United States v. Taggert , 484 F. App'x 614 ( 2012 )

11-2526-cr
United States v. Taggert
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-2526-cr
ANTHONY TAGGERT,
Defendant-Appellant.
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FOR APPELLEE: CHRISTOPHER D. FREY, Assistant
United States Attorney (Daniel P.
Chung, Justin S. Weddle, Assistant
United States Attorneys, on the
brief), for Preet Bharara, United
States Attorney for the Southern
District of New York, New York, New
York.
FOR DEFENDANT-APPELLANT: MITCHELL A. GOLUB, Golub & Golub,
LLP, New York, New York.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Jones, J.). UPON
DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that the judgment of the district court is AFFIRMED.
Defendant-appellant Anthony Taggert appeals from the
district court's judgment, entered on June 8, 2011, convicting
him of various drug conspiracy, distribution, and possession
charges and sentencing him to ninety-six months' imprisonment,
five years' supervised release, and forfeiture in the amount of
$2,248,000.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Taggert appeals only the forfeiture amount ordered by
the district court, contending that the amount imposed created an
unwarranted sentencing disparity among similarly situated
defendants, and that the district court therefore failed to
consider the need to avoid such disparities pursuant to 18 U.S.C.
§ 3553(a)(6) ("The court . . . shall consider . . . the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct
. . . ."). Specifically, Taggert argues that the district court
should have ordered a forfeiture amount in line with what it
imposed on Brian Gaul, Taggert's wholesale middleman supplier of
methamphetamine, who cooperated with and testified for the
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government at Taggert's trial. The district court sentenced Gaul
prior to Taggert, ordering forfeiture in the amount of $20,000.
We review a sentence challenged on appeal for
procedural and substantive reasonableness. United States v.
Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008). Where the defendant
did not object to or raise the issue before sentencing below, as
Taggert concedes he did not here,1 we review any procedural claim
for plain error. See United States v. Uddin, 551 F.3d 176, 181
(2d Cir. 2009). In examining a sentence for substantive
reasonableness, we review it under a "'deferential abuse-of-
discretion standard.'" Cavera, 550 F.3d at 189 (2d Cir. 2008)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). With
respect to calculation of the forfeiture amount, we review
factual findings for clear error and legal conclusions de novo.
United States v. Roberts, 660 F.3d 149, 165 (2d Cir. 2011).
We have reviewed the district court's forfeiture order
below in light of these principles and conclude that the district
court committed no error and did not abuse its discretion in
imposing forfeiture in the amount of $2,248,000.
First, even assuming § 3553(a)(6) applies to forfeiture
orders,2 we have previously held that § 3553(a)(6) "requires a
1
Taggert only raised the issue in a letter submitted to
the district court almost three weeks after the sentencing and
after already filing a notice of appeal.
2
It is not apparent that § 3553(a)(6) applies to an
order of forfeiture. Title 18, United States Code, Section 3554
governs an order of criminal forfeiture, making it mandatory for
various drug offenses. See 18 U.S.C. § 3554. In addition, 21
U.S.C. § 853 governs criminal forfeitures specifically with
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district court to consider nationwide sentence disparities, but
does not require a district court to consider disparities between
co-defendants." United States v. Frias, 521 F.3d 229, 236 (2d
Cir. 2008). Here, the district court was not required to
consider any disparity in this respect between Gaul and Taggert.
Second, Gaul and Taggert were not similarly situated
defendants in any event. Gaul acted as a middleman in some of
Taggert's drug purchases, sometimes brokering transactions with
funds provided by Taggert, while Taggert arranged for transport
of drugs to New York and carried out their sale and distribution
in New York -- including transactions not involving Gaul.
Further, Gaul pled guilty and cooperated with the government,
whereas Taggert went to trial and only provided assistance to the
government after his conviction following trial.
Third, the district court's findings with respect to
the calculation of forfeiture were not clearly erroneous, see
Roberts, 660 F.3d at 165, and the district court did not abuse
its discretion in ordering the forfeiture amount. The government
attributed approximately 44 pounds, or roughly 20 kilograms, of
methamphetamine to Taggert based on his proffer with the
government. Defense counsel agreed to this amount at sentencing.
respect to drug offenses, mandating that a court, "in imposing
sentence . . . , shall order, in addition to any other sentence
imposed," forfeiture of any property or proceeds obtained as a
result of the offense conduct. See 21 U.S.C. § 853(a). Neither
statute incorporates or makes reference to the sentencing factors
listed under § 3553(a). See 18 U.S.C. § 3554; 21 U.S.C. §
853(a). In light of our disposition below, we do not decide this
issue.
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(See Sent. Tr. 2-3 ("[M]y belief is, and I think it's borne out
by the government's own submission, that the total quantity was
around 44 pounds, which comes out to about 20 kilos.")). The
government provided a breakdown of the monies attributed to this
amount in its sentencing memorandum. (See Gov't Sent. Mem. 15).
The district court reviewed the government's calculations and
found that "they adequately demonstrate that the proceeds here
from . . . at least a portion of [Taggert's] methamphetamine
sales would result in a forfeiture of $2,248,000." (Sent Tr.
18).
Finally, even assuming the district court did err as to
Gaul's forfeiture amount in light of the subsequent calculations
involving Taggert, it is of no consequence as the district
court's forfeiture order with respect to Taggert was not plainly
erroneous nor was it located outside "the range of permissible
decisions." Cavera, 550 F.3d at 189 (internal citation and
quotation marks omitted).
We have considered Taggert's remaining arguments on
appeal and find them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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