United States v. Kenneth Taylor

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2021
• Docket: 19-10381
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10381

Plaintiff-Appellee, D.C. No. 4:17-cr-00191-JST-1

v. MEMORANDUM* KENNETH TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jon Tigar, District Judge, Presiding

Submitted January 14, 2021** San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,*** District Judge.

Kenneth Taylor pleaded guilty to conspiracy to commit wire fraud, in

violation of 18 U.S.C. § 1349, and to making and subscribing a false tax return, in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. violation of 26 U.S.C. § 7206(1). At sentencing, the district court ordered a forfeiture

money judgment against Taylor, which he challenges as an unlawful form of

punishment. Because the parties are familiar with the facts, we do not recount them

here, except as necessary to provide context to our ruling. We have jurisdiction over

Taylor’s timely appeal pursuant to 28 U.S.C. § 1291. Because Taylor has waived his

right to appeal his sentence, we dismiss.

We review de novo whether a defendant has waived his right to appeal. United

States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016). Generally, a “waiver of appellate

rights is enforceable if (1) the language of the waiver encompasses [the defendant’s]

right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily

made.” Id. (citation and quotations omitted). In Lo, we held that this standard was

met where: “[t]he district court reviewed the plea agreement thoroughly during the

Rule 11 colloquy;” the district court “warned [the defendant] that the sentence could

be greater than he had been told;” and “the scope of [the] appeal waiver clearly

include[d]” forfeiture, with the statement, “‘I also agree to waive any right I have to

appeal any aspect of my sentence, including any orders relating to forfeiture and or

restitution.’” Id. at 786–87. Here, the district court was similarly thorough in its

review and warning, and the plea agreement contained language regarding waiving

the right to appeal “any aspect of [Taylor’s] sentence, including any orders relating

to forfeiture and/or restitution.” Accordingly, Taylor’s waiver of appellate rights is

2 enforceable, absent an applicable exception. A waiver of appellate rights would not

be enforceable where “the sentence violates the law,” United States v. Watson, 582

F.3d 974, 987 (9th Cir. 2009), and Taylor primarily argues that forfeiture money

judgments are unlawful. Our court, however, has already decided that forfeiture

money judgments are permissible in the criminal forfeiture context, even after the

Supreme Court handed down its decision in Honeycutt v. United States, 137 S. Ct.

1626 (2017). United States v. Nejad, 933 F.3d 1162 (9th Cir. 2019) (“We have

regarded such [money] judgments as necessary to avoid undermining Congress’

objectives in enacting mandatory forfeiture sanctions, pointing in particular to the

substitute-property provision found in 21 U.S.C. § 853(p).”). Therefore, Taylor’s

waiver of appellate rights is enforceable.

DISMISSED.