Petition for Writ of Certiorari — Lynette Gregory, Petitioner v. United States

No. 18=============================================================

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LYNETTE GREGORY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

===============================================================

Petition for Writ of Certiorari

To the United States Court of Appeals for the Third Circuit

===============================================================

PETITION FOR WRIT OF CERTIORARI

PETER GOLDBERGER

Counsel of Record

ANNA M. DURBIN

Court-Appointed (CJA)

50 Rittenhouse Place

Ardmore, PA 19003-2276

(610) 649-8200

Attorneys for Petitioner

June 2018

QUESTIONS PRESENTED

1. Is a question of the legality of a federal criminal sentence subject to

waiver by plea agreement? In avoidance of this question, should an agreement generally waiving the right to appeal but exempting any challenge to a

forfeiture “as set forth in” the Information and allowing claims that the

sentence “exceeds the statutory maximum” be construed to allow an appeal

questioning whether the criminal forfeiture imposed as part of the sentence

was unauthorized by any statute?

2. Does a criminal forfeiture in a federal drug case in the form of a

“money judgment” constitute an illegal sentence, because it is unauthorized

by any statute?

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LIST OF ALL PARTIES

The caption of the case in this Court contains the names of all parties to this

petition (petitioner Gregory and respondent United States). There were related

cases in the district court under different dockets, but no co-defendants or

consolidated appellants.

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TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... i

LIST OF ALL PARTIES .............................................................................................. ii

INDEX TO APPENDICES ......................................................................................... iii

TABLE OF AUTHORITIES ....................................................................................... iv

PETITION

OPINIONS BELOW .................................................................................................... 1

JURISDICTION ........................................................................................................... 1

CONSTITUTIONAL PROVISIONS, STATUTES and RULES INVOLVED ............ 2

STATEMENT OF THE CASE ..................................................................................... 6

Statement of Lower Court Jurisdiction .............................................................. 11

REASONS FOR GRANTING THE WRIT

1. The order of the Court below should be summarily reversed, or

full review on certiorari granted, as a plea agreement cannot

insulate an illegal sentence, such as a criminal forfeiture, from

appellate correction, and in any event petitioner’s plea agreement

should not be understood as waiving her right to appellate review

of an unlawful forfeiture. .............................................................................. 11

2. In disregard of this Court’s precedent, the courts of appeals,

including the court below, are routinely upholding lawless

“money judgment” criminal forfeitures, despite lack of authorization

in any statute. ................................................................................................... 16

CONCLUSION ........................................................................................................... 26

INDEX TO APPENDICES

A. Order of the United States Court of Appeals for the

Third Circuit, summarily affirming (Feb. 26, 2018)

B. Memorandum and Order of the district court on forfeiture issue

(E.D.Pa., Nov. 28, 2017)

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TABLE OF AUTHORITIES

CASES

Dean v. United States, 581 U.S. —, 137 S.Ct. 1170 (2017) ...................................... 23

Harmelin v. Michigan, 501 U.S. 957 (1991) ............................................................. 23

Hughey v. United States, 495 U.S. 411 (1990) .......................................................... 17

Jett v. Dallas Ind. School Dist., 491 U.S. 701 (1989) ............................................... 23

Jones v. United States, 526 U.S. 227 (1999) ............................................................. 17

Lagos v. United States, 584 U.S. —, 138 S.Ct. 1684 (May 29, 2018) .................. 22-23

Manrique v. United States, 581 U.S. —, 137 S.Ct. 1266 (2017) ............................... 10

Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985) ....................... 23

Massaro v. United States, 538 U.S. 500 (2003) ........................................................ 12

Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n,

453 U.S. 1 (1981) .................................................................................................... 23

Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77 (1981) .............. 23

Paroline v. United States, 572 U.S. —, 134 S.Ct. 1710 (2014) ................................. 17

Rodriguez v. Compass Shipping Co., 451 U.S. 596 (1981) ....................................... 23

United States v. Andis, 333 F.3d 886 (8th Cir. 2003) ............................................... 14

United States v. Attar, 38 F.3d 727 (4th Cir. 1994) .................................................. 14

United States v. Awad, 598 F.3d 76 (2d Cir. 2010) (per curiam) ............................. 20

United States v. Blackman, 746 F.3d 137 (4th Cir. 2014) ........................................ 20

United States v. Bownes, 405 F.3d 634 (7th Cir. 2005) ............................................ 14

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000) ...................................... 14

United States v. Casey, 444 F.3d 1071 (9th Cir. 2006) ............................................. 20

United States v. Cotton, 535 U.S. 625 (2002) ............................................................ 13

United States v. Croce, 334 F. Supp.2d 781 (E.D.Pa. 2004), modified,

345 F. Supp.2d 492, recons. denied, 355 F.Supp.2d 774 (2005), rev'd,

United States v. Croce, 209 Fed.Appx. 208 (3d Cir. 2006) (not precedential) ...... 22

United States v. Day, 524 F.3d 1361 (D.C.Cir. 2008) ............................................... 20

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United States v. Evans, 333 U.S. 483 (1948) ............................................................. 17

United States v. Freeman, 640 F.3d 180 (6th Cir. 2011) .......................................... 14

United States v. Gibson, 356 F.3d 761 (7th Cir. 2004) ............................................. 14

United States v. Gonzalez, 16 F.3d 985 (9th Cir. 1993) ............................................ 12

United States v. Good Real Property, 510 U.S. 43 (1993) ........................................ 23

United States v. Greenlaw, 554 U.S. 237 (2008) ....................................................... 13

United States v. Gregoire, 638 F.3d 962 (8th Cir. 2011) .......................................... 20

United States v. Gwinnett, 483 F.3d 200 (3d Cir. 2007) ........................................... 12

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) ..................................... 12, 14

United States v. Hall, 434 F.3d 42 (1st Cir. 2006) .................................................... 20

United States v. Hampton, 732 F.3d 687 (6th Cir. 2013) ......................................... 20

United States v. Honeycutt, 581 U.S. —, 137 S.Ct. 1626 (2017) ...................... passim

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) .............................................. 9

United States v. McGinty, 610 F.3d 1242 (10th Cir. 2010) ...................................... 20

United States v. Olquin, 643 F.3d 384 (5th Cir. 2011) ............................................. 20

United States v. Palmer, 456 F.3d 484 (5th Cir. 2006) ............................................ 12

