*1 subject matter courts federal district America, STATES of UNITED actions forfeiture be over civil
jurisdiction Appellee, by the United they are “commenced cause “ac States,” and are 28 U.S.C. recovery or proceeding^] tion[s] ZEIGLER, Zachary Zachary aka Lon fine, or forfei any penalty, of enforcement Zeigler, Appellant. T. any Act of Con ... incurred No. 05-4001. 1355; United 28 U.S.C. gress,” cf. Drive, F.Supp. Beacon
States Appeals, of States Court (S.D.Miss.1988), without 525, 526 aff'd Eighth Circuit. (5th Cir.1989); opinion, 875 May Currency Submitted: v. United $28,4.81, F.Supp. Amount in the 18, 2006. Sept. Filed: (E.D.N.Y.1990). Congress has for authorized the forfeiture number purposely in a manner withdrawn
of assets re reporting federal
designed to avoid Act Anti-Drug Abuse See
quirements. 99-570, 1366(a), I, § Pub.L. No. Title 1986) (codified (Oct. 27,
100 Stat. 5317). Re at 31 U.S.C.
as amended merits of the claimant’s
gardless government cannot
argument money subject that the issue
prove law, federal he cannot
to forfeiture under 60(b)(4) a Rule motion.
succeed on allow us to motion does not
claimant’s underlying judgment; we are
review determining whether the dis
confined to dismissing the Rule
trict court erred Hunter,
60(b)(4)
No such error
III. stated, reasons we affirm
For the judgment.
district court’s
Ellery Grey, argued, SD, Rapid City, appellant.
Jeffrey Clapper, argued, C. Asst. U.S. (Mara Falls, Atty., Kohn, Sioux SD M. SD, Atty., Asst. Rapid City, U.S. brief), appellee. BYE, SMITH, HANSEN,
Before Judges. Circuit SMITH, Judge.
Zachary Zeigler pleaded guilty to five person’s counts of use of another Social card violation of 408(a)(7)(B). The district court1 sen- Battey, 1. The Honorable Richard H. Dakota. Judge States District for the District criminal histo- inadequacy Zeigler to
tenced ry. dated back three concurrently, count run on each convictions, felony included 6 release, supervised years of $500 Investigation the Presentence his appeals special assessment. *3 (“PSR”) Report Zeigler’s listed criminal sentence, that it is unreasonable. arguing history lapse of category as a due to the below, forth we affirm. For the reasons set sentencing, time convictions.2 At between found of- district court I. Facts four, histo- fense was with a criminal level later Zeigler applied In and I, ry resulting in category a recommended Security a Social number for his received range of zero six months. to son, Zachary Zeigler. Zeigler T. alleged However, government requested a birth presented Wyoming certificate with up- in its least 18 months’ incarceration January of a birth date as well explicitly ward motion. Without for the baptism a certificate of child when ruling government’s government in applied The he California. motion, the district found a number issued Social based history un- “completely” criminal in of these fraudulent documents the name his criminal Conse- derstated conduct.3 T. Zachary Zeigler. Zeigler repeatedly quently, Zeig- sentenced Security number used the Social obtained ler the advisory outside of under this name and birth date in several range on each to licenses, apply to obtain driver’s states concurrently, count run of to su- work, open and accounts. of bank The use release, pervised special and a assess- $500 this false number formed the basis for the ment. five of conviction in instant counts
Dakota. II. Discussion sentencing, Zeigler
Prior that his un- argues an upward departure given totality moved for based on reasonable of the facts PSR, According personation Employee between and of an or of Officer States, Zeigler following: and he served less than was convicted of the custody. year Additionally, one forgery, obtaining in when of fraudulent aid for chil- dren, the defendant was in Lawrence arrested stamps, perju- food unauthorized use of SD, County, a for misdemeanor battery, ry, misapplication of Indian tribal offense, funds, he used same fraudulent Social impersonation of an officer or Security number as the in the instant one 2004, Zeig- employee of the United States. In offense. disorderly ler convicted for conduct. The found the Court defendant's criminal history category significantly of I understat- 3. The district court's Statement of Reasons prior ed his The Court conduct. reads as follows: found a sentence outside the Court a The sentence outside the guideline range justified pursuant to 18 advisory guideline range and considered 3553(a)(1), upon U.S.C. based the nature 3553(a). the factors set forth in 18 and the circumstances the offense The defendant had a of fraudulent history and characteristics of the defendant. "lying way conduct and is a of life” for him. The Court also found the sentence Misapplication 1984 he convicted of adequate needed to afford deterrence for Reno, NV, Indian Tribal Funds and he pursuant the criminal conduct to 18 U.S.C. custody. 3553(a)(2)(B). six served months aforemen- upon Based the Court's fraudulently tioned offense involved his col- findings, the Court defendant sentenced the lecting custody Later in travel reimbursements. 24 months on each of the five counts, concurrently. the defendant was convicted of Im- all to run Zeigler and circumstances his case. for unreasonableness as measured against points 22-year out that a gap separated set forth in 18 U.S.C. his last conviction4 and his next oldest Id. at 1015-16. “To make [a] conviction. claims that the sen- determination, reasonableness we ask imposed by tence the district court is four whether the district court abused its dis- times that recommended the Guide- cretion.” Pizano, lines, represents an upward departure of (8th Cir.2005). “[A]n abuse of levels, months, 400%, nine and that (1) discretion occur when court fails significant disparity exists between the to consider a relevant factor that should actual (2) significant received weight; *4 Moreover, imposed. the sentence exceeds court gives significant weight to an im- government’s recommendation six (3) proper factor; or irrelevant a court Additionally, months. Zeigler asserts that only considers the appropriate factors but even if the district placed him in in weighing those factors commits a ‘clear VI, history criminal category his sentence ” error of judgment.’ is still twice the recommended 12 months’ Haack, (8th 403 F.3d under that calculation. (citing Kern v. Corp., TXO Prod. 738 F.2d Zeigler submits that the district court’s (8th Cir.1984)). him differently treats than simi- larly contrary situated defendants Booker, After “the sentencing court purpose of Zeigler the Guidelines. thus must first determine the appropriate urges that be guidelines sentencing range.” at 1002- Id. found requests unreasonable and that we OS. remand his case to the district court for Once determined, the applicable is resentencing. the court should then decide if a tradi- response, government points out tional appropriate is that the district court considered the Part K 4A1.3 of the Federal and/or Guidelines as well as the outlined factors Sentencing Guidelines. Those consider- 8553(a) §in in fashioning an appropriate ations ‘guidelines will result in a sen- Specifically, sentence. the district court tence.’ Once the explicit made findings inadequacy determined, the court shall then consid- Zeigler’s history, criminal justify which er all other factors set forth in sentencing Zeigler imprison- to 24 months’ to determine whether impose a sen- ment on each count concurrently. to run tence under the guidelines or a non- We review the district court’s in guidelines sentence. terpretation application of the Guide Id. 1003. lines de findings novo and its of fact for Here, there no dispute that the clear error. United States v. Mathijssen, appropriate determined the (8th Cir.2005). ‘We will Guidelines sentencing range to zero to review a district depart court’s decision to imprisonment. six months’ The district appropriate guidelines range from court then considered abuse of discretion.” United States Mashek, (8th determine whether a “sentence Cir. outside 2005). Sentences as a whole are advisory guideline range” reviewed was war- disorderly was convicted of conduct under South Dakota law. which is a class II misdemeanor significant Id: Because find weight.” understated criminal we
ranted for 3). (Statement of Reasons history. upward that variance Thereafter, the district court sentenced supported by the facts and circum- imprisonment, find- Zeigler to surrounding stances this we conclude ing history that the defendant’s criminal sentence is reasonable. his significantly understated category note that it is unclear whether We prior criminal conduct. an upward the district court de departure may be upward “[A]n parture upward or an variance. The dis ‘reliable information indi warranted when court, hearing, trict in the stat defendant’s criminal cates that the ed the 24-month sentence “constitutes substantially under-represents category an from the recom seriousness of defendant’s guideline range.” mended Sent. Tr. 26. likelihood that the defendant history or the However, court did not engage ” United, will crimes.’ commit other analysis a traditional as con Hacker, Cir. templated by “Although Haack. the dis 2006) 4A1.3(a)(l)). Al (citing U.S.S.G. erred, trict court the error was harmless.” *5 though the 24-month sentence Bear, Sitting 436 United States v. F.3d substantially greater than the adviso 929, (8th (holding 935 that the by ry range found the district Guidelines district court’s failure to consider an up court, under the circumstances of this departure analysis ward under the Haack that we find error). Zeigler was harmless “failed to Lyons, States v. 450 reasonable. United establish ultimate sentence Cir.2006). that his is un (8th 834, 836 The district F.3d i.e., the district court the court considered relevant ” factors, Moreover, nature its .... including the and circum abused discretion Id. offense, the history of the and stances the by considerations made the district defendant, characteristics of the and the court justified “could have a traditional adequate need to afford deterrence for the guidelines, under the Specifically, criminal conduct. 4A1.3(a) ....” Lyons, see USSG “lying is a way court found that of life” for at Accordingly, we affirm the defendant, citing the his numerous convic judgment of district court. the fact, behavior. In be tions fraudulent 1984, Zeigler tween 1978 and convict III. Conclusion forgery, ed following: fraudulent stated, For the reasons we affirm Zeig- children, obtaining of aid for unauthorized ler’s sentence. stamps, perjury, battery, use of food mis application funds, of Indian tribal and im HANSEN, Judge, in concurring personation or employee of an officer judgment. Further, United States. I concur in the of the court court noted that when the defendant was because to rule County, in Lawrence Dako arrested Government’s motion was ta, offense, in for misdemeanor he error, harmless I agree fraudulent used the same Social ultimate 24-month sentence is reasonable one in the number as the instant offense. given the nature and circumstances of his appropriate “These are to consider factors Zeigler’s history offenses charac- in deciding vary whether from the court, teristics guideline supra and the as discussed range, court did not ne glect clarify that should at 6. I given separately factors have been write the dif- an departures ference between from other- sentence. The Guidelines sentence in- (in applicable wise Guidelines order cludes a calculation of appropriate ad- correctly advisory visory one), to arrive at a calculated range (step Guidelines as well sentencing range) im- Guidelines and the as a determination of any depar- whether two). of a position post-Booker non-Guidelines apply tures (step Once the district to reinforce sentence. also write advisory court determines the obligation (as district court’s to rule on sentencing range by any modified de- quest ture motions in its for an accurate parture make), determination it it advisory Guidelines sentence. then considers the de- ciding whether to sentence the defendant properly quotes opinion court’s within advisory the identified three-step analysis reviewing a district range or to a non-Guidelines sentence as set out in three). Haack, (step 1003; 403 F.3d at see Haack, (8th Cir.), 403 F.3d — Ture, also United States v. 450 F.3d denied, U.S. —, cert. 126 S.Ct. (8th Cir.2006) (applying Haack meth- (2005). 4-5.) (Supra L.Ed.2d 246 at odology); Bear, Sitting United States v. performing analysis, its I re Cir.2006) (same); spectfully conclude that it conflates the Denton, difference between our review of a district (8th Cir.2006) (same). application court’s our Guidelines and review of the rea if Generally, the district court errs sonableness of its ultimate sentence. applying step the Guidelines at one or discussing Without first whether the dis requested departure fails to consider a trict properly calculated an two, step we cannot conduct a reasonable- *6 (which Guidelines sentence includes the ness review because the district court’s proper application departures step at starting critical point, correctly a deter- two), the opinion jumps right court’s to the range, may mined be analysis of whether the ultimate sentence Smith, flawed. See United States v. 450 three). (step was reasonable It further (8th Cir.2006) F.3d 862 (remanding to recognize fails the differences between resentencing where the district court departures and non-Guidelines sentences request failed to rule on the Government’s Hacker, by relying on United States v. 450 justice for an obstruction enhance- (8th Cir.2006), a ment); Mashek, 406 F.3d to conclude that non-Guidelines (“The duty 1015 to sentence reasonable under 18 imposed remand all sentences as a result 5.) at (Supra When the court of an incorrect application guide- of the issue, again does address the it independently lines exists of whether we separate inquiries by conflates the follow resulting would find the sentence reason- ing its conclusion that the district court’s able under the standard of review an- failure to address the Government’s re Booker.”). However, nounced in we have for a quest departure was harmless error doctrines, apply prudential continued to a that Zeigler with statement failed to review, to a including harmless error dis- establish his ultimate sentence was properly apply trict court’s failure to the (Id. 6.) unreasonable. at Guidelines, including departures. Sitting Bear, 935; Mashek, 436 F.3d at explained many
As we have times since Booker, Mashek, at 1017. the district court must determine properly apply a “Guidelines sentence” before failure to a downward ad- applying justment the factors to arrive at a final was not harmless to the defen- 820 Booker, of her sentence. On the Review 43 appeal
dant’s
Reasonableness
After
(2006) (“[R]ather
hand,
the
court’s
to
district
other
Houston L.Rev.
Sitting
consider an
faulty
than skipping
allegedly
over
as-
defendant,
harmless as to the
Bear was
sumptions
applications
heading
“
merely of
‘deprived
oppor-
the
who
of the
straight
to
reasonableness
sen-
tunity
upward departure
to receive an
imposed, appellate
tence
courts must first
and,
a
perhaps,
longer sentence.’” Sit-
probability
any
sort out the
error the
Bear,
(quoting
which twenty-four months at the low end of and the district court range, 400% to six departed
had downward
months, sparse with the same comments consideration of the fac-
about
tors, seriously I doubt the district court’s appellate our
decision would survived
review.
Thus, I concur in the although imposed by
because believe the sentence judge
the able district court again
I once call for this court to take a
critical look at the in our treat- disparity
ment of and downward
cases. Gary THOMPSON, Appellant,
Reverend
BI-STATE DEVELOPMENT
AGENCY, doing business Metro, Appellee.
No. 05-3714. Appeals,
United States Court of
Eighth Circuit. April
Submitted: 2006. Sept.
Filed: