United States v. One Parcel Property Located at 427 & 429 Hall Street , 74 F.3d 1165 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-6643.
UNITED STATES of America, Plaintiff-Appellee,
v.
ONE PARCEL PROPERTY LOCATED AT 427 AND 429 HALL STREET,
MONTGOMERY, MONTGOMERY COUNTY, ALABAMA, WITH ALL APPURTENANCES AND
IMPROVEMENTS THEREON a/k/a G & G Grocery, Defendant,
George Thomas Jenkins, Claimant-Appellant,
Fleet Finance, Inc., Claimant.
Feb. 14, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-91-A-1302-N), W. Harold Albritton,
III, Judge.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON,
Senior Circuit Judge.
TJOFLAT, Chief Judge.
I.
The defendant in this in rem proceeding is a parcel of real
property located on Hall Street in Montgomery, Alabama. It is
about 500 feet from the outdoor basketball courts of Houston Hills
Junior High School and one fifth of a mile from the front door of
the school itself. The entire property, which is valued at
approximately $65,000, is owned by George Jenkins. There is one
building on the property. In 1991, Jenkins ran a grocery store
from one portion of the building and rented out the other portion.
In August 1991, an agent of the local district attorney's drug
task force received a telephone call from a confidential informant
who notified him that drugs were being sold at the grocery store.
The task force then conducted two "controlled buys" using the
informant. After each controlled buy, the informant produced a
clear one-inch square bag, which contained a white, powder-like
substance, and stated that the individual who had sold him the bag
had pulled it from his pants pocket. Each time, the agents
field-tested the substance, identified it as one half of a gram of
cocaine, and destroyed it.
On the strength of the information acquired during the two
controlled buys, agents secured a warrant that authorized a search
of the grocery store and any vehicle on the premises. The search
was conducted on August 30. When they entered the store, the
agents found George Jenkins standing behind a counter and cash
register. In his front right pants pocket, the agents found
forty-five dollars and seven plastic one-inch square bags
containing a white, powder-like substance. They also found $800 in
his wallet, as well as $108 and some .38 caliber bullets on a shelf
behind the counter. In a Chevrolet Blazer owned by Jenkins and
parked on the premises, the agents found three hand-rolled
cigarettes and a .38 caliber pistol. Subsequent laboratory tests
indicated that the bags taken from Jenkins's pocket contained a
total of three grams of cocaine and that the cigarettes contained
six tenths of a gram of marijuana.
In September 1992, Jenkins pled guilty in state court to the
unlawful possession of cocaine, a felony under Alabama law, which
carries a maximum sentence of ten years in prison and a maximum
fine of $5000. A charge of unlawful possession of marijuana was
dropped as part of the plea agreement.
In October 1991, the United States filed this civil action in
rem for forfeiture of the entire parcel of real property, pursuant
to section 511(a)(7) of the Controlled Substances Act, Pub.L. No.
91-513, Title II, 84 Stat. 1236, 1276 (1970), 21 U.S.C. 881(a)(7)
(1994), which authorizes the forfeiture of real property "which is
used, or intended to be used, in any manner or part, to commit, or
to facilitate the commission of a violation of [the Controlled
Substances Act] punishable by more than one year's
imprisonment...."1 In December 1991, Jenkins filed an answer in
the forfeiture proceeding, as claimant to the property. After a
bench trial, the district court ordered the property forfeited to
the government. See United States v. One Parcel of Property
Located at 427 & 429 Hall St., 842 F. Supp. 1421 (M.D.Ala.1994).
The court subsequently denied Jenkins's motion for a new trial.
See United States v. One Parcel of Property Located at 427 & 429
Hall St., 853 F. Supp. 1389 (M.D.Ala.1994).
Jenkins appeals, contending that: (1) the underlying offense
was not "punishable by more than one year's imprisonment," as
required by statute, and (2) the forfeiture constitutes an
"excessive fine" in violation of the Eighth Amendment.2
II.
Generally speaking, civil forfeiture is the forfeiture of
1
The statute refers to a "violation of this title" and the
code to a "violation of this subchapter," both of which are
references to title II of the Comprehensive Drug Abuse Prevention
and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236. Title
II of that Act is the Controlled Substances Act. See Controlled
Substances Act § 100, 84 Stat. at 1444, 21 U.S.C. § 801 note
(1994).