United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) ........................................... 20

United States v. Story, 439 F.3d 226 (5th Cir. 2006) .......................................... 12, 14

United States v. Surgent, 2009 WL 2525137 (E.D.N.Y., Aug. 17, 2009) ................. 22

United States v. Tedder, 403 F.3d 836 (7th Cir. 2005) ............................................. 20

United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012) ..................................... 14

United States v. Vampire Nation (Banks), 451 F.3d 189 (3d Cir. 2006) ...... 18, 19, 24

United States v. Voigt, 89 F.3d 1050 (3d Cir. 1997) ................................................. 20

United States v. Watson, 582 F.3d 974 (9th Cir. 2009) ............................................ 14

CONSTITUTION, STATUTES AND RULES

U.S. Const., amend. V ............................................................................................ 2, 13

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18 U.S.C. § 2(a) ............................................................................................................ 6

18 U.S.C. § 982 ............................................................................................................ 19

18 U.S.C. § 3013(a) .................................................................................................... 10

18 U.S.C. § 3551(a) ................................................................................................ 2, 17

18 U.S.C. § 3553 ........................................................................................................... 2

18 U.S.C. § 3554 ..................................................................................................... 2, 17

18 U.S.C. § 3555 ........................................................................................................... 2

18 U.S.C. § 3556 ............................................................................................................ 2

18 U.S.C. § 3571(d) .................................................................................................... 24

18 U.S.C. § 3572 ......................................................................................................... 24

21 U.S.C. § 841(a)(1) .......................................................................................... 6, 8, 24

21 U.S.C. § 843(a)(3) .......................................................................................... 6, 8, 24

21 U.S.C. § 853(a) .............................................................................................. passim

21 U.S.C. § 853(b) ...................................................................................................... 18

21 U.S.C. § 853(p) .......................................................................................... 18, 24, 25

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 1291 .................................................................................................... 11, 12

31 U.S.C. § 5332(b) .............................................................................................. 22, 23

Fed.R.Crim.P. 11(b) ....................................................................................................... 9

Fed.R.Crim.P. 11(d) ..................................................................................................... 12

Fed.R.Crim.P. 11(e) ................................................................................................... 12

Fed.R.Crim.P. 32.2 ........................................................................................... 4, 17, 22

Fed.R.Crim.P. 32.2(b) ................................................................................................ 10

Fed.R.Crim.P. 32.2(c) ................................................................................................. 21

Fed.R.Crim.P. 32.2(e) ............................................................................................ 5, 25

Fed.R.Crim.P. 52(b) ................................................................................................... 13

Supreme Court Rule 13.5 ............................................................................................ 2

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Supreme Court Rule 14.1(g) ...................................................................................... 11

Supreme Court Rule 29.2 ............................................................................................ 2

Supreme Court Rule 30.1 ............................................................................................ 2

OTHER AUTHORITIES

Fed.R.Crim.P. 32.2, Adv. Comm. Note (2000) .......................................................... 22

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PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

LYNETTE GREGORY respectfully petitions this Court for a writ of certiorari

to review the judgment and order of the United States Court of Appeals for the Third

Circuit affirming her sentence of forfeiture in a criminal case.

OPINIONS BELOW

The Third Circuit’s dispositive, non-precedential order (per Restrepo, J., with

Bibas & Nygaard, JJ.), dated February 26, 2018, is attached as Appendix A. It is not

published or otherwise available on electronic databases. The United States District

Court for the Eastern District of Pennsylvania (Rufe, J.) wrote a memorandum

opinion with accompanying Order, filed November 28, 2018, overruling the

applicant’s objection to the entry of a criminal forfeiture in the form of a “money

judgment.” That Memorandum and Order are not published in the Federal

Supplement or otherwise available on electronic databases. A copy is attached as

Appendix B.

JURISDICTION

On February 26, 2018, the United States Court of Appeals for the Third Circuit

filed its order and judgment summarily affirming the petitioner’s judgment of

criminal forfeiture. Appx. A. No petition for rehearing was filed by any party. As a

result, pursuant to this Court’s Rules 13.1 and 13.3, a petition for certiorari was

initially due on or before May 29, 2018, as the ninetieth day thereafter was Sunday,

May 27, and Monday, May 28, was Memorial Day, a federal holiday. Upon timely

application, Justice Alito on May 21, 2018, under No. 17A1290, granted a 30-day

extension of time until June 28, 2018, for the filing of a certiorari petition. This

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petition is being filed electronically and by postmark on or before that extended date.

Rules 13.1, 13.3, 13.5, 29.2, 30.1. Petitioner invokes this Court’s jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES and RULES INVOLVED

The Fifth Amendment to the Constitution of the United States provides,

in pertinent part, “[N]or shall any person ... be deprived of life, liberty, or property

without due process of law; ....”

Title 18, United States Code, provides, in pertinent part:

§ 3551. Authorized Sentences

(a) In general. – Except as otherwise specifically provided, a defendant who has

been found guilty of an offense described in any Federal statute ... shall be

sentenced I accordance with the provision of this chapter ....

(b) Individuals. – An individual found guilty of an offense shall be sentenced in

accordance with the provisions of section 3553, to —

(1) a term of probation as authorized by subchapter B;

(2) a fine as authorized by subchapter C; or

(3) a term of imprisonment as authorized by subchapter D.

A sentence to pay a fine may be imposed in addition to any other sentence. A

sanction authorized by section 3554 [criminal forfeiture], 3555 [Order of Notice to

Victims], or 3556 [restitution] may be imposed in addition to the sentence required

by this subsection.

****

§ 3554. Order of Criminal Forfeiture

The court, in imposing a sentence on a defendant who has been found guilty of an

offense described in section 1962 of this title or in title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 shall order, in addition to the

sentence that is imposed pursuant to the provisions of section 3551, that the

defendant forfeit property to the United States in accordance with the provisions of

section 1963 of this title or section 413 of the Comprehensive Drug Abuse and

Control Act of 1970 [i.e., 21 U.S.C. § 853].

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Title 21, United States Code, provides, in pertinent part:

§ 841 - Prohibited acts A

(a) Unlawful acts – Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally —

(1) to ... distribute ... a controlled substance; * * *

(b) Penalties – Except as otherwise provided in section 849, 859, 860, or 861 of

this title, any person who violates subsection (a) of this section shall be

sentenced as follows:

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(1) * * * *

(C) In the case of a controlled substance in schedule ... II, ... such person

shall be sentenced to a term of imprisonment of not more than 20 years ..., a

fine not to exceed the greater of that authorized in accordance with the

provisions of Title 18 or $1,000,000 if the defendant is an individual ..., or

both.

