggle, but nothing more than that.

On December 13, 2004, the government requested a

preliminary order of forfeiture for the entire amount of $114,948.

The government's motion cited both sections 5317(c)(1)(A) (the cash

reporting requirement) and 5332(b)(2) (the bulk cash smuggling

statute) as authority for the forfeiture. It attached a proposed

order which referenced defendant's violation of sections

5316(a)(1)(A) and 5322. The citation to section 5322, rather than

section 5332, clearly was a typographical error. The government's

-4-

forfeiture argument at the sentencing hearing was based on both the

cash reporting requirement and the bulk cash smuggling statute.

At the hearing on December 14, 2004, the district court

stated that it was not so naive as to believe defendant's story

about how he came to possess the $114,948. The judge found that

Jose had attempted to mislead the court, and he sentenced Jose to

18 months' imprisonment on each count, to be served concurrently.

Jose also received three years of supervised release and was

ordered to pay a special monetary assessment of $100 on each count.

In light of defendant's financial situation, the court did not

impose a fine. Judgment entered on December 14, 2004; no

forfeiture order was included in the judgment, as provided for

under Fed. R. Crim. P. 32.2(b)(3).

On December 20, 2004, the government filed a motion to

amend the judgment, calling the district court's attention to the

fact that the judgment did not include a forfeiture order and to

the outstanding issue concerning the $1,400 that Jose had declared.

On December 23, 2004, the district court adopted the government's

earlier proposed order (with its typographical error) and issued a

preliminary order of forfeiture as to the entire amount of

$114,948. The court did not amend its earlier judgment to include

the forfeiture order.

In December 2005, defendant's appellate counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

-5-

asserting that there were no non-frivolous issues for appeal. On

March 21, 2006, this court rejected the Anders brief, but granted

counsel's request to withdraw. We ordered appointment of new

counsel and requested briefing on (1) whether the district court

erred in failing to conform with Fed. R. Crim. P. 32.2, (2) whether

the district court erred in failing to resolve a contested issue

regarding the amount of forfeiture, and (3) whether the forfeiture

order violates the Eighth Amendment's prohibition of excessive

fines. Present counsel for defendant has submitted a merits brief

only as to the third issue outlined in our March 21 order.

Accordingly, the first and second issues have been waived. See

United States v. Vigneau, 337 F.3d 62, 68 n.1 (1st Cir. 2003);

United States v. Chapdelaine, 23 F.3d 11, 13 (1st Cir. 1994). We

consider only whether the district court's forfeiture order

constitutes an excessive fine in violation of the Eighth Amendment.

II.

The Eighth Amendment provides: "Excessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted." U.S. Const. amend. VIII. We review de

novo whether a fine is constitutionally excessive, but give due

deference to the district court's factual findings. United States

v. Ortiz-Cintrón, 461 F.3d 78, 81 (1st Cir. 2006). On appeal from

a forfeiture order alleged to be an excessive fine, it is the

defendant's burden to show unconstitutionality. See id. at 81-82;

-6-

United States v. Heldeman, 402 F.3d 220, 223 (1st Cir. 2005).

Here, we review the forfeiture order only for plain error because

Jose did not raise his Eighth Amendment claim before the district

court.1 See United States v. Beras, 183 F.3d 22, 28 (1st Cir.

1999). "To establish plain error, a defendant must demonstrate

that: (1) there was error; (2) the error was plain; (3) the error

affected the defendant's substantial rights; and (4) the error

adversely impacted the fairness, integrity, or public reputation of

judicial proceedings." United States v. Riggs, 287 F.3d 221, 224

(1st Cir. 2002) (citing United States v. Olano, 507 U.S. 725,

732-36 (1993); United States v. Saxena, 229 F.3d 1, 5 (1st Cir.

2000)).

Jose's argument relies heavily on the Supreme Court's

decision in United States v. Bajakajian, 524 U.S. 321 (1998). In

Bajakajian, the defendant and his family had failed to report the

$357,144 in cash they were attempting to take with them out of the

United States on June 9, 1994. Id. at 324-25. The defendant pled

guilty to a charge of violating 31 U.S.C. § 5316(a)(1)(A) and

elected to have a bench trial on the forfeiture count brought under

1

Jose argues that his objection at the sentencing hearing

to the forfeiture of the declared $1,400 suffices to merit de novo

review on appeal. This argument fails, as defendant never objected

to the forfeiture on Eighth Amendment grounds before the district

court.

-7-

18 U.S.C. § 982(a)(1).2 Id. at 325. The district court found

that, under section 982(a)(1), the entire $357,144 was forfeitable

because it was "involved in" the offense. Id. at 325-26.

Nonetheless, the court ordered the forfeiture of only $15,000,

believing that full forfeiture would violate the Excessive Fines

Clause. Id. at 326. On the government's appeal, the Ninth Circuit

held that forfeiture of currency pursuant to 18 U.S.C. § 982(a)(1)

was per se unconstitutional because unreported currency was not an

"instrumentality" of the crime of failure to report. United States

v. Bajakajian, 84 F.3d 334, 336-38 (9th Cir. 1996).

On certiorari, the Supreme Court held that it was

irrelevant whether Bajakajian's money was an instrumentality of his

offense. 524 U.S. at 333. Instead, the Court asked first whether

the forfeiture constituted punishment and was thus a "fine" within

the meaning of the Excessive Fines Clause, id. at 327-28, and then

considered whether the forfeiture was constitutionally excessive --

that is, whether the forfeiture was "grossly disproportional to the

gravity of the defendant's offense," id. at 337. The Court held

that the forfeiture of Bajakajian's money, which was "imposed at

the culmination of a criminal proceeding and require[d] conviction

2

At the time, 18 U.S.C. § 982(a)(1) provided: "The court,

in imposing sentence on a person convicted of an offense in

violation of section . . . 5316, . . . shall order that the person

forfeit to the United States any property, real or personal,

involved in such offense, or any property traceable to such

property." 18 U.S.C. § 982(a)(1) (1994); see also Bajakajian, 524

U.S. at 325.

-8-

of an underlying felony," constituted punishment and was thus a

"fine." Id. at 328. On the question of excessiveness, the Court

thought it was significant that the district court had found that

Bajakajian's offense was unrelated to any other illegal activities.

Id. at 337-38. Bajakajian "owed no customs duties to the

Government, and it was perfectly legal for him to possess the

$357,144 in cash and to remove it from the United States. His

crime was simply failing to report the wholly legal act of

transporting his currency." Id. at 338 n.13. The Court further

considered the maximum penalties available under the statute, as

well as the fact that under the Sentencing Guidelines "the maximum

sentence that could have been imposed on [Bajakajian] was six

months, while the maximum fine was $5,000." Id. at 338-39 & n.14.

The Court also found that "[t]he harm that [Bajakajian] caused was

. . . minimal." Id. at 339. These observations contributed to the

Court's conclusion that the full forfeiture of Bajakajian's money

"would be grossly disproportional to the gravity of his offense."

Id. at 339-40.

Congress responded to Bajakajian in the USA PATRIOT Act

when it amended laws governing civil and criminal forfeiture in the

wake of September 11, 2001. Pub. L. No. 107-56, §§ 319, 371, 372,

115 Stat. at 311-12, 336-39 (amending 18 U.S.C. §§ 981 and 982, 21

U.S.C. § 853, and 31 U.S.C. § 5317, and creating 31 U.S.C.

-9-

§ 5332).3 The USA PATRIOT Act inserted a criminal forfeiture

provision in 31 U.S.C. § 5317(c)(1)(A) for property involved in a

violation of 31 U.S.C. § 5316 and correspondingly deleted the

reference to 31 U.S.C. § 5316 in 18 U.S.C. § 982(a)(1).4 Id.

§ 372, 115 Stat. at 338-39.

The Act also defined the new crime of "bulk cash

smuggling" at 31 U.S.C. § 5332. Id. § 371, 115 Stat. at 337-38.

Section 5332(a)(1) provides:

Whoever, with the intent to evade a currency

reporting requirement under section 5316,

knowingly conceals more than $10,000 in

currency or other monetary instruments on the

person of such individual or in any

conveyance, article of luggage, merchandise,

or other container, and transports or

transfers or attempts to transport or transfer

such currency or monetary instruments from a

place within the United States to a place

outside of the United States, or from a place

outside the United States to a place within

the United States, shall be guilty of a

currency smuggling offense and subject to

punishment pursuant to subsection (b).

Section 5332(b)(2), in turn, provides for the forfeiture of "any

property, real or personal," involved in the violation of section

5332(a)(1).

3

For a discussion of the USA PATRIOT Act's civil

forfeiture provisions for interbank accounts, see United States v.

