United States v. Silvano Salinas
65 F.3d 551
6th Cir.
1995
Check Treatment

*1 Cir.1991). court, however, denying evidentiary the motion without an Our adjust hearing. rejected a “relevant conduct” has now guideline provision restricts where a

ment specific conduct. United Wright, 12 F.3d Cir. apply to guidelines Because evad specifically refer to

Mr. offense Green’s Wright requirements,2 indi

ing reporting not have court should

cates that the district offense increase

made the one-level 2S1.3.

level America, UNITED STATES of

Ill Plaintiff-Appellee, If Mr. Green had been sentenced increase the one-level the Fifth Mr. deemed erroneous. would not been SALINAS, Defendant-Appellant. lawyer prescience to fore lacked Green’s rejection of the Fifth Circuit tell this circuit’s No. 95-1450. hardly means that Mr. approach, but Appeals, assistance of United States Court was denied effective Green Washington, Sixth Circuit. counsel. Strickland 80 L.Ed.2d Argued Aug. 1995. prevail on an ineffective assis teaches that to claim, must the claimant tance of counsel Sept. Decided egre lawyer made errors so “show that his functioning as simply was not gious that he guaranteed the Sixth Amend

the counsel Medved,

ment.” United lawyer Mr. Green’s Medved, Here, error.

made no such lawyers way ... of ordi is no

“[t]here training skill in the criminal law

nary that counsel’s con possibly conclude ” ‘competent.’ ... was not duct above, moreover, Mr. noted

As sentence received a 420-month

Green The 57-month sentence

cocaine case. being served complains here is

which

concurrently 420-month sentence. sentence had been the

Even if the shorter of counsel— of ineffective assistance

result lack of effective assis

which it was not —the length have had no effect on the

tance would spend must time Mr. Green

Prejudice element of an inef is an essential teaches, claim, Strickland

fective assistance appear Green could it does not that Mr. For this any showing prejudice.

make too, was correct the district court

reason tions; 2S1.3, Report- Structuring to Evade Transactions U.S.S.G. as in effect 2. The full tide of May sentenc- Requirements." the date of Mr. Green’s Monetaiy Report ing, Transac- was "Failure *2 marijuana in violation of

intent to distribute 841 and 846. He filed a motion indictment, quash to that be- registered cause a 1971 Pontiac GTO previously him had been forfeited to titled to government, the indictment violated his protection against jeop- constitutional ardy. was forfeited as The vehicle 881(a)(6). proceeds pursuant to 21 U.S.C. 1992, September pursuant It was seized in to a warrant. The forfeiture action was initi- January ated in declaration Al- April was entered in published though notices of seizure were attorney, mailed to and his no one Salinas appeared to contest the forfeiture. court denied the motion to The district quash, holding drug pro- punishment. appeals, ceeds is not Salinas against multiple arguing protection that the punishments set forth United States v. Halper, 490 U.S. briefed), Hieronymus (argued and John 0. (1989),prohibits prosecution L.Ed.2d 487 his Redford, Dettmer, H. James R. Michael U.S. drug charge. on the Attorney Attorney, of the Office Michigan, Rapids, Western District of Grand II. MI, plaintiff-appellee. for briefed), Craig (argued A. Frederick prohib The Double MI, defendant-appellant. Rapids, Grand “punishment” its more than one for the same Pearce, offense. North Carolina v. 395 U.S. KENNEDY, WELLFORD, Before: 711, 717, 2072, 2076, 23 L.Ed.2d 656 S.Ct. SILER, Judges. Circuit overruled on other Alabama Smith, SILER, J., opinion delivered the of the (1989). prosecu The criminal court, KENNEDY, J., joined. in which facing clearly subjects him tion 554), (p. J. delivered a punishment. prior if the civil for separate concurring opinion. proceeding, predicated feiture which was SILER, Judge. charged in the same offense as indictment, constituted a Defendant, Salinas, appeals pending Clause will bar the quash district court’s denial of his motion to See United States v. against jeopar- the indictment him on double denied, Cir.), dy grounds. He asserts that the indictment 130 L.Ed.2d 490 against conspiracy possess him for (1994). marijuana intent to distribute should have been dismissed of an earlier adminis- did not Because Salinas forfei trative forfeiture of a vehicle to ture, however, government argues him. Because the earlier forfeiture did not was never “punishment,” we affirm. therefore, jeopardy did not attach.