****

§ 843. Prohibited Acts C

(a) Unlawful acts – It shall be unlawful for any person knowingly or intentionally —

***

(3) to acquire or obtain possession of a controlled substance by

misrepresentation, fraud, forgery, deception, or subterfuge; * * * *

(d) Penalties—

(1) Except as provided in paragraph (2), any person who violates this

section shall be sentenced to a term of imprisonment of not more than 4

years, a fine under Tile 18, or both; * * * *

§ 853 - Criminal forfeitures

(a) Property subject to criminal forfeiture.—Any person convicted of a

violation of this subchapter or subchapter II punishable by imprisonment for

more than one year shall forfeit to the United States, irrespective of any

provision of State law—

(1) any property constituting, or derived from, any proceeds the person

obtained, directly or indirectly, as the result of such violation;

(2) any of the person’s property used, or intended to be used, in any manner

or part, to commit, or to facilitate the commission of, such violation; and

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(3) in the case of a person convicted of engaging in a continuing criminal

enterprise in violation of section 848 of this title, the person shall forfeit, in

addition to any property described in paragraph (1) or (2), any of his interest

in, claims against, and property or contractual rights affording a source of

control over, the continuing criminal enterprise.

The court, in imposing sentence on such person, shall order, in addition to

any other sentence imposed pursuant to this subchapter or subchapter II,

that the person forfeit to the United States all property described in this

subsection. In lieu of a fine otherwise authorized by this part, a defendant

who derives profits or other proceeds from an offense may be fined not more

than twice the gross profits or other proceeds.

(b) Meaning of term “property.”—Property subject to criminal forfeiture

under this section 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.

****

(p) Forfeiture of substitute property

(1) In general—Paragraph (2) of this subsection shall apply, if any property

described in subsection (a), as a result of any act or omission of the

defendant—

(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.

(2) Substitute property—In any case described in any of subparagraphs (A)

through (E) of paragraph (1), the court shall order the forfeiture of any other

property of the defendant, up to the value of any property described in

subparagraphs (A) through (E) of paragraph (1), as applicable.

* * * *

The Federal Rules of Criminal Procedure provide, in pertinent part:

Rule 32.2 Criminal Forfeiture

(a) Notice to the Defendant. A court must not enter a judgment of

forfeiture in a criminal proceeding unless the indictment or information

contains notice to the defendant that the government will seek the forfeiture

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of property as part of any sentence in accordance with the applicable statute.

The notice should not be designated as a count of the indictment or

information. The indictment or information need not identify the property

subject to forfeiture or specify the amount of any forfeiture money judgment

that the government seeks.

(b) Entering a Preliminary Order of Forfeiture.

(1) Forfeiture Phase of the Trial.

(A) Forfeiture Determinations. As soon as practical after a verdict or finding

of guilty, or after a plea of guilty or nolo contendere is accepted, on any count

in an indictment or information regarding which criminal forfeiture is

sought, the court must determine what property is subject to forfeiture under

the applicable statute. 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. If the government

seeks a personal money judgment, the court must determine the amount of

money that the defendant will be ordered to pay.

(B) Evidence and Hearing. The court's determination may be based on

evidence already in the record, including any written plea agreement, and on

any additional evidence or information submitted by the parties and accepted

by the court as relevant and reliable. If the forfeiture is contested, on either

party's request the court must conduct a hearing after the verdict or finding

of guilty.

****

(4) Sentence and Judgment.

(A) When Final. At sentencing—or at any time before sentencing if the

defendant consents—the preliminary forfeiture order becomes final as to the

defendant. If the order directs the defendant to forfeit specific property, it

remains preliminary as to third parties until the ancillary proceeding is

concluded under Rule 32.2(c).

(B) Notice and Inclusion in the Judgment. The court must include the

forfeiture when orally announcing the sentence or must otherwise ensure

that the defendant knows of the forfeiture at sentencing. The court must also

include the forfeiture order, directly or by reference, in the judgment, but the

court's failure to do so may be corrected at any time under Rule 36.

(C) Time to Appeal. The time for the defendant or the government to file an

appeal from the forfeiture order, or from the court's failure to enter an order,

begins to run when judgment is entered. If the court later amends or declines

to amend a forfeiture order to include additional property under Rule 32.2(e),

the defendant or the government may file an appeal regarding that property

under Federal Rule of Appellate Procedure 4(b). The time for that appeal

runs from the date when the order granting or denying the amendment

becomes final.

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(5) Jury Determination.

(A) Retaining the Jury. In any case tried before a jury, if the indictment or

information states that the government is seeking forfeiture, the court must

determine before the jury begins deliberating whether either party requests

that the jury be retained to determine the forfeitability of specific property if

it returns a guilty verdict.

(B) Special Verdict Form. If a party timely requests to have the jury determine forfeiture, the government must submit a proposed Special Verdict

Form listing each property subject to forfeiture and asking the jury to

determine whether the government has established the requisite nexus

between the property and the offense committed by the defendant.

****

STATEMENT OF THE CASE

The petitioner, Lynette Gregory, represented by prior CJA counsel, pleaded

guilty in the United States District Court for the Eastern District of Pennsylvania on

April 22, 2015, pursuant to a plea agreement, to 35 counts of an Information. Filed

October 25, 2013, along with a waiver of indictment, the Information charged

violations of the Controlled Substances Act under 21 U.S.C. §§ 841(a)(1) & 843(a)(3)

and 18 U.S.C. § 2(a). As stipulated in the Agreement and specified in the Information, the nature of the offense is her aiding and abetting, on 27 occasions, the

distribution by others between 2010 and 2012 of a bit less than 147 grams of

oxycodone in toto, and acquiring a controlled substance by fraud on eight occasions in

2011 and late 2010.

The charges against petitioner arose out of a conspiracy in which one Leon

Little used the administrative assistant of a medical doctor to schedule appointments

and forge prescriptions for oxycodone using the doctor’s prescription pad. Little then

recruited three drivers to recruit “pseudo-patients” and transport them to the doctor’s

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office to obtain prescriptions and then to pharmacies to obtain oxycodone. The

oxycodone they obtained in this way was then turned over to Little, who paid them

for their service and then sold the drugs for his own benefit. Petitioner Lynette

Gregory was one of 60 pseudo-patients who picked up oxycodone prescriptions from

the doctor’s office and then obtained the oxycodone from various pharmacies. Ms.

Gregory was charged with participating in 27 trips to at least three pharmacies,

where she had 62 prescriptions filled, based on presenting 16 forged prescriptions.

For her involvement in the conspiracy, petitioner was paid $250 per trip, for a total of

$7750 in cash over a 21-month period (less than $370 per month). She did not dispute

that these funds were paid to her out of the gross proceeds of Little’s drug distribution business.

At the time of the offense, petitioner Gregory was disabled from back and knee

injuries suffered in a bus accident, and a subsequent re-injury working at a catering

company. As a result of these injuries she suffered continuing physical pain. She was

living on Social Security disability benefits, supplemented with food stamps. The

record of sentencing further revealed that she suffers from the effects of six years of

being sexually abused by a maternal uncle from ages 6 to 12. She was diagnosed with

bi-polar disorder and anxiety, and suicidal depression. Despite repeated rounds of inpatient treatment, she continued to suffer from alcoholism and drug addiction.

Nevertheless, she obtained her GED in 1999. At the time of her arrest and sentencing, she retained no assets, direct or derivative, from her participation in the

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conspiracy from 2010-2012. All of those funds had been spent on current living

expenses, her children, and her drug and alcohol abuse.

The Information contains a Notice of Forfeiture under 21 U.S.C. § 853(a)(1),

which identifies the property sought to be forfeited (cash proceeds of drug sales, or

any property “derived from” such proceeds1) but does not mention any “forfeiture

money judgment” as being sought. Under the plea agreement, Ms. Gregory agreed

“not to contest forfeiture as set forth in the notice of forfeiture charging forfeiture

under 21 U.S.C. § 853” (emphasis added). The agreement included her acknowledgment, in ¶4, of the “total maximum sentence” for the various counts, including

that “any property constituting, or derived from, proceeds obtained directly or

indirectly from the commission of the violations of Title 21, United States Code,

Sections 841(a)(1) and 843 (a)(3) also may be ordered.”

The plea agreement also contained a provision under which petitioner waived

her right to appeal, with certain specified exceptions. One exception to the appellate

waiver is for any sentence that is illegal in the sense of being unauthorized by

statute,2 and another is for any argument that might satisfy the Third Circuit’s

flexible “miscarriage of justice” standard. See United States v. Khattak, 273 F.3d 557,

1 The Information also references “property used or intended to be used ... to commit the

offense,” see id.(a)(2), but that statutory provision has no application on the facts of this

case, as applied to petitioner Gregory.

2 Paragraph 12.b. of the Agreement stated, “If the government does not appeal, then

notwithstanding the waiver provision set forth in this paragraph, the defendant may file

a direct appeal or petition for collateral relief but may raise only a claim, if otherwise

permitted by law in such a proceeding: (1) that the defendant's sentence on any count of

conviction exceeds the statutory maximum for that count as set forth in paragraph 4

above; ....”

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562 (3d Cir. 2001), and its progeny. At the hearing for acceptance of the guilty plea,

the district court reviewed the appellate waiver clause with Ms. Gregory, as required

by Fed.R.Crim.P. 11(b)(1)(N), assuring her that “if I sentence you on any of those

counts and the sentence goes above the statutory maximum for that count, you

should be able to appeal that and you will be, because it’s an illegal sentence and you

should – it should be corrected – understood?” Tr. 4/22/15, at 30. The agreement’s

language specifically referencing forfeiture was not mentioned at the plea hearing.

Before the 35-count Information was filed, petitioner had been cooperating

with the government, including testifying before the grand jury. Prior to sentencing,

she was supervised on pre-trial release for over three years. This release included

conditions of cooperating with mental health, and alcohol and drug abuse treatment.

Over that period of time, petitioner successfully addressed her mental health and

substance abuse and maintained sobriety. Petitioner Gregory is now 54 years old.

She has two grown children, now on their own, and two minor children at home.

On November 13, 2017, the government moved the district court for entry of a

“forfeiture money judgment” in the amount of $7750. Petitioner immediately

responded in opposition, noting that a “money judgment” was neither mentioned in

the Information’s Notice of Forfeiture nor authorized by statute.

On November 14, 2017, Ms. Gregory was sentenced, as a downward departure,

to concurrent terms of three years’ probation with three months to be served on house

arrest and 100 hours of community service over the course of her probation. No fine

was imposed, based on a finding of inability to pay. She was also ordered to pay

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$3500 in special assessments, as required by 18 U.S.C. § 3013(a)(2)(A) ($100 per

felony count). At sentencing the court orally reserved the question of whether to enter

the challenged personal money judgment of forfeiture, pending further briefing and

argument. Judgment of sentence (not including the forfeiture) was then entered on

November 15, 2017. In keeping with her agreement, petitioner did not appeal the

principal judgment of conviction and sentence.

The final order of forfeiture, over defendant’s objection to its legality, was filed

on November 28, 2017, in the amount of $7750. The district court’s order is supported

by a memorandum opinion, which holds that the court is bound by existing Circuit

precedent, even if that precedent is inconsistent in principle with this Court’s later

cases. Appx. B. Petitioner then filed, on December 12, 2017, a timely notice of appeal

from the forfeiture judgment alone. See Fed.R.Crim.P. 32.2(b)(4)(C) (time to appeal);

Manrique v. United States, 581 U.S. —, 137 S.Ct. 1266 (2017) (sanction that is

entered separately from and subsequent to the principal sentencing judgment must

be separately appealed to bring that sanction before the court of appeals for review).

In the U.S. Court of Appeals for the Third Circuit, the government filed a

motion to enforce the appellate waiver clause of the plea agreement and on that basis

for summary affirmance. Although petitioner’s appeal was taken solely from the

order of forfeiture, the government’s boilerplate motion made no mention whatsoever

of the forfeiture or the surrounding litigation in the district court. It also advanced no

argument as to why petitioner’s preserved challenge to the legality of that order

would be within the scope of the appeal waiver provision of her plea agreement.

