USCA11 Case: 22-13060 Document: 41-1 Date Filed: 06/12/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13060
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE CROOKS,
a.k.a. Bighorndodge,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80171-KAM-1
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2 Opinion of the Court 22-13060
____________________
Before NEWSOM, GRANT, and MARCUS, Circuit Judges.
PER CURIAM:
Andre Crooks appeals following his conviction for conspir-
acy to distribute a controlled substance, in violation of
21 U.S.C.
§§ 841(b)(1)(A) and 846, challenging the district court’s order of for-
feiture of his residence. According to his factual proffer, Crooks
used the “dark web” -- a collection of encrypted digital networks --
to distribute 5 kilograms or more of powder cocaine and 280 grams
or more of crack cocaine from December 2020 through October
15, 2021, and in the plea agreement, Crooks agreed that his penal-
ties included of maximum fine of $10 million. On appeal, Crooks
argues that the district court erred in ordering forfeiture of his res-
idence because it was not used to facilitate the crime and its forfei-
ture was overly punitive. After thorough review, we affirm.
I.
We review de novo the district court’s legal conclusions con-
cerning forfeiture and review for clear error its findings of fact.
United States v. Puche,
350 F.3d 1137, 1153 (11th Cir. 2003). We also
review de novo whether a forfeiture order would constitute an ex-
cessive fine in violation of the Eighth Amendment. United States v.
Bajakajian,
524 U.S. 321, 336–37 (1998).
Any person convicted of a felony drug offense under Title
21 of the United States Code shall forfeit to the United States “any
of the person’s property used, or intended to be used, in any
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22-13060 Opinion of the Court 3
manner or part, to commit, or to facilitate the commission of” the
offense.
21 U.S.C. § 853(a)(2). The statute also provides that it is
to be “liberally construed to effectuate its remedial purposes.”
Id.
§ 853(o). A property facilitates commission of the crime when it
“makes the prohibited conduct less difficult or more or less free
from obstruction or hindrance.” Puche,
350 F.3d at 1153 (quota-
tions omitted). The government must prove by a preponderance
of the evidence that the property was used to facilitate the commis-
sion of the offense. United States v. Dicter,
198 F.3d 1284, 1289–90
(11th Cir. 1999).
A forfeiture order is unconstitutionally excessive if it is
grossly disproportional to the gravity of the defendant’s offense.
Bajakajian,
524 U.S. at 337. In Bajakajian, the Supreme Court set
forth three factors to consider in making that determination: (1)
whether the defendant is in the class of persons for whom the crim-
inal statute was principally designed; (2) other penalties authorized
by the legislature (or the Sentencing Commission); and (3) the
harm caused by the defendant. See
id. at 337–39. In looking at
other penalties, we compare the value of the forfeited property to
the maximum fine. See United States v. Browne,
505 F.3d 1229, 1282
(11th Cir. 2007). A strong presumption that a forfeiture is constitu-
tional arises where the value of the forfeited property is within the
range of fines prescribed by Congress. United States v. Seher,
562
F.3d 1344, 1371 (11th Cir. 2009). The impact a forfeiture order
would have on a defendant is not considered.
Id.
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4 Opinion of the Court 22-13060
Here, the district court did not err in finding that Crooks’s
residence was subject to forfeiture because he used the residence
to facilitate the commission of the offense.
21 U.S.C. § 853(a)(2).
As the record reflects, Crooks’s residence provided a place for him
to house his computer equipment, drugs, scales, a device for mak-
ing crack cocaine, and ready-to-mail packages of cocaine and crack
cocaine. Puche,
350 F.3d at 1153. Indeed, the residence is subject
to forfeiture -- regardless of when Crooks bought it -- so long as it
was used to facilitate the commission of the offense, as it was in this
case.
21 U.S.C. § 853(a)(2); Puche,
350 F.3d at 1153. And despite
Crooks’s claim that “his home was not a designated or necessary
part of the drug trