UNITED STATES v. Gilbert Rosa Sanchez, aka Julian Lucia-Cedano, Defendant-Appellant. (2019)

SUMMARY ORDER

Defendant-Appellant Gilbert Rosa Sanchez claims the United States District Court for the Northern District of New York (Suddaby, C.J.) exceeded its constitutional and statutory authority by entering a personal money judgment against him in the amount of $20,000, following his guilty plea to a drug trafficking conspiracy. The issue raised in this appeal is identical to one of the issues raised in United States v. Green, No. 18-2106-cr, 777 Fed.Appx. 23, 2019 WL 4463565 (2d Cir. Sept. 18, 2019) (summary order), and the arguments in each are substantially similar.¹ We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issue on appeal. Given counsel’s familiarity with our decision in Green, we also substantially parrot that decision in our disposition here.

Like the appellant in Green, Sanchez does not dispute the factual basis for the judgment or suggest that the government sought an amount in excess of his actual proceeds from drug trafficking. See Green, 777 Fed.Appx. at 24–25, 2019 WL 4463565, at *1. Instead, Sanchez argues that the governing statute, 21 U.S.C. § 853, does not authorize personal money judgments at all. Sanchez relies primarily on a decision of the Eastern District of New York, United States v. Surgent, No. 04 Crim. 364, 2009 WL 2525137 (E.D.N.Y. Aug. 17, 2009), in which the court concluded that § 853 did not authorize courts to issue in personam money judgments.

Further paraphrasing our analysis in Green, we repeat that we have rejected Surgent’s rationale when we held in United States v. Awad, 598 F.3d 76 (2d Cir. 2010) (per curiam), “that ‘§ 853 permits imposition of a money judgment on a defendant who possess no assets at the time of sentencing.’ ” Green, 777 Fed.Appx. at 25, 2019 WL 4463565, at *1 (quoting Awad, 598 F.3d at 78); see Awad, 598 F.3d. at 79 n.5 (“We are aware of the thorough discussion and contrary interpretation advanced in United States v. Surgent ․ upon which the appellant Awad relies heavily. In the end, however, we find it unpersuasive.”). “It is a longstanding rule of our Circuit that a three-judge panel is bound by a prior panel’s decision until it is overruled either by this Court sitting en banc or by the Supreme Court.” Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016). We agree with our colleagues that Awad remains controlling precedent. See Green, 777 Fed.Appx. at 24–25, 2019 WL 4463565, at *1. The Supreme Court’s decision in Honeycutt v. United States, ––– U.S. ––––, 137 S. Ct. 1626, 198 L.Ed.2d 73 (2017), addresses joint and several forfeiture liability, not the propriety of forfeiture money judgments. Its holding does not abrogate Awad. Further, this court has recognized the validity of personal forfeiture money judgments in other published decisions. See, e.g., United States v. Kalish, 626 F.3d 165, 169 (2d Cir. 2010) (money judgment under 28 U.S.C. 2461(c)); United States v. Robilotto, 828 F.2d 940, 948–49 (2d Cir. 1987).

We have considered all of Sanchez’s remaining contentions on appeal and have found in them no basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

FOOTNOTES

1.   Both Sanchez and the appellant in Green have been represented in their appeals by the Syracuse, New York Office of the Federal Public Defender.