I. Cir.), cert. (1994). Although On November Salinas was indict- charges conspiracy possess clearly ed on with Torres court held that a defendant money subject Eighth Amendment’s Ex- limitations not make a claim who did party to the became a cessive Fines Clause.” Id. forfeiture never to civil (citation omitted). forfeiture, the court also noted at 2812 had an interest clear that Torres never Relying “punishment” on the lan *3 1466. Unlike cash. Id. at Austin, guage argues of that forfei that he owned the the informed punish ture of his automobile constitutes the car was question, car in and disagree. prop ment. We The vehicle was argues that in his name. Salinas and titled erly drug proceeds,1 characterized as and its forfeiture was sent notice of the because “punishment.” Fifth forfeiture The him, directly it indicates the Austin, interpreting distinguished probably belonged to knew that the vehicle conveyances acknowledge other circuits him. We estate, to, real which have no correlation or rationale to uncon- applied the Torres have with, proportionality upon the harm inflicted involving titled tested forfeitures society underly the the See, e.g., braidings as or automobiles. such act, drug pro criminal and forfeiture of Cretacci, 62 F.3d 309- ceeds, which, nature, very by their “will al (9th Cir.1995); Penny, ways directly proportional to the amount be See also drugs of sold.” 18 F.3d at 300. Til Ursery, 59 F.3d United that, Austin, ley points out in the Su (6th Cir.1995) (holding that Torres “stands preme distinguished of Court civil forfeitures jeopardy does not proposition property proportionately related to the of party forfeiture when the attach to a civil conveyances fense from forfeitures of jeopardy was not a double which, property, real because of the dramatic proceeding”). need not the forfeiture We value, in their bear no relation to variations however, argument, this as our hold- address Austin, (citing underlying the ing today that forfeiture of Salinas’ car as — at -, 2811- 113 S.Ct. at 881(a)(6) § drug proceeds under 21 U.S.C. Lot Emerald Cut See also One Stones precludes a punishment not constitute did States, Ring v. & One United finding jeopardy proceed- in the forfeiture of (1972) ings. goods (upholding forfeiture of involved States, In Austin v. United of customs violations as “a reasonable form L.Ed.2d liquidated damages[,]” punish rather than addressed whether forfeitures under Court ment). 881(a)(4) conveyances, §§ of or means failed to make this drugs The Ninth Circuit has transporting such as automobiles —and distinction, (a)(7) Supreme holding instead that the transac estate used —real Halper ra punishment the Ex Court Austin abandoned tions —constituted under that, categori relationship test in favor of a The held tional cessive Fines Clause. Court may cal rule that all civil forfeitures although “forfeiture of contraband itself remedial,]” purposes. punishment id. double be characterized as in United at under subsec See United States (a)(4) (a)(7) 1210, 1220 ‘payment “constitutes tions Cir.1994), reh’g granted, sovereign to a as for some of (1995).2 fense,’ such, subject to the ... as is compelled by Supreme proceeding proach Court’s was based on the is also 1. The forfeiture proceeds Department Revenue Mon recent decision in that the car was of of Ranch, drug money, only [— -] Salinas’ source tana v. Kurth [sic, 767] L.Ed.2d 1937] [128 of income. Since Salinas failed should be Ranch, (1994).” any way, estopped holding from now in Kurth he is The Court’s categorical challenging under which the vehicle of a was not an forfeitures, but, rather, an approach was forfeited. recognition long-standing of the taxes, to the adherence punishing nature of opinion May and deterrent panel its 1995 to 2. The amended proportionality the tax to the categorical ap “adoption and the lack add that of this ap- prosecutor seeks a forfeiture the Ninth Circuit’s When followed We forfeitures, only 881(a)(6), § under respect possible avoid under proach with 881(a)(7), 881(a)(4) of real used § jeopardy problems 21 U.S.C. under to facilitate a violation (a)(7). to be used or intended when punishable by more § that is of 21 U.S.C. drug proceeds seeks forfeiture Ursery, 59 F.3d year one than 881(a)(6), care that it offers we must take pro- The forfeiture 572-73. support proceeds theory. Be evidence to a ceeds, however, different. Not are is pro limits forfeiture to “all cause inherently proportional to drug exchange, ceeds traceable to” activity, illegal damages caused come with some government must forward above, acquires but also one never stated directly purchase that can link the evidence *4 right proceeds, which include not property prior drug of the res with transactions. property with the cash but also secured $67,220.00 United States illegal activity. proceeds of We therefore (6th Cir.1992) adopt Tilley the view government (holding that must show “a rea is re- is not but belief, ground supported sonable more medial nature. suspicion, than mere that there is substan [property] tial connection between the seized transaction”). my illegal drug In and an Judge, concurring. view, merely proving that the res is owned agree majority that defendant I drug not dealer is sufficient. United States punished for- was not when his vehicle was Currency, drug proceeds. feited to the (9th Cir.1994), reh’g 1221 n. 11 F.3d agree I that defendant was granted, placed not twice for the same (1995). By distinguishing drug separately, I write drug proceeds and used to facilitate practical implications of our make clear the trafficking, protection of we render the decision. Jeopardy contingent on the Double agree I that we should follow United Nevertheless, Tilley I pleading. artful find (5th Cir.), authority persuasive in the instant case. government sought Because the Tilley presents but sev- proceeds theory on a and Salmas did not problems application. gov- eral Since the contest whether trace ernment based the forfeiture in this case on a transaction, agree car to a I that he vehicle punished twice for the same offense. money, Tilley indicates that defen- I, therefore, CONCUR. protected by dant is not the Double Ursery, In Clause. Cir.1995), however, we held that used to facilitate trade under meaning within Therefore, if Clause. sought had forfeiture of Salinas’ grounds

automobile on the that he used the carry

car to narcotics from Texas to Michi-

gan, Ursery might have this criminal barred Thus, Ursery after and our de- today, jeopardy protection

cision will depend govern-

often on which justify

ment utilizes to the civil forfeiture. U.S. at -, public.

harm to the or the - 114 S.Ct. at 1948.