2
See U.S. Const. amend. VIII ("Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.").
real or personal property to the state after that property is shown
to be linked to a violation of the state's laws. As such, it has
a long and varied history. The specific provision before the court
today retains some of the characteristics of its antecedents—and
those similarities will dispose of Jenkins's first argument. In
one significant way, however, the provision departs radically from
its precedents. The nature of this departure leads us to disagree
with our sister circuit courts about the appropriate analysis of
civil forfeiture under the Excessive Fines Clause, and it guides
our disposition of Jenkins's second claim.
A.
Some trace the roots of civil forfeiture to the Old Testament.
See Exodus 21:28 (King James) ("If an ox gore a man or a woman,
that they die: then the ox shall be surely stoned, and his flesh
shall not be eaten; but the owner of the ox shall be quit.")3
Blackstone, for example, noted the scriptural origin of one
particular species of common law forfeiture—the deodand, according
to which chattel was forfeit if it caused the death of a subject.
See 1 William Blackstone, Commentaries *301. 4 In addition to the
deodand, however, English common law recognized several other forms
of forfeiture. See, e.g., 2 William Blackstone, Commentaries *267-
3
When used as an adjective, "quit" means "released from
obligation, charge, or penalty." Webster's Third New
International Dictionary 1867 (1993). Thus, the ox responsible
for the goring was forfeit, and its owner subject to no (other)
penalty.
4
See also 1 Bouvier's Law Dictionary 844 (8th ed. 1914)
(deodand was personal chattel "forfeited to the king to be
distributed in alms by the high almoner "for the appeasing,' says
Coke, "of God's wrath.' "). The word comes from the Latin deo
dandum, "a thing that must be offered to God." Id.
287 (eight ways in which real property could be forfeit, including
crime of the owner and bankruptcy). At the time our Bill of Rights
was ratified, the English common law recognized three kinds of
forfeiture: deodand, forfeiture upon conviction for a felony or
treason, and "statutory forfeiture," pursuant to which an object
would be forfeited if it were used in violation of the customs and
revenue laws, which included, for example, the Navigation Acts of
1660. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,
680-83, 94 S. Ct. 2080, 2090-91, 40 L. Ed. 2d 452 (1974); Austin v.
United States, --- U.S. ----, ----, 113 S. Ct. 2801, 2897, 125
L. Ed. 2d 488 (1993).
Of these three, only statutory forfeiture became part of the
American legal tradition. Austin, --- U.S. at ----, 113 S. Ct. at
2807. Indeed, during the colonial period, while adoption and use
of forfeiture varied from colony to colony, every colony enacted
some form of statutory forfeiture. Matthew Q. Giffuni, Civil
Forfeiture and the Excessive Fines Clause Following Austin v.
United States, 31 Crim.L.Bull. 502, 506 (1995). So, eventually,
did the new federal government. In 1789, the First Congress
authorized forfeiture of ships (and their cargoes) that were
involved in customs offenses. Act of July 31, 1789, § 12, 1 Stat.
39; see also Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 1 Stat. 157,
161, 163; Austin, --- U.S. at ----, 113 S. Ct. at 2707. In the
years since, Congress has authorized forfeiture to aid enforcement
of many statutory schemes, including the navigation laws, food and
drug laws, copyright laws, and antitrust laws.
In 1970, Congress enacted the Controlled Substances Act as
part of the Comprehensive Drug Abuse Prevention and Control Act and
in it authorized civil forfeiture. See Controlled Substances Act
§ 511, 84 Stat. at 1276, 21 U.S.C. § 881. In 1984, Congress added
the provision under which the Government proceeded in this case.
See Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, Title
II, Chap. III, § 306, 98 Stat. 2040, 2050 (amending Controlled
Substances Act § 511(a), 21 U.S.C. § 881(a)). As noted, that
section authorizes the forfeiture of real property used, or
intended to be used, to commit, or to facilitate the commission of,
a violation of the Controlled Substances Act punishable by more
than one year of imprisonment.
Forfeiture pursuant to 21 U.S.C. § 881(a)(7) retains many
characteristics of its ancestors. Notably, "[a] civil forfeiture
action is not an action in personam against the claimant of the
property; rather, it is an action in rem against the property
itself." United States v. Four Parcels of Real Property, 941 F.2d
1428, 1435 (11th Cir.1991) (en banc). The property, and not its
owner, is "guilty." This is traditional in rem forfeiture. Among
its implications: the acquittal, or even non-prosecution, of the
owner on criminal charges is irrelevant as to the forfeitability of
the property. See The Palmyra, 25 U.S. (12 Wheat.) 1, 15, 6 L. Ed.
531 (1827) ("[T]he proceeding in rem stands independent of, and
wholly unaffected by any criminal proceeding in person."); The
Brig Malek Adhel, 43 U.S. (2 How.) 210, 233, 11 L. Ed. 239 (1844)
("The vessel which commits the aggression is treated as the
offender, as the guilty instrument or thing to which the forfeiture
attaches, without any reference whatsoever to the character or
conduct of the owner."). A related implication: the government
bears a lower burden of proof. To justify a forfeiture under
section 881(a)(7), the government must merely establish that it had
"probable cause" to believe that a crime punishable by a year or
more has occurred. United States v. Four Parcels of Real Property,
941 F.2d at 1438.
At this juncture, Jenkins's first argument can be disposed of
briefly. The Government proceeded in rem against property linked
to a violation of the Controlled Substances Act. Jenkins claims
that forfeiture is improper because the "underlying offense" in
question is possession of three grams of cocaine (i.e., the cocaine
found on his person on August 30), which is a misdemeanor
punishable by "a term of imprisonment of not more than 1 year."
Controlled Substances Act § 404(a), 84 Stat. at 1264, 21 U.S.C. §
844(a) (1994). To be sure, the forfeiture provision requires that
the underlying drug offense be one punishable by more than one
year's imprisonment. But Jenkins has misidentified the underlying
offense. The government premised the forfeiture on possession
with
the intent to distribute, aggravated in this instance by the
property's proximity to a junior high school. The minimum
5
imprisonment for this felony is fifteen months in prison. That
Jenkins was only convicted of simple possession, and that the
government might not have been able to satisfy the high burden of
criminal prosecution with respect to intent to distribute,6 are
5
See infra part II.B.
6
Jenkins argues that the field testing (rather than
laboratory testing) and subsequent destruction of the cocaine
purchased during the controlled buys mean the government has no
simply irrelevant. In this respect, the theory of civil forfeiture
has changed very little.
B.
Civil forfeiture under the Controlled Substances Act, however,
diverges from its roots in a very fundamental way. Specifically,
Congress has provided an "innocent owner" defense: "[N]o property
shall be forfeited under this paragraph, to the extent of an
interest of an owner, by reason of any act or omission established
by that owner to have been committed or omitted without the
knowledge or consent of that owner." 21 U.S.C. § 881(a)(7). There
was no innocent-owner defense at common law, although there was
some discretion to mitigate based on the moral innocence of the
party incurring the penalty. See Calero-Toledo, 416 U.S. at 683 n.
27, 94 S. Ct. at 2091 n. 27. The innocent-owner defense included in
section 881(a)(7) strongly suggests that Congress intended to
punish persons intentionally involved in drug trafficking. See
Austin, --- U.S. at ---- - ----, 113 S. Ct. at 2810-11 ("These
exemptions serve to focus the provisions on the culpability of the
owner in a way that makes them look more like punishment, not
less."). The legislative history of the section confirms the
punitive nature of the provisions. Id. at ---- - ----, 113 S. Ct.
at 2811, citing S.Rep. No. 98-225, 98th Cong., 2d Sess. 191 (1983).
This brings us to Jenkins's second argument, that the forfeiture of
evidence admissible in a criminal trial pertaining to intent to
distribute. We make no comment on the merits of this argument.
We simply note that the dispositive question is whether the
government had "probable cause" to believe the crime occurred,
not whether it could prove Jenkins's guilt beyond a reasonable
doubt in a criminal trial.
his real property constitutes an "excessive fine" in violation of
the Eighth Amendment.
It has been established that the Excessive Fines Clause of
the Eighth Amendment applies to in rem civil forfeiture proceedings
under 21 U.S.C. § 881(a)(7). See Austin, --- U.S. at ----, 113
S. Ct. at 2812. The Austin Court declined, however, to articulate
a test for determining whether a particular forfeiture violates the
Excessive Fines Clause. See id. ("Prudence dictates that we allow
the lower courts to consider that question in the first instance.")
In his concurring opinion, Justice Scalia contended that the
appropriate test is an "instrumentality" test that focuses on "the
relationship of the property to the offense" or, in other words, a
test that asks, "Was [this relationship] close enough to render the
property, under traditional standards, "guilty' and hence
forfeitable?" Id. at ----, 113 S.Ct. at 2815 (Scalia, J.,
concurring in part and concurring in the judgment). The majority
simply responded that it would "not rule out the possibility that
the connection between the property and the offense may be relevant
... in determining whether [a] forfeiture ... [is] excessive." Id.
at ---- n. 15, 113 S. Ct. at 2812 n. 15.
The tests laid out by lower courts since Austin generally
fall into two categories. Some have followed Justice Scalia's
suggestion and applied an instrumentality test, focusing on the use
of the property in the commission of the illegal act, asserting
that this test is the only way to preserve the "guilty property
fiction" of traditional in rem forfeiture. See, e.g., United
States v. Chandler, 36 F.3d 358 (4th Cir.1994), cert. denied, ---
U.S. ----, 115 S. Ct. 1792, 131 L. Ed. 2d 721 (1995). A few have
applied a proportionality test, the core of which is a comparison
of the severity of the forfeiture with the seriousness of the
crime. See, e.g., United States v. One Parcel of Real Property
Located at 461 Shelby County Rd. 361, 857 F. Supp. 935
(N.D.Ala.1994). Many, including the district court in this case,
have combined the two approaches in some fashion. See, e.g.,
United States v. Premises Known as Rural Route No. 1 Box 224, 14
F.3d 864 (3d Cir.1994); United States v. Real Property Located in
El Dorado County at 6380 Little Canyon Road, 59 F.3d 974 (9th
Cir.1995). See generally Sarah N. Welling & Medrith Lee Hager,
Defining Excessiveness: Applying the Eighth Amendment to Civil
Forfeiture After Austin v. United States, 83 Ky.L.J. 835 (1994-
1995).
Courts and commentators rejecting a proportionality test have
relied heavily on what they perceive to be a retreat from
proportionality review in Cruel and Unusual Punishments Clause
jurisprudence. 7 See, e.g., United States v. Chandler, 36 F.3d at
365. Reliance on the Cruel and Unusual Punishments Clause cases
for an interpretation of the Excessive Fines Clause is, however,
inappropriate.8 The clauses are distinct. Alexander v. United
7
Proportionality review under the Cruel and Unusual
Punishments Clause was laid out by a five-justice majority of the
Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77
L. Ed. 2d 637 (1983). Many contend that eight years later, in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d
836 (1991), the Court "retreated" from its earlier holding. We
make no comment, of course, on the dispute; the Cruel and
Unusual Punishments Clause is not before us.
8
The Excessive Fines Clause has received little attention
from the Supreme Court. The first decision interpreting the
States, --- U.S. ----, ----, 113 S. Ct. 2766, 2775, 125 L. Ed. 2d 441
(1993). We conclude that the appropriate inquiry with respect to
the Excessive Fines Clause is, and is only, a proportionality test.
We rely on: (1) the reasoning used by the Austin Court in its
conclusion that the clause applies; (2) the plain meaning of the
clause; and (3) the history of the clause.
First, the Austin Court reasoned that the Excessive Fines
Clause applies because forfeiture under section 881(a)(7)
"constitutes "payment to a sovereign as punishment for some
offense.' " --- U.S. at ----, 113 S. Ct. at 2812,
quoting Browning-
Ferris Indus. v. Kelco Disposal Inc., 492 U.S. 257, 265, 109 S. Ct.
2909, 2915, 106 L. Ed. 2d 219 (1989). Specifically, forfeiture is
tied to "the commission of drug offenses." Id. at ----, 113 S.Ct.
at 2811. And the inclusion of an innocent-owner defense reveals
Congress's intent "to punish only those [i.e., those owners ]
involved in drug trafficking." Id. In other words, section
881(a)(7) is designed to, and does, punish individuals involved in
drug trafficking. It is primarily for this reason that the
instrumentality test is inappropriate. When the Eighth Amendment's
Excessive Fines Clause, which constrains the power of the sovereign
to punish, comes in to play, it necessarily protects the person
punished, i.e. the owner.9
provision was handed down in 1989. See Browning-Ferris Indus. v.
Kelco Disposal Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d
219 (1989). The Framers, too, paid much less attention to it
than they did to other clauses.
9
The instrumentality test adopted in part by the district
court is required by the statute itself, but not by the Eighth
Amendment. Section 881(a)(7) authorizes forfeiture of real
property "which is used, or intended to be used, in any manner or
Second, the Excessive Fines Clause on its face prohibits fines
which are "excessive"—i.e. fines that are (in amount) just too
much. And because the clause protects the individual punished,
this turn of phrase necessarily implies a comparison of the amount
of the fine with the acts of the individual. This is simply a
logical reading of the provision in question: excessive fines are
not to be imposed. See Harmelin v. Michigan, 501 U.S. 957, 967,
111 S. Ct. 2680, 2687, 115 L. Ed. 2d 836 (1991) (Scalia, J. and
Rehnquist, C.J.) (rejecting a proportionality review under the
Cruel and Unusual Punishments clause in part because "the drafters
of the [English] Declaration of Rights did not explicitly prohibit
"disproportionate' or "excessive' punishments"); see also id. at
1009, 111 S.Ct. at 2709 (White, Blackmun, and Stevens, JJ.,
dissenting) ("The language of the Amendment does not refer to
proportionality in so many words, but it does forbid "excessive'
fines, a restraint that suggests that a determination of
excessiveness should be based at least in part on whether the fine
imposed is disproportionate to the crime committed.").
Finally, the historical antecedents of our Excessive Fines
part" to facilitate a violation of the Controlled Substances Act.
21 U.S.C. § 881(a)(7). The government must present evidence
furnishing a reasonable ground for belief that a substantial
connection exists between the property to be forfeited and the
illegal activity. See United States v. $121,100.00 in U.S.
Currency, 999 F.2d 1503, 1505 (11th Cir.1993) (§ 881(a)(6));
United States v. Approximately 50 Acres of Real Property Located
at 42450 Highway 441 N. Fort Drum, 920 F.2d 900, 902 (11th
Cir.1991) (§ 881(a)(6)). See also United States v. Parcel of
Land and Residence at 28 Emery St., 914 F.2d 1, 3-4 (1st
Cir.1990) (§ 881(a)(7); United States v. One Parcel of Real
Estate Located at 7715 Betsy Bruce Lane, 906 F.2d 110, 112-13
(4th Cir.1990) (§ 881(a)(7)); United States v. Premises Known as
3639-2nd St., N.E., 869 F.2d 1093, 1096-97 (8th Cir.1989) (§
881(a)(7)).
Clause themselves required proportionality review. Magna Charta,
for instance, contained several provisions regulating the amount of
amercements, fines which were imposed at the discretion of the
court for illegal conduct.10 See Magna Charta § 20 ("A freeman
shall not be amerced for a small fault but after the manner of the
fault; and for a great crime according to the heinousness of
it....") (emphasis added); Harmelin, 501 U.S. at 968-69, 111 S.Ct.
at 2687-88 (Scalia, J., and Rehnquist, C.J.); Massey, supra note
10, at 1251. By the time of the Glorious Revolution, it was clear
that Magna Charta afforded no protection from extravagant "fines,"
which were typically criminal penalties,11 but which were also
levied ruthlessly on enemies of James II and Charles II. Massey,
supra, at 1253, 1263. Accordingly, those who drafted the 1689
English Declaration of Rights (and its statutory counterpart, the
Bill of Rights), included an excessive-fines clause: "excessive
Baile ought not to be required nor excessive Fines imposed nor
cruell and unusuall Punishments inflicted." 1 Wm. & Mary, 2d
Sess., ch. 2, 3 Stat. at Large 440, 441 (1689), cited in Solem v.
10
Amercements were an "all-purpose monetary sanction used to
penalize both criminal and civil wrongdoing." Even before Magna
Charta, a writ de moderata misericordia would lie if the penalty
"was disproportionately large in relation to the offense."
Calvin R. Massey, The Excessive Fines Clause and Punitive
Damages: Some Lessons From History, 40 Vand.L.Rev. 1233, 1259
(1987).
11
One justification for the Magna Charta's failure to
address the proportionality of fines may have been the "well
established common-law tradition invalidating excessive fines."
Massey, supra, at 1254 n. 124. What we today call a "fine," of
course, is not the same as what a seventeenth century Englishman
called a "fine" or what he called an "amercement." Each,
however, involved payment to a sovereign and each was linked to
the commission of a wrong.
