United States v. Decker

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 23, 2021
• Docket: 20-7030
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 23, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-7030 (D.C. No. 6:19-CR-00054-RAW-1) JACOB THOMAS DECKER, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges. _________________________________

Jacob Decker appeals the district court’s forfeiture order. For the reasons

explained below, we affirm.

Background

Decker pleaded guilty to possession with intent to distribute

methamphetamine. The presentence investigation report (PSR), which neither party

objected to, provided the following details about the events leading to Decker’s arrest

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). and conviction.

In January 2019, a car dealership in Dallas, Texas, reported a stolen vehicle.

State law-enforcement officers located the vehicle using GPS and attempted to stop

it, but the driver—who turned out to be Decker—led them on a high-speed chase.

When the chase ended, officers arrested Decker and found two bags in the vehicle:

(1) a duffel bag containing 16 bundles of cash totaling $424,100, on which a drug-

sniffing dog detected the odor of narcotics, and (2) a backpack containing, among

other things, a glass smoking pipe, three $1,000 money orders, and some IRS forms

for gambling winnings in Decker’s name. They also found two cellphones in the

vehicle; one contained text messages about how Decker was running from law

enforcement. Additionally, during the chase, officers observed Decker throwing

items out the window, and they later recovered a substance from the side of the road

that tested positive for methamphetamine.

The indictment against Decker included a forfeiture allegation under 21 U.S.C.

§ 853, listing the property to be forfeited as the property that law enforcement seized

from the vehicle Decker was driving, including the $424,100 in cash and the three

$1,000 money orders. During Decker’s change-of-plea hearing, the district court (a

magistrate judge presiding by consent of the parties) informed Decker of the

forfeiture allegation, noting that it “may also order forfeiture of property or funds

which were proceeds from or obtained with proceeds from your criminal activity, if

such forfeiture is authorized by statute.” R. vol. 2, 6–7.

After Decker’s plea, the government filed a motion seeking a preliminary

2 forfeiture order for the cash and money orders, asserting that “[b]ased upon the guilty

plea by the defendant, [it had] established the requisite nexus between the property

and the offense to which the defendant has entered his plea of guilty.” R. vol. 1, 22.

The district court agreed and “f[ound] that, as a result of the guilty plea . . . , the

motion should be granted.” Id. at 25. At sentencing, the district court ordered Decker

to forfeit the property as set forth in the preliminary order, and the judgment reflects

this ruling. Decker appeals.

Analysis

Acknowledging that he did not object to the forfeiture order below, Decker

argues that the district court plainly erred in its forfeiture order. To prevail under this

standard, Decker “must show ‘(1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’” United States v. Mendenhall, 945 F.3d 1264,

1267 (10th Cir. 2019) (quoting United States v. Mann, 786 F.3d 1244, 1248 (10th

Cir. 2015)).

Section 853 “mandates forfeiture with respect to persons convicted of certain

serious drug crimes.” Honeycutt v. United States, 137 S. Ct. 1626, 1631 (2017). As

relevant here, such a person “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” drug crimes, as well as “any of the person’s property used, or

intended to be used, in any manner or part, to commit, or to facilitate the commission

of, such” drug crimes. § 853(a). In turn, Federal Rule of Criminal Procedure 32.2

3 elaborates on forfeiture procedure, providing in relevant part that “[i]f the

government seeks forfeiture of specific property, the court must determine whether

the government has established the requisite nexus between the property and the

offense.” Fed. R. Crim. P. 32.2(b)(1)(A).

On appeal, Decker asserts that the district court erred by failing to specifically

find a nexus between his criminal activity and the forfeited property. That is, he

contends the district court erred “because there was no determination that the

[g]overnment had ‘established the requisite nexus between the property and the

offense.’” Aplt. Br. 9 (quoting Fed. R. Crim. P. 32.2(b)(1)(A)). In support, Decker

points out that the forfeiture order neither recites the applicable provisions of

§ 853(a) nor uses the word “nexus.” He further notes that the government’s forfeiture

motion does not fill this gap because (1) it states in a conclusory fashion that

Decker’s guilty plea established the requisite nexus and (2) the plea hearing

contained no discussion of any nexus between the crime and the property to be

forfeited.

Decker’s argument—aimed at the absence of an express nexus finding and not

at the absence of the nexus itself—fails. Rule 32.2 states only that “the court must

determine whether the government has established the requisite nexus between the

property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A) (emphasis added). It does

not require the court to state that determination on the record.

We have previously recognized such a distinction, albeit in a civil case. See

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1169–70 (10th Cir. 2011). There, the

4 defendant argued that “that the district court erred when it failed to state

affirmatively that it had jurisdiction over” him. Id. at 1169. In support, the defendant

relied on precedent stating that “a district court must determine whether it has

jurisdiction over the defendant before entering judgment by default against a party

who has not appeared in the case.” Id. (quoting Dennis Garberg & Assocs., Inc. v.

