Jamie Smith pled guilty to conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and to possession with intent to distribute five grams or more of pure methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court 2 sentenced *825 Smith to 168 months’ imprisonment, and ordered forfeiture of $10,000 pursuant to 21 U.S.C. § 853. Smith appeals, contending that the court erred in applying a two-level specific offense characteristic for possession of a firearm, pursuant to USSG § 2Dl.l(b)(l). He also argues that his sentence is unreasonable, and that the forfeiture order is unauthorized by statute and unconstitutional.' We affirm.
I.
In June 2009, federal law enforcement officers executed a search warrant at Smith’s residence and found approximately 45.5 grams of methamphetamine mixture, a digital scale, and drug packaging materials in the “southwest bedroom/den/TV room.” Approximately fifteen feet from the methamphetamine, the officers found an unloaded Colt Sporter semi-automatic assault rifle. The rifle was located in a partially open gun case that extended from the open door of a closet in Smith’s living room. The closet also contained firearm cleaning materials, targets, two empty magazines, and ammunition.
A grand jury indicted Smith on drug trafficking charges. Pursuant to 21 U.S.C. § 853, the indictment sought criminal forfeiture of proceeds obtained from the offenses, “including but not limited to” $1,000,000 in United States currency or substitute assets. The court accepted Smith’s guilty plea on March 10, 2010. On June 24, 2010, the government requested a preliminary forfeiture order, seeking a $10,000 money judgment against Smith. The court granted the order on June 30, 2010. Smith filed a motion challenging the forfeiture, and at a sentencing hearing, the court heard arguments from both Smith and the government as to the propriety of the criminal forfeiture order. At the hearing in August 2010, the court determined that the preliminary order of forfeiture was proper, and on September 9, 2010, the court entered a final order of forfeiture.
Smith also objected to the application of a two-level specific offense characteristic under USSG § 2D1.1(b)(1) for possession of a firearm. The district court found that the adjustment was appropriate, and determined that Smith’s guideline range was 135 to 168 months’ imprisonment. The court imposed a sentence of 168 months’ imprisonment.
II.
In considering Smith’s challenge to the calculation of his advisory guideline range, we review the district court’s factual determinations for clear error and its application of the sentencing guidelines
de novo. United, States v. San-Miguel,
Smith does not dispute that he possessed a rifle that was found at his residence in proximity to methamphetamine. He claims that because he used the gun solely for target practice, there is no relationship between the rifle and his offenses. But the use or intended use of firearms for one purpose, even if lawful, does not preclude a finding that the defendant used the firearm for the prohibited purpose of facilitating a drug trade.
Brown v. United States,
Smith also challenges the substantive reasonableness of his sentence. We review the reasonableness of the district court’s sentence under a deferential abuse-of-discretion standard.
Gall v. United States,
We reject Smith’s claims that the district court erred by ignoring his minimal criminal history and “limited” role in the conspiracy, and that the court gave undue weight to the quantity of drugs involved in his offenses. The sentencing guidelines account for Smith’s minimal criminal history.
See
USSG § 4A1.1;
United States v. Wilcox,
The district court considered several relevant aggravating factors: that Smith had a history of alcohol and substance abuse, disobeyed court orders by using drugs while on pretrial release, failed to pay his child support, trafficked a large quantity of drugs, and testified untruthfully at the sentencing hearing. The court’s explanation satisfies us that the presumptively reasonable sentence is indeed substantively reasonable.
III.
Smith asserts that the court’s criminal forfeiture order in the form of a money judgment should be vacated, because a money judgment is not authorized by statute. He also contends that the order violates his procedural due process rights, his substantive due process rights, the Double Jeopardy Clause, and the Eighth Amendment prohibition against excessive fines.
3
“We review claims of constitutional error and issues of statutory construction
de novo.” Royal v. Kautzky,
A.
21 U.S.C. § 853 provides that a defendant convicted of a drug trafficking offense “shall forfeit to the United States ... any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” Id. § 853(a). Property subject to forfeiture “includes — (1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible per *827 sonal property, including rights, privileges, interests, claims, and securities.” Id. § 853(b). Section 853(p) provides that “the court shall order the forfeiture of any other property of the defendant,” if “as a result of any act or omission of the defendant,” the property subject to forfeiture:
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a third party;
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or
(E) has been commingled with other property which cannot be divided without difficulty.
Id. § 853(p)(l).
The district court ordered forfeiture of $10,000 in drug proceeds, but these funds’ could not be located. Smith had insufficient assets at the time of sentencing for the court to order forfeiture of substitute assets that could be seized immediately. Therefore, the court entered a money judgment for $10,000, and the question arises whether such a judgment is authorized by the provision of § 853(p) for forfeiture of “any other property of the defendant.” This court has not addressed the point directly.
Cf. United States v. Gregoire,
At least five circuits have held that § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing.
See United States v. Awad,
B.
Procedural due process requires that an individual receive adequate notice and procedures to contest the deprivation of property rights.
United States v. Ritchie Special Credit Invs., Ltd.,
Smith next contends that the money judgment violates his substantive due process rights, because there is no nexus between money that he may obtain in the future and his offenses. The only support Smith cites for his purported nexus requirement is Federal Rule of Criminal Procedure 32.2(b)(1)(A). Although Rule 32.2(b)(1)(A) requires a nexus between
specific property
sought
for
forfeiture and the offense, it states that if the government seeks a money judgment, “the court must determine the amount of money that the defendant will be ordered to pay.” Rule 32.2 also contains provisions for ordering forfeiture of substitute property. Fed.R.Crim.P. 32.2(b)(2)(A), (e)(1)(B). A constitutional nexus requirement for
all
property subject to forfeiture would render the forfeiture of substitute assets, by definition, unconstitutional. The statute is rationally related to legitimate “punitive, remedial, and corrective purposes,” and it is therefore consistent with the Due Process Clause.
See United States v. Shepherd,
Smith also asserts a violation
of
double jeopardy. “The Double Jeopardy Clause protects against efforts to impose punishment for the same offense in two or more separate proceedings; double jeopardy concerns are not implicated, however, where multiple punishments are imposed for the same offense in a single proceeding, so long as Congress intended that result.”
United States v. Smith,
Smith finally avers that the money judgment is an excessive fine because he is indigent. A punitive forfeiture violates the Excessive Fines Clause if “the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.”
United States v. Bajakajian,
The judgment of the district court is affirmed.