United States v. Basciano

649 F. App'x 42

• Court: Court of Appeals for the Second Circuit
• Decided: May 20, 2016
• Docket: 14-3400, 14-4585
• Status: Unpublished

Opinion

SUMMARY ORDER

Vincent Basciano, Jr., appeals from a judgment of conviction and sentence of the United States District Court for the Southern District of New York (Sullivan, /.). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Basciano contends that the district court erred in calculating forfeiture based on his marijuana sales. If the defendant preserves an objection, this Court reviews a district court’s factual findings regarding forfeiture for clear error and its legal determinations, if any, de novo. United States v. George, 779 F.3d 113, 122 (2d Cir.2015). Since Basciano did not object to the district court’s methodology, we review the forfeiture determination only for plain eiTor. United States v. Roberts, 660 F.3d 149, 167 (2d Cir.2011).

The Government bears the burden of proving the amount of proceeds by a preponderance of the evidence. United States v. Capoccia, 503 F.3d 103, 116 & n. 18 (2d Cir.2007). “The calculation of forfeiture amounts is not an exact science,” United States v. Treacy, 639 F.3d 32, 48 (2d Cir.2011), so “district courts may use general points of reference as a starting point for a forfeiture calculation and make reasonable extrapolations supported by a preponderance of the evidence,” Roberts, 660 F.3d at 166 (internal quotation marks omitted). Thus, in a narcotics case, the government may sustain its burden by “proving the quantity of [narcotics] dealt ... multiplied by the price it could have commanded.” Id. at 165.

Basciano’s plea agreement stipulated to his sale of at least 100 kilograms (or 220 pounds) of marijuana. The district court proposed to use that quantity, and no party objected. The district court then multiplied that quantity by the retail price of $9,700 per pound. Recognizing the result was only an estimate, the district court rounded down by $134,000 and ordered forfeiture of $2,000,000.

This calculation was “a reasonable estimate of the loss, given the available information.” Treacy, 639 F.3d at 48 (internal quotation marks omitted). Multiplication of amount by price is an approach express: ly permitted in our prior precedent. See Roberts, 660 F.3d at 165. Because the district court’s estimate was reasonable, we affirm the amount of the forfeiture order.

For the foregoing reasons, and finding no merit in the defendant’s other arguments, we hereby AFFIRM the judgment of the district court.