Union Bank for Savings & Investment, 487 F.3d 8 (1st Cir. 2007)

(interpreting 18 U.S.C. § 981(k)).

4

31 U.S.C. § 5317(c)(1)(A) and the superseded version of

18 U.S.C. § 982(a)(1) are virtually identical. Compare 31 U.S.C.

§ 5317(c)(1)(A), with 18 U.S.C. § 982(a)(1) (1994).

-10-

Although the elements of the offense defined at section

5332(a)(1) largely track those of the offense defined at section

5316(a)(1),5 section 5332 places its emphasis on the knowing

concealment of "more than $10,000 in currency or other monetary

instruments," rather than the requirement to file a report, as in

section 5316. Indeed, Congress attached to section 5332 a note

expressing its finding that

[t]he current penalties for violations of the

currency reporting requirements are

insufficient to provide a deterrent to the

laundering of criminal proceeds. In

particular, in cases where the only criminal

violation under current law is a reporting

offense, the law does not adequately provide

for the confiscation of smuggled currency. In

contrast, if the smuggling of bulk cash were

itself an offense, the cash could be

confiscated as the corpus delicti of the

smuggling offense.

5

Section 5316 provides in relevant part:

(a) Except as provided in subsection (c) of

this section, a person or an agent or bailee

of the person shall file a report under

subsection (b) of this section when the

person, agent, or bailee knowingly --

(1) transports, is about to transport, or has

transported, monetary instruments of more

than $10,000 at one time --

(A) from a place in the United States to or

through a place outside the United States;

or

(B) to a place in the United States from or

through a place outside the United States

. . . .

-11-

USA PATRIOT Act, Pub. L. No. 107-56, § 371(a)(6), 115 Stat. at 337

(emphases added).

Congress was explicit that its purposes in enacting

section 5332 were "(1) to make the act of smuggling bulk cash

itself a criminal offense; (2) to authorize forfeiture of any cash

or instruments of the smuggling offense; and (3) to emphasize the

seriousness of the act of bulk cash smuggling." Id. § 371(b), 115

Stat. at 337. Congress was particularly concerned that the

transportation and smuggling of large sums of cash was a "warning

sign[] of drug trafficking, terrorism, money laundering,

racketeering, tax evasion and similar crimes." Id. § 371(a)(3),

115 Stat. at 337. Further, because couriers who attempt to smuggle

cash out of the country are typically low-level employees of

criminal organizations, Congress believed that "only the

confiscation of the smuggled bulk cash can effectively break the

cycle of criminal activity of which the laundering of the bulk cash

is a critical part." Id. § 371(a)(5), 115 Stat. at 337.

Congress, in enacting section 5332, responded to

Bajakajian in a way that it believed would, in most circumstances,

constitutionally permit the full forfeiture of currency not

reported to authorities as required by section 5316. The Report of

the House Committee on Financial Services stated:

The Committee believes . . . that bulk cash

smuggling is an inherently more serious

offense than simply failing to file a Customs

report. Because the constitutionality of a

-12-

forfeiture is dependent on the "gravity of the

offense" under Bajakajian, it is anticipated

that the full forfeiture of smuggled money

will withstand constitutional scrutiny in most

cases.

H.R. Rep. No. 107-250, at 53 (2001). Section 5332 makes clear that

Congress has now prohibited what it calls "bulk cash smuggling,"

and that it considers this to be a very serious offense. Congress

has thus tipped the forfeiture equation in favor of the prosecution

in bulk cash smuggling cases. Bajakajian itself stated that

"judgments about the appropriate punishment for an offense belong

in the first instance to the legislature." 524 U.S. at 336 (citing

Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts . . .

should grant substantial deference to the broad authority that

legislatures necessarily possess in determining the types and

limits of punishments for crimes . . . ."); Gore v. United States,

357 U.S. 386, 393 (1958) ("Whatever views may be entertained

regarding severity of punishment, . . . these are peculiarly

questions of legislative policy.")). But see United States v. Ely,

468 F.3d 399, 402 n.2 (6th Cir. 2006) (stating that the difference

between the superseded version of 18 U.S.C. § 982 and 31 U.S.C.

§ 5332 "[could not] be viewed as a meaningful change").

We turn to the question of whether the district court's

forfeiture order was plainly erroneous, given defendant's challenge

under the Excessive Fines Clause. In considering this question, we

need not, and do not, address whether Congress, in enacting section

-13-

5332, has eliminated in all instances any Eighth Amendment concerns

with respect to bulk cash smuggling forfeitures. In light of the

facts of this case, we conclude that there was no error at all,

much less plain error.