Helm, 463 U.S. 277, 285, 103 S. Ct. 3001, 3007, 77 L. Ed. 2d 637
(1983); see also 4 Blackstone *378-379.12 The provision
"explicitly addressed the issue of fines, while it implicitly
reaffirmed ancient rights with respect to amercements." Massey,
supra, at 1255. William of Orange's acceptance of the English
throne in 1689 was directly linked to his acceptance of the
Declaration of Rights. Id. at 1249-50. And in an often recounted
case, three months after the Bill of Rights was adopted the House
of Lords reviewed the imposition of a thirty thousand pound fine on
the Earl of Devon for an "assault and battery upon Colonel
Culpepper." See Weems v. United States, 217 U.S. 349, 376, 30
S. Ct. 544, 552, 54 L. Ed. 793 (1910); Solem, 463 U.S. at 285, 103
S.Ct. at 3007 (1983). The House of Lords declared the fine
"excessive and exorbitant, against Magna Charta, the common right
of the subject, and the law of the land." Earl of Devon's Case, 11
State Trials 1354, 1372 (1689).
In sum, the principle that "fines" are not to be "excessive"
(i.e. "out of proportion") was well rooted in English law when our
country came of age. And of course, the Eighth Amendment "was
based directly on Art. I, § 9, of the Virginia Declaration of
Rights (1776), authored by George Mason. He, in turn, had adopted
verbatim the language of the English Bill of Rights." Solem, 463
U.S. at 286 n. 10, 103 S. Ct. at 3007 n. 10 (both emphases added).
These observations lead to the conclusion that application of
the Excessive Fines Clause to civil forfeiture under 21 U.S.C. §
12
See Massey, supra, at 1264 ("It was this unwelcome flexing
of royal authority that undoubtedly was the immediate political
target of the Declaration of Rights.").
881(a)(7) requires a review of the proportionality of the fine
imposed.13 That is, a court must ask: Given the offense for which
the owner is being punished, is the fine (imposed by civil
forfeiture) excessive? While the core of proportionality review is
a comparison of the severity of the fine with the seriousness of
the underlying offense, it would be futile to attempt a definitive
checklist of relevant factors. The relevant factors will
necessarily vary from case to case. See United States v. Monroe,
866 F.2d 1357, 1366 (11th Cir.1989) (" "The [E]ighth [A]mendment
prohibits only those forfeitures that, in light of all relevant
circumstances, are grossly disproportionate to the offense
committed.' ") (quoting United States v. Busher, 817 F.2d 1409,
1415 (9th Cir.1987)).
We turn to the present case. On the one hand, the real
property in question is worth approximately $65,000. Moreover,
Jenkins has never been convicted of a violation of the Controlled
Substances Act, and it is undisputed that the legitimate businesses
that he ran off the property (i.e. his own store and renting out
the other portion of the building) were his primary source of
livelihood. On the other hand, Jenkins's property was forfeited on
the strength of possession with the intent to distribute three
grams of cocaine within five hundred feet of a junior high school.
In 1991, under the United States Sentencing Commission Guidelines,
this was a Level 14 offense, punishable by fifteen to twenty-one
13
See also United States v. One Single Family Residence
Located at 18755 N. Bay Rd., 13 F.3d 1493, 1498 (1994) (finding
in rem forfeiture pursuant to 18 U.S.C. § 1955 to be the
"imposition of a disproportionate penalty" in violation of the
Excessive Fines Clause).
months in prison. See United States Sentencing Commission,
Guidelines Manual at §§ 2D1.1, 2D1.2, 5A (1990). A Level 14
offense also results in a mandatory fine ranging from $4000 to
$40,000. See id. at § 5E1.2. Furthermore, putting aside the
sentencing guidelines, the totality of the circumstances
underscores the seriousness of the offense. Jenkins was found with
marijuana, large amounts of cash, bullets, and a .38 caliber gun,
and he was quite close to a junior high school. Given a possible
sentence of twenty-one months in prison and a $40,000 fine, and
given the additional factors at work in this case, we conclude that
forfeiture of a $65,000 piece of property does not violate the
Excessive Fines Clause.
III.
The district court applied a two-step test to measure the
excessiveness of the fine, a test which emphasized instrumentality
analysis, but which included proportionality review. While we
affirm the judgment of the district court (ordering the property
forfeited to the government), we do so solely on the strength of
proportionality review, which is all that the Excessive Fines
Clause requires. The judgment of the district court is
AFFIRMED.