UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ELY, Defendant-Appellant.
No. 06-5464
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: November 16, 2006
File Name: 06a0425p.06
Before: MARTIN and COOK, Circuit Judges; BUNNING, District Judge.*
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 05-20129—Samuel H. Mays, Jr., District Judge. Submitted: October 26, 2006.
COUNSEL
OPINION
BOYCE F. MARTIN, JR., Circuit Judge. Michael Ely was convicted by a jury of bulk cash smuggling and making a false and fictitious material statement and representation to a Customs and Border Protection officer in violation of
Ely’s conviction arose from his attempt to bring roughly $24,000 in assorted currency1 into the United States without reporting it. Ely had been working as a contractor in the Middle East, and was returning to the United States on a flight from Amsterdam to Memphis on April 2, 2005. At the Memphis airport, Ely presented his Customs Declaration to Customs and Border Protection Officer Brandon Marlier. On the Declaration, Ely had answered “no” to the question of whether or not he was carrying currency valued at over $10,000. The Declaration explains that it is legal to carry currency into the United States, but that if the traveler is carrying more than $10,000 it must be reported to Customs. It also provides a clear definition of the term “currency.”
Marlier asked Ely how much currency he was bringing into the United States, and Ely responded that he had between six and seven thousand dollars. Marlier then began a “routine bag examination,” and discovered currency inside of Ely’s luggage, mostly consisting of one-hundred dollar bills. Marlier informed Ely that it was legal to carry currency, but that it merely needed to be reported if it was over $10,000. Ely again informed Marlier that it was not over ten thousand dollars. Marlier then counted the money from his initial discovery, and found that it amounted to over $13,000. He then contacted his supervisor and two other customs agents. After a more thorough search they discovered an additional $7000 to $8000, and eventually discovered a total of $24,000 after taking Ely into custody. The following day, Ely was questioned by an Internal Revenue Service agent, and admitted that he knew he was carrying more than $10,000 and violated the requirement to report it. He claimed that he had wanted to wire the money to his wife from Kuwait, but had encountered difficulty doing so, and was thus carrying the cash with him without reporting it to keep the IRS from knowing about it.
Ely was indicted for three counts: knowingly concealing more than $10,000 on his person and attempting to transport it from overseas to the United States in violation of
II.
Pursuant to the special verdict on count 3, the district court ordered the forfeiture of the entire $24,000, which Ely argues was an excessive fine, imposed in violation of the Eight Amendment provision that “excessive fines [shall not be] imposed.” Because he failed to raise an Eighth Amendment objection in the district court, we review the excessiveness of the fine for plain error. United States v. Blackwell, 459 F.3d 739, 771 (6th Cir. 2006). “‘To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or
Ely relies largely on the Supreme Court’s decision of United States v. Bajakajian, 524 U.S. 321 (1998), in which the Court upheld a district court’s decision to limit a forfeiture for a violation of
The question before the Supreme Court in Bajakajian was limited to whether the full forfeiture under section 982(a)(1) of the amount of money the defendant was carrying was constitutional under the Excessive Fines Clause of the Eight Amendment. Id. at 337 n. 11. The Court found that the forfeiture was punishment, subject to the Excessive Fines Clause, because it was “imposed at the culmination of a criminal proceeding and require[d] conviction of an underlying felony,” and that it was not based on the judiciary’s in rem jurisdiction over the currency itself, but rather as a result of the defendant’s criminal conviction. Id. at 328-332. To qualify as an excessive fine under the Clause, the amount of the forfeiture had to be grossly disproportionate to the gravity of the criminal offense. Id. at 337. The Court stated that the defendant was merely guilty of a reporting offense, as it was permissible to transfer the money so long as it was reported and there was no connection to other illegal activities. It also looked to the Federal Sentencing Guidelines for guidance in determining the culpability associated with a violation of the reporting statute, and found it relevant that the maximum authorized fine was $5000, with a maximum sentence of six
We cannot say on appeal that the district court committed plain error by ordering forfeiture of the entire $24,000, even though Bajakajian would have supported an excessive fines argument if Ely were to have argued the issue below. Had Ely raised an excessive fines objection in the district court, he would have been entitled to an assessment of whether the forfeiture was grossly disproportionate to the gravity of his offense, in light of factors including the nature of the offense, the connection to other illegal activities, the source and likely use of the funds, whether his conduct fit into the class the statute was designed to cover (money launderers, tax evaders, terrorism financiers, or drug traffickers), and the potential fine under the advisory guideline range. United States v. Carpenter, 317 F.3d 618, 627-628 (6th Cir. 2003), vacated on other grounds, reinstated 360 F.3d 591 (6th Cir. 2004).
Even if the district court erred in not analyzing whether the forfeiture was an excessive fine, it is neither obvious nor clear on appeal that the amount here was grossly disproportionate to Ely’s culpability in light of the factors that are relevant to examining the excessiveness of a fine. Specifically, the amount of cash subject to forfeiture is less than one-tenth of the amount at stake in Bajakajian. Further, Ely’s potential fine under the now-advisory Sentencing Guidelines was $30,000, as compared to $5000 in Bajakajian. Thus, Ely’s forfeiture is within his potential fine range under the Guidelines, whereas the defendant in Bajakajian stood to forfeit more than seventy times the amount of his maximum fine under the Guidelines. The forfeiture amount here is also well within the statutory maximum fine of $250,000 — another of the several relevant factors that can be considered in assessing gravity of the offense. Carpenter, 317 F.3d at 627. (“While the [Bajakajian] Court noted that authorized penalties are relevant, they are but one of several factors to consider in assessing the overall gravity of the offense.“). Although Ely may have benefitted from a more fact-specific inquiry had he raised this issue in the district court, we cannot say at this juncture that a plain error was made in this case based on our rough comparison between the facts here and those in Bajakajian.
III.
Ely also appeals his sentence, claiming that the district court did not properly balance relevant factors in determining the sentence, resulting in an unreasonable sentence under
We review Ely’s sentence for reasonableness. Booker, 543 U.S. at 260-61. While a sentence that is within the advisory guideline range, like Ely’s, is entitled to a presumption of reasonableness, the record must still reflect that the district court considered the relevant sentencing factors provided in
Ely concedes that the district court considered the relevant factors from
Given the thoroughness of the district court’s consideration of the sentencing factors, Ely does not identify any argument that he raised and the district court failed to address, but instead asks us to balance the factors differently than the district court did. This is simply beyond the scope of our appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the first instance we would have imposed the same sentence. Because the district court considered all the relevant sentencing factors, and imposed a sentence of a reasonable length, we affirm the sentence here.
IV.
For the reasons discussed above, we affirm Ely’s sentence and the full forfeiture of the currency he failed to report.