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Petitioner responded with a detailed memorandum of law, explaining why her appeal

was not barred by the terms of the agreement, construed in the light of Circuit

precedent, and why she had at least a prima facie reasonable argument to present

against the legality of the forfeiture that had been imposed in her case.

In an unexplained, one-sentence order filed February 26, 2018, a panel of the

Third Circuit granted the government’s motion and summarily affirmed the

challenged criminal forfeiture judgment. Appx. A. This petition follows.

Statement of Lower Court Jurisdiction Under Rule 14.1(g)(ii). The

United States District Court had subject matter jurisdiction of this case under 18

U.S.C. § 3231; the indictment alleged federal offenses committed in the district. The

Court of Appeals had jurisdiction under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

1. The order of the Court below should be summarily reversed, or full

review on certiorari granted, as a plea agreement cannot insulate an

illegal sentence, such as a criminal forfeiture, from appellate correction,

and in any event petitioner’s plea agreement should not be understood as

waiving her right to appellate review of an unlawful forfeiture.

Plea agreement provisions waiving in most circumstances the right to appeal

the sentence to be imposed have become ubiquitous in federal criminal cases.

Petitioner’s Third Circuit appeal was summarily affirmed in apparent reliance on

such a provision, notwithstanding her arguments that the criminal forfeiture imposed

on her was illegal. As the Court is well aware, over 95% of federal criminal cases are

resolved with plea agreements, and many of those agreements include clauses

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waiving the right to appeal. This Court should grant the petition to resolve the

applicable standard and regularize this important process.

If a guilty plea is not voluntarily, knowingly and intelligently entered, then the

plea may be withdrawn in the district court, Fed.R.Crim.P. 11(d), or invalidated on

appeal or collateral attack, Rule 11(e), including any associated agreement and

sentence. That is not this case.3 To the extent that a claim of ineffective assistance of

counsel may be cognizable on direct appeal, cf. Massaro v. United States, 538 U.S. 500

(2003), a waiver of the right to appeal will generally be held not to bar that issue. See

United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam).

Similarly, if the government breaches the agreement at sentencing, then the

restrictions of that agreement cannot be enforced against the defendant. E.g., United

States v. Gonzalez, 16 F.3d 985, 989–90 (9th Cir. 1993). Once again, no such issue is

presented here.

In this case, petitioner argued that the issue she sought to advance fell outside

the terms of the appeal waiver, particularly if construed in the defendant’s favor,

because any unauthorized sanction necessarily exceeds the “statutory maximum.” In

most Circuits, in that situation, the appeal may proceed. See, e.g., United States v.

Palmer, 456 F.3d 484 (5th Cir. 2006) (waiver of right to appeal “sentence” did not bar

appeal of conviction noting lack of factual basis for plea). And regardless of the literal

3 A plea agreement including an appeal waiver does not deprive the court of appeals of

jurisdiction under 28 U.S.C. § 1291, and the waiver is therefore subject both to construction by the appellate court and to waiver and forfeiture by the appellee. See, e.g., United

States v. Gwinnett, 483 F.3d 200, 202–03 (3d Cir. 2007); United States v. Story, 439 F.3d

226, 230–31 (5th Cir. 2006).

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words of the agreement, she contended, a claim that the court had imposed a sanction

that no federal statute authorizes should be cognizable on appeal as a matter either

of policy or of due process. This Court should either grant this petition for certiorari

and summarily vacate and remand on this question, or else grant the petition to

address when the legality of a federal sentence is inherently cognizable on appeal

without regard to any purported waiver.

In United States v. Greenlaw, 554 U.S. 237 (2008), this Court held that the

government forfeits its opportunity to have an illegally lenient sentence corrected on

appeal if it fails to file a timely notice of appeal, even if the defendant appeals the

same judgment, notwithstanding the appellate court’s authority under Fed.R.Crim.P.

52(b) to notice “plain error” sua sponte. In that situation, in other words, an unlawful

sentence may be tolerated. But a criminal defendant, unlike the government, has a

constitutional right not to be deprived of life, liberty or property without due process

of law. U.S. Const., amend. V. This Court has never held that an illegal sentence that

prejudices the defendant (that is, a criminal sanction that lacks a clear statutory

foundation) can be let stand because of a procedural defect, such as a failure to object.

While a court cannot be said to lack “jurisdiction” to enter an illegal sentence, United

States v. Cotton, 535 U.S. 625, 629–31 (2002),4 it certainly lacks any semblance of

4 The life sentence imposed in Cotton was “illegal” in the sense that the degree of the

offense that would allow that sentence was not supported by the facts alleged in the

indictment. Those facts, however, were proven at trial and undisputed. For those

reasons, and for lack of surprise, this Court held there was no miscarriage of justice and

thus no plain error. 535 U.S. at 631–34.

-13-

lawful authority to do so. Hence, any such sentence inherently constitutes a

miscarriage of justice.

The standards for allowing appeals to proceed notwithstanding waiver clauses

in plea agreements vary somewhat by Circuit. But even the Circuits that employ the

narrowest scope of exceptions allow appeals notwithstanding a waiver where the

sentence imposed exceeds the legislatively-declared statutory maximum (as well as

where the record reveals a denial of the right to counsel at sentencing, or if the

sentence reflects a racial or similarly impermissible bias). See United States v.

Thornsbury, 670 F.3d 532 (4th Cir. 2012), reaffirming United States v. Brown, 232

F.3d 399, 403 (4th Cir. 2000); United States v. Attar, 38 F.3d 727, 72–33 (4th Cir.

1994); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005) (only due process

limits enforcement)5; accord, United States v. Watson, 582 F.3d 974, 987 (9th Cir.

2009). See also United States v. Freeman, 640 F.3d 180, 194 (6th Cir. 2011)

(suggesting that only sentences exceeding statutory maximum and violations of

“contract law principles” can justify exceptions to appeal waiver); United States v.

Story, 439 F.3d 226, 231 (5th Cir. 2006) (seemingly not admitting of any such

exceptions, referencing only principles of “contract law”).6

5 See also United States v. Gibson, 356 F.3d 761, 763 (7th Cir. 2004) (agreed sentence

exceeded statutory maximum under cited statute; plea and sentence vacated and

remanded despite waiver of right to appeal).

6 The Eighth and Tenth Circuits say they apply a seemingly flexible “miscarriage of

justice” standard for finding exceptions to appeal waivers, but their application of that

rule is not open-ended. Instead, it is “extremely narrow,” expressly equated with the

standard of the circuits that allow only the narrowest exceptions. See United States v.

Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam); United States v.

Andis, 333 F.3d 886, 892 (8th Cir. 2003) (en banc).

-14-

Under the plea agreement in the present case, petitioner Gregory agreed “not

to contest forfeiture as set forth in the notice of forfeiture charging forfeiture under 21

U.S.C. § 853.” (emphasis added). That Notice of Forfeiture referenced § 853(a)(1) and

not any such thing as a “money judgment.” The plea agreement also contained a

provision exempting from the waiver of petitioner’s right to appeal any sentence that

“exceeds the statutory maximum for that count as set forth in paragraph 4 above.”

Paragraph 4, in turn, had referenced criminal forfeiture of proceeds (and property

derived from proceeds), but had made no mention of a “forfeiture money judgment.”

As explained by the district judge during the plea colloquy, “if I sentence you on any

of those counts and the sentence goes above the statutory maximum for that count,

you should be able to appeal that and you will be, because it’s an illegal sentence and

you should – it should be corrected – understood?” On this record, it is apparent that

the court of appeals should not have prevented petitioner’s appeal from the money

judgment from proceeding.

But even if the foregoing fact-specific grounds are ignored, under any of the

standards articulated in the Circuits, petitioner’s appeal could not properly have been

summarily rejected. The plea agreement in her case could not, consistent either with

due process or with federal supervisory standards, have prevented an appeal seeking

to argue that the judgment of forfeiture was unauthorized by statute. This Court

should grant the petition for certiorari and either summarily vacate and remand for

_____________________(cont'd)

-15-

consideration of the merits, or else proceed to consider under what standard a

defendant’s appeal of an assertedly unlawful sentence must be allowed notwithstanding a written waiver of the right to appeal included in a plea agreement.

2. In disregard of this Court’s precedent, the courts of appeals, including

the court below, are routinely upholding lawless “money judgment”

criminal forfeitures, despite lack of authorization in any statute.

Certiorari may and should also be granted to address the merits of petitioner’s

underlying appellate issue – the legality of the forfeiture imposed in her case. She

challenged that imposition in the district court, where the issue was squarely joined,

briefed, and addressed in a reasoned order and opinion. Appx. B. Petitioner then

filed a timely notice of appeal seeking to challenge it. The court below had jurisdiction

to address her contention. Under its own controlling precedent, however, that Court

was (wrongly) bound to affirm on the merits, and may have taken the shortcut of

granting the government’s motion for summary affirmance on that basis alone,

particularly given the weakness of the government’s contention (as discussed under

Point 1) that petitioner had waived the right to present that issue on appeal.

Although the court of appeals gave no indication of its actual reasoning, see Appx. A,

this Court is free to grant the present petition, express its disagreement with the

enforcement of the appellate waiver, and then consider the merits as well. The latter

issue is important, is squarely presented on the instant record, and has been

thoroughly addressed in the Circuits. Upon consideration of the merits, it will be

apparent that the judgment of the court below should be reversed.

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Forfeiture is referred to in the governing statutes as a “sanction” for criminal

conduct. See 18 U.S.C. §§ 3551(a), 3554. But however labeled by Congress, it is, as a

matter of fundamental criminal and constitutional law, part of the sentence for the

crime of which a defendant stands convicted. No sentence is lawful unless authorized

by a statute, strictly construed. Jones v. United States, 526 U.S. 227, 233–34 (1999);

United States v. Evans, 333 U.S. 483 (1948). This fundamental rule of legality is

equally applicable to “sanctions” that stand in some sense apart from the core of the

sentence. See Paroline v. United States, 572 U.S. —, 134 S.Ct. 1710 (2014) (strict

construction of restitution statute); Hughey v. United States, 495 U.S. 411, 422 (1990)

(same). To establish a criminal forfeiture, like any other sanction or sentence for the

commission of a federal crime, in other words, the government must show that its

claim comes squarely within a statutory provision calling for that penalty. See United

States v. Honeycutt, 581 U.S. —, 137 S.Ct. 1626, 198 L.Ed.2d 73 (2017) (“joint and

several” liability for criminal forfeiture is unlawful, for lack of express statutory

authorization).

The governing Rule of Procedure properly and explicitly states that the court

may order forfeiture only of “property” that “is subject to forfeiture under the applicable statute.” Fed.R.Crim.P. 32.2(b)(1)(A). To the same effect, petitioner in her plea

agreement stipulated that she would not challenge any forfeiture in keeping with

(that is, “as set forth in”) the Notice of Forfeiture that was part of the Information to

which she pleaded guilty. That Notice seeks forfeiture only under 21 U.S.C.

§ 853(a)(1), and identifies the property sought to be forfeited (cash proceeds of drug

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sales, or any property “derived from” such proceeds7) but does not mention any

“forfeiture money judgment” as being sought.

Referencing the Third Circuit’s pre-Honeycutt decision in United States v.

Vampire Nation (Banks), 451 F.3d 189, 202 (3d Cir. 2006) , the district court ruled

that petitioner’s admitted spending on daily essentials of the $250 payments she had

received for acting as a “pseudo-patient” courier in the drug business meant that the

money had “been transferred ... to ... a third party,” within the meaning of 21 U.S.C.

§ 853(p), thus triggering a right to the forfeiture of substitute property under that

provision. So far, so good. But § 853(p) itself must be strictly construed and enforced.

Honeycutt, 137 S.Ct. at 1634. And that provision, like § 853(a) refers exclusively to

forfeiture of “property” of the defendant, as defined in § 853(b). Subsection (b)

encompasses all forms of real and personal property, tangible and intangible,8 but

says nothing about entry of a general judgment against the defendant.

Neither the statute referenced in the Notice nor any other statute applicable to

this case – or to almost any other federal criminal case – authorizes a criminal

forfeiture in the form of a “money judgment.” Rather, under federal forfeiture

statutes, only specific and identified items of property can be “forfeited.” This is

equally true of tainted property, property derived from the original tainted property

(here, various packets of $250 in cash), or substitute assets. “Criminal forfeiture

7 The Information also references “property used or intended to be used ... to commit the

offense,” see id.(a)(2), but that statutory provision has no application on the facts of this

case.

8 See Statutes Involved ante.

-18-

statutes empower the Government to confiscate property derived from or used to

facilitate criminal activity.” Honeycutt, 137 S.Ct. at 1631. Forfeiture is “limit[ed] to”

specific categories of property described in the governing statute. Id. 1632. “These

provisions, by their terms, limit forfeiture under § 853 to tainted property ....” Id.

Certiorari should be granted to articulate, further establish and enforce this basic

principle of legality which is presently lacking from the case law governing criminal

forfeiture in the Circuits, as applied to so-called “money judgments.”

That $7750 in cash may, at one time, while that cash was still in her possession, have been forfeitable from the petitioner under 21 U.S.C. § 853 (a)(1) , the

provision covering proceeds and property derived from proceeds, does not mean that

“the sum of” $7750 was forfeitable, as stated in the district court’s order, and as

affirmed by the court below. A “sum” of money is a mathematical measurement of

value; it is not a description of any “property” which is subject to forfeiture under 21

U.S.C. § 853(a); see also id. § 853(b) (“property” defined to encompass both real and

personal property, whether tangible or intangible; a “sum” of money, in the abstract,

is neither), or under § 853(p). In other words, “the sum of $7750” is not the same

thing (for example) as “$7750 in United States currency,” which would be a form of

tangible, personal “property,” and forfeitable if seized from a defendant.

The district court, and presumably the court below, upheld the money

judgment forfeiture in this case in reliance on the Third Circuit’s two cases touching

on the subject. See United States v. Vampire Nation (Banks), 451 F.3d 189, 202 (3d

Cir. 2006) (fraud and money laundering forfeiture under 18 U.S.C. § 982), relying on

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United States v. Voigt, 89 F.3d 1050, 1084-88 (3d Cir. 1997).) While a careful reading

of those cases might find them distinguishable, the lower courts did not view the local

precedent that way, and in any event the other Circuits uniformly take the same

position.9 Yet not a single one of these cases advances a statutory-language rationale

for its holding, as this Court’s cases would require. To the contrary, the conventional

approach is typified by the Fourth Circuit’s opinion, which accurately states, “It is

well settled that nothing in the applicable forfeiture statutes suggests that money

judgments are forbidden.” United States v. Blackman, 746 F.3d 137, 145 (4th Cir.

2014); accord, United States v. Day, 524 F.3d 1361, 1377 (D.C.Cir. 2008) (“Nothing in

the relevant statutes suggests that money judgments are forbidden.”). Needless to

say, that is the opposite of the correct approach.

Under our Constitution, the government does not enjoy all powers that are not

forbidden to it. To the contrary, the government can exercise no power against a

person’s liberty or property that is not expressly granted to it – particularly in a

criminal case. The words of the applicable provisions “work to limit the operation of

the statute.” Honeycutt, 136 S.Ct. at 1632. Because the kind of forfeiture ordered in

9 E.g., United States v. Olquin, 643 F.3d 384, 395–98 (5th Cir. 2011) (collecting cases); see

also United States v. Hampton, 732 F.3d 687, 691–92 (6th Cir. 2013); United States v.

Phillips, 704 F.3d 754, 771 (9th Cir. 2012); United States v. Gregoire, 638 F.3d 962, 972

(8th Cir. 2011); United States v. McGinty, 610 F.3d 1242, 1245–49 (10th Cir. 2010);

United States v. Awad, 598 F.3d 76 (2d Cir. 2010) (per curiam); United States v. Casey,

444 F.3d 1071, 1073–77 (9th Cir. 2006); United States v. Hall, 434 F.3d 42, 58–60 (1st

Cir. 2006) (citing Second, Seventh and Eighth Circuits); United States v. Tedder, 403

F.3d 836, 841 (7th Cir. 2005).

-20-

this case is unauthorized by law, yet commonly imposed and routinely approved, this

Court’s intervention is required.

A criminal forfeiture is in personam, not in rem; that is, the criminal penalty

statute does not demand forfeiture of some item of misused property regardless of

who owns it, but rather demands forfeiture only of a particular defendant’s tainted

interest in the property. 21 U.S.C. § 853(n); Fed.R.Crim.P. 32.2(c) (providing for third

party claims asserting an interest, other than the defendant’s, in property ordered

criminally forfeited); see Honeycutt, 137 S.Ct. at 1635. For this basic conceptual

reason, the forfeiture statutes do not authorize the entry of “a general judgment in

personam” against a criminal defendant for a sum of money, as if the government had

won a lawsuit against the defendant. Rather, any criminal forfeiture judgment must

be limited to “property constituting, or derived from any proceeds the person

obtained, directly or indirectly,” from committing the crime. 21 U.S.C. § 853(a)(1).

The government may be able to take other property, if such exists, but nothing in the

statute allows it to place a judgment lien against the defendant that places her in a

state of perpetual financial impotence and prevents her from getting back on her feet.

In this case, after identifying $7750 as the total amount of money received by

petitioner over the life of the conspiracy for her minor role as a “pseudo-patient,” the

district court failed to take the step required by the plain language of the statute and

identify any “property” made forfeitable by law, or failing that, any substitute

property of the impecunious petitioner that the government was entitled to take

possession of, in satisfaction of its total potential forfeiture entitlement.

-21-

Although as already noted many courts have approved government demands

for a “personal money judgment” at sentencing in lieu of a judgment ordering the

forfeiture of the defendant’s proven interest in specific tainted property, or failing

that, some specific “substitute asset” of equal value that the defendant actually

possesses, no court has persuasively justified this lawless practice. A careful

consideration of the language, structure, history and purpose of the criminal

forfeiture statutes demonstrates that such personal money judgments are not

authorized. See United States v. Surgent, 2009 WL 2525137, *6–*7 (E.D.N.Y., Aug.

17, 2009) (Gleeson, J.).10

When Congress intends to authorize a “personal money judgment” in lieu of

forfeiture of the defendant’s interest in tainted (or substitute) property, it knows how

to authorize that remedy. It has done so exactly once. See 31 U.S.C. § 5332(b)(4)

(“personal money judgment” as alternative penalty where forfeiture not effective, in

cases of bulk cash smuggling). Nothing in 21 U.S.C. § 853 authorizes that penalty.11

Such differences in wording between statutes addressing similar concerns are given

controlling weight over general statutory purpose when interpreting the statute

lacking the specific provision, particularly in criminal cases. See Lagos v. United

10 See also United States v. Croce, 334 F. Supp.2d 781 (E.D.Pa. 2004), modified & adhered

to on reconsideration, 345 F. Supp.2d 492, reconsideration denied, 355 F.Supp.2d 774

(2005), rev’d, 209 Fed.Appx. 208 (3d Cir. 2006) (not precedential). The district court’s

opinions in Croce were the first to carefully analyze the issue.

11 Fed.R.Crim.P. 32.2, which regulates criminal forfeiture proceedings, refers to “money

judgments” in terms of notice, factfinding and the right to jury trial See Rule 32.2(a),

(b)(1)(A), (b)(5) (by implication). As stated in the Advisory Committee Note (2000), “A

number of cases have approved use of money judgment forfeitures. The Committee takes

no position on the correctness of those rulings.”

-22-

States, 584 U.S. —, 138 S.Ct. 1684, 1689–90 (May 29, 2018) (construing restitution

statute); Dean v. United States, 581 U.S. —, 137 S.Ct. 1170, 1177 (2017) (construing

mandatory consecutive sentencing law).

Discussing forfeiture, this Court has recognized that “it makes sense to

scrutinize governmental action more closely when the State stands to benefit”

financially. United States v. Good Real Property, 510 U.S. 43, 56 (1993), quoting

Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991) (Scalia, J., concurring). And as

this Court has also held, “The comprehensive character of the remedial scheme

expressly fashioned by Congress strongly evidences an intent not to authorize

additional [judicially inferred] remedies.” Northwest Airlines, Inc. v. Transport

Workers Union, 451 U.S. 77, 93–94 (1981).12 “The presumption that a remedy was

deliberately omitted from a statute is strongest when Congress has enacted a

comprehensive legislative scheme including an integrated system of procedures for

enforcement.” Id. 97.13 No reference to a “personal money judgment” appears in

§ 853 (or any other criminal forfeiture statute with the exception of 31 U.S.C.

§ 5332(b), as noted previously). The forfeiture ordered in this case against petitioner

is thus not only unauthorized by statute, but also outside both the holdings and the

rationale of all of this Court’s most pertinent cases.

12 See also Jett v. Dallas Ind. School Dist., 491 U.S. 701, 732 (1989); Middlesex County

Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 15 (1981).

13 Accord Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146–47 (1985);

Rodriguez v. Compass Shipping Co., 451 U.S. 596, 614 (1981) (“The comprehensive

character of the procedures outlined ... precludes the fashioning of an entirely new set of

remedies to deal with an aspect of a problem that Congress explicitly addressed.”).

-23-

The court below (and other Circuits) have expressed a concern not to interpret

the statutes in a way that “would permit defendants who unlawfully obtain proceeds

to dissipate those proceeds and avoid liability for their ill-gotten gains.” Banks

(Vampire Nation), 451 F.3d at 202. But the criminal sentencing laws already answer

that concern in two different ways; no extra-statutory remedy like a “money

judgment” is needed, even if such were permissible. First, the drug laws in this case

authorize a fine of up to $1 million per count under 21 U.S.C. § 841(b)(1)(C) (and even

more, under 18 U.S.C. § 3571(d), if there is that much “gross gain”) plus $250,000 per

count under § 843(a)(3) (referencing 18 U.S.C. § 3571(b)(3)). There is no need to

distort the meaning of the word “forfeiture,” obliterating the difference between a

forfeiture and a fine, to deal with the possibility of a drug dealer’s holding on to illicit

gains. In any event, no such concern has any application to petitioner’s case.

The second way in which the statute addresses the policy concerns expressed

in case law is the substitute assets provision itself. The forfeiture statute itself

provides that if property traceable to the crime is not available, the court may direct

forfeiture, upon motion of the government, of “substitute property.” See 21 U.S.C.

§ 853(p); Honeycutt, 137 S.Ct. at 1633–34. Before seeking substitute assets, however,

the government must prove that one or more of the conditions of § 853(p)(1) exists.14

14 Ordinarily, the government cannot invoke the “substitute assets” process until some

primary asset is ordered forfeited, and attempts to seize it (or to trace the property

derived from it, if the primary asset is gone) have failed. Here, the government persuaded

the district court to skip that step based on petitioner’s admission that she had spent the

paltry sums she was paid for her role on daily living expenses. Unlike in criminal

forfeiture generally, the jury has no role in the process of satisfying a forfeiture sanction

from “substitute assets.” 21 U.S.C. § 853(p)(2); Fed.R.Crim.P. 32.2(e)(3).

-24-

If a “money judgment” for a total “sum” were authorized, the substitute assets

provision in subsection (p) would be rendered “futile,” Honeycutt, 136 S.Ct. at 1633,

that is, surplusage at best.15 Like the extra-statutory “joint and several liability”

theory unanimously rejected by this Court in Honeycutt, a “personal money

judgment,” even if entered only after the threshold prerequisites for § 853(p) liability

have been established, “would allow the Government to circumvent Congress’s

carefully constructed statutory scheme, which permits forfeiture of substitute

property only when the requirements of §§ 853(p) and (a) are satisfied,” 136 S.Ct. at

1634, most notably the fundamental requirement of identifying one or more specific

items of property possessed by the defendant. See also Fed.R.Crim.P. 32.2(e)(1)(B),

(e)(2)A) (procedure to implementing § 853(p), referring to entry of order identifying

“that property”). The “money judgment” theory negates the substitute assets part of

the statute and is invalid for that reason as well.

To address the lawless but pervasive employment of “money judgments” in

defiance of the detailed and specific criminal forfeiture laws, as occurred in this case,

the petition should be granted.

15 The notion of a “money judgment” forfeiture also renders pointless – and thus conflicts

with – Congress’s enactment of the presumption in 21 U.S.C. § 853(d) that property

possessed by a drug dealer represents proceeds. See Honeycutt, 136 S.Ct. at 1633.

-25-

CONCLUSION

For the foregoing reasons, petitioner LYNETTE GREGORY prays that this

Court grant her petition for a writ of certiorari, and reverse the judgment of the

United States Court of Appeals for the Third Circuit affirming the judgment of

forfeiture that was made part of her sentence.

Respectfully submitted,

s/Peter Goldberger

PETER GOLDBERGER

Counsel of Record

ANNA M. DURBIN

Court-Appointed (CJA)

Attorneys for Petitioner

June 28, 2018.

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