We consider first whether the forfeiture order

constituted punishment. See Heldeman, 402 F.3d at 223

("Forfeitures are subject to the Eighth Amendment's excessive fines

clause 'if they constitute punishment for an offense.'" (quoting

Bajakajian, 524 U.S. at 328)). The order here, which was "imposed

at the culmination of a criminal proceeding," and which "require[d]

conviction of an underlying felony," constituted punishment.6

Bajakajian, 524 U.S. at 328.

Next, we consider whether the forfeiture of the $114,948

would be "grossly disproportional to the gravity of the defendant's

offense." Id. at 337. For Eighth Amendment excessive fine

purposes, pertinent factors include: "(1) whether the defendant

falls into the class of persons at whom the criminal statute was

principally directed; (2) other penalties authorized by the

6

The government has not argued on appeal that the

forfeiture is merely a remedial customs remedy that does not

constitute punishment subject to the Excessive Fines Clause. See

One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237

(1972) (per curiam) (holding that customs statute requiring

forfeiture of undeclared goods concealed in baggage and imposing a

monetary penalty equal to value of goods imposed "remedial rather

than punitive sanctions"). But see Bajakajian, 524 U.S. at 340-41

(distinguishing between punishment for criminal offenses and civil

in rem forfeitures of goods imported in violation of customs laws).

-14-

legislature (or the Sentencing Commission); and (3) the harm caused

by the defendant." Heldeman, 402 F.3d at 223; see also Bajakajian,

524 U.S. at 337-40; Beras, 183 F.3d at 29.

On the first factor, we inquire whether the statute is

principally directed toward defendant. Given that we take the

forfeiture order to be independently based on Count Three, we

consider whether section 5332, the bulk cash smuggling statute, is

designed for offenders like Jose. In its USA PATRIOT Act findings,

Congress recognized that "couriers who attempt to smuggle . . .

cash out of the United States are typically low-level employees of

large criminal organizations." Pub. L. No. 107-56, § 371(a)(5),

115 Stat. at 337 (emphasis added). Here, the district court did

not find that defendant's funds were not linked to other crimes, as

was the case in Bajakajian. See 524 U.S. at 326. Although it is

true that the district court did not expressly find that the funds

were related to illegal activities,7 it is Jose who bears the

burden of showing that the forfeiture is unconstitutional. See

Ortiz-Cintrón, 461 F.3d at 81-82; Heldeman, 402 F.3d at 223.

7

After the district court announced Jose's sentence,

defense counsel characterized the court as having found that the

funds were "related to a drug offense." The judge responded:

I didn't say that at any moment. . . . I said

that [Jose's] story . . . as to how he came

about the money is hard to believe. And I am

not so naive as to think that somebody would

throw away $114,948 in a trash can. That is

all I said. I didn't use anything about

drugs, Counselor.

-15-

Indeed, defendant's far-fetched story explaining how he found the

money raises serious suspicions about whether the funds were

legally derived. Forfeitures based on violations of the bulk cash

smuggling statute are principally directed toward money launderers,

drug traffickers, tax evaders, and terrorists, as well as their

couriers. See USA PATRIOT Act, Pub. L. No. 107-56, § 371(a)(3),

(5), 115 Stat. at 337. Given the facts of this case and Jose's

unlikely story, we cannot say that section 5332 is not principally

designed for persons such as defendant.

Turning to the second factor, Jose, like Bajakajian,

faced a statutory maximum of 5 years' imprisonment. See 31 U.S.C.

§§ 5322(a), 5332(b)(1); Bajakajian, 524 U.S. at 339 n.14. Jose,

however, faced a tougher Guidelines sentence than Bajakajian. The

maximum Guidelines sentence that could have been imposed on Jose

was 18 months' imprisonment and a fine of $30,000, whereas the

maximum Guidelines sentence that could have been imposed on

Bajakajian was 6 months' imprisonment and a fine of only $5,000.

Thus, the forfeiture at issue here is less than 4 times the maximum

fine allowable under the Guidelines, whereas the forfeiture in

Bajakajian exceeded the maximum fine under the then-mandatory

Guidelines by a factor of more than 70. This undermines Jose's

argument that the forfeiture order is grossly out of proportion to

the gravity of his offense. See Beras, 183 F.3d at 29 n.5 (noting

that Bajakajian "suggests that the maximum penalties provided under

-16-

the Guidelines should be given greater weight than the statute

because the Guidelines take into consideration the culpability of

the individual defendant").