Pack-Tech Int’l Corp., 115 F.3d 767, 772 (10th Cir. 1997)). We distinguished that

precedent on the grounds that determining jurisdiction was different from placing

that determination on the record. Id. at 1169–70.

Though the context here is different, the rationale is the same. Rule 32.2

directs the court to determine the requisite nexus, but it does not require the court to

place that determination on the record. And here, as the government points out, by

ordering forfeiture, the district court implicitly determined the required nexus. See

§ 853 (mandating forfeiture of property that has some nexus to offense). Thus, the

district court did not “err[] in failing to make a finding of the requisite nexus between

the property and the offense.” Aplt. Br. 11.

Moreover, even if we were to assume error, it would not be plain. An error is

plain when it is “so clear or obvious that it could not be subject to any reasonable

dispute.” United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016). Decker

argues in a single paragraph that any error is plain because Rule 32.2 obviously

requires a nexus between the property to be forfeited and the criminal offense. But as

discussed above, that is all Rule 32.2 requires: a nexus. It does not require that the

district court describe that nexus on the record. And Decker fails to point us to any

5 caselaw, binding or otherwise, reading such a requirement into Rule 32.2. Nor have

we found any. Accordingly, even assuming the district court erred by failing to

expressly state its nexus finding, such error was not plain.

And even if we were to assume plain error, Decker’s argument for reversal

fails again at the third prong of plain error, whether “there is a reasonable probability

that the error affected the outcome of the proceedings.” United States v. Burns, 775

F.3d 1221, 1224 (10th Cir. 2014). Decker addresses this prong of the plain-error test

in another single-paragraph analysis. In so doing, he fails to explain how the outcome

of the proceeding would have been different had the district court made an express

nexus finding. And he ignores the strong, obvious, and uncontroverted evidence

connecting the property to be forfeited—the cash and money orders—to his

conviction for possessing methamphetamine with the intent to distribute it.

According to the uncontroverted PSR, the cash and money orders were found in the

vehicle that Decker drove in a high-speed chase with law enforcement, during which

he threw a substance out the window that later tested positive for methamphetamine.

A drug-sniffing dog detected the smell of drugs on the $424,100 in cash, which was

mostly composed of $100 bills. The bag containing the money orders also contained

a glass smoking pipe. See United States v. Triana, 477 F.3d 1189, 1192 (10th Cir.

2007) (describing glass pipes as drug paraphernalia). And the vehicle itself contained

two cellphones, which is further evidence of drug trafficking. See United States v.

Greenwood, 594 F. App’x 486, 489 (10th Cir. 2014) (unpublished) (noting that

possession of “multiple cellphones, large amounts of cash, . . . and drug-related

6 items” is “typical of a drug distributor”).

These facts establish the requisite nexus. See § 853(a) (providing for forfeiture

of “property constituting, or derived from, any proceeds” of offense and of “property

used[] or intended to be used . . . to facilitate the commission of” offense). Because

there is no reasonable probability that an express nexus finding would have changed

the outcome, any error in the district court’s failure to state its nexus finding on the

record did not affect Decker’s substantial rights. Cf. Mendenhall, 945 F.3d at 1269

(finding that error “affected the outcome of the proceedings” where, “[b]ut for the

legal error, [the defendant] would not have been ordered to pay restitution as part of

his sentence”).

Finally, on the fourth prong of plain error—whether the error “affect[ed] the

fairness, integrity, or public reputation of these judicial proceedings,” Mendenhall,

945 F.3d at 1269—Decker asserts that without a nexus finding, “the district court’s

entry of a forfeiture order was an illegal sentence,” Aplt. Br. 13. In support, he cites

several cases in which this court has found plain error in excessive restitution orders.

See, e.g., Mendenhall, 945 F.3d at 1269–70 (reasoning that “restitution in an amount

that exceeds the loss caused by a defendant’s offense . . . amounts to an illegal

sentence” and “can thereby affect the fairness, integrity, and public reputation of

judicial proceedings”). But the district court’s failure to make an express nexus

finding is not analogous to a restitution order that exceeds the amount of restitution

authorized by statute: the former is a mere procedural matter, and the latter violates a

statute. Thus, any procedural error in failing to expressly state a nexus finding that is

7 obviously supported by the evidence did not affect the fairness, integrity, or public

reputation of judicial proceedings. Decker therefore fails to establish reversible plain

error.

Conclusion

The district court did not err, plainly or otherwise, in failing to expressly state

its nexus finding on the record. And even if we were to assume plain error, such error

did not affect Decker’s substantial rights or the fairness, integrity, or public

reputation of judicial proceedings. Accordingly, we affirm the district court’s

forfeiture order.

Entered for the Court

Nancy L. Moritz Circuit Judge