The third factor requires us to evaluate the harm caused

by defendant. We consider the harm caused by Jose's violation of

section 5332, the bulk cash smuggling statute. As Congress stated

in its enactment of the USA PATRIOT Act, it wanted to "emphasize

the seriousness of the act of bulk cash smuggling." Pub. L. No.

107-56, § 371(b), 115 Stat. at 337. Further, Congress found a link

between the laundering of bulk cash and various types of serious

criminal activity. See id. § 371(a)(3), 115 Stat. at 337. It

expressly tied the enforcement of section 5332 to efforts to "break

the cycle of criminal activity of which the laundering of the bulk

cash is a critical part." Id. § 371(a)(5), 115 Stat. at 337. We

adhere to Congress's view that defendant's violation of the bulk

cash smuggling statute constitutes a significant harm. Compare

Bajakajian, 524 U.S. at 339 ("Failure to report [Bajakajian's]

currency affected only one party, the Government, and in a

relatively minor way. . . . Had his crime gone undetected, the

Government would have been deprived only of the information that

$357,144 had left the country.").

Thus far we have concluded: (1) defendant's funds may

well have been linked to other criminal activities, (2) the amount

of forfeiture is not grossly out of line with the maximum fine

-17-

authorized by the Sentencing Guidelines, and (3) Congress has

clearly expressed its belief that bulk cash smuggling is a serious

offense linked to various kinds of harm. The consideration of a

fourth factor makes abundantly clear that there was no error here.8

The Supreme Court noted in Bajakajian that the Excessive

Fines Clause was taken from the English Bill of Rights of 1689.

524 U.S. at 335; see also Browning-Ferris Indus. of Vt., Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 266-67 (1989). The English

Bill of Rights of 1689 was passed in response to the subversion of

Magna Charta by Stuart judges who imposed excessive fines.

Bajakajian, 524 U.S. at 335. Magna Charta, in turn, required that

"amercements (the medieval predecessors of fines) should be

proportioned to the offense and that they should not deprive a

wrongdoer of his livelihood." Id. (emphasis added); see also id.

at 335-36 ("'A Free-man shall not be amerced for a small fault, but

after the manner of the fault; and for a great fault after the

greatness thereof, saving to him his contenement; (2) and a

Merchant likewise, saving to him his merchandise; (3) and any

other's villain than ours shall be likewise amerced, saving his

wainage.'" (quoting Magna Charta, 9 Hen. III, ch. 14 (1225), 1

Stat. at Large 6-7 (1762 ed.))). Given the history behind the

Excessive Fines Clause, it is appropriate to consider whether the

8

Even if we were measuring forfeiture by section 5316, the

cash reporting requirement, we would still find no violation of the

Excessive Fines Clause.

-18-

forfeiture in question would deprive Jose of his livelihood. Cf.

Bajakajian, 524 U.S. at 339-40 & n.15 (concluding that the full

forfeiture sought by the government would be grossly

disproportional to the gravity of defendant's offense, but noting

that defendant did not present any arguments regarding wealth,

income, or deprivation of livelihood).

It cannot reasonably be argued that forfeiture of the

$114,948 would deprive defendant of his livelihood. As the

district court noted at sentencing, "according to [Jose's] own

words, th[e] money wasn't his to start with. . . . So whether the

government forfeits it or not, it is really of no consequence to

him because it wasn't his to be forfeited." The money, by

defendant's own admission, was not related to efforts to maintain

his livelihood. Further, at the change of plea hearing, the

government indicated that Jose's business merchandise, which was

taken from him in Puerto Rico, was in the process of being sent to

his wife in St. Maarten so that she could resell the goods there,

in accordance with Jose's business practice. We conclude that the

forfeiture order does not implicate the historical concerns

underlying the Excessive Fines Clause.

For the foregoing reasons, we hold that defendant has

failed to show that there was error, much less error that was

plain. The amount of forfeiture simply is not "grossly

-19-

disproportional to the gravity of the defendant's offense." Id. at

337.

The government has requested a limited remand so that it

can pursue its intention, stated at the change of plea hearing, to

return to defendant the $1,400 he declared. The government plans

to move to amend the district court's order to reflect the

remaining balance of $113,548. We remand for this limited purpose.

In all other respects, we affirm the district court's forfeiture

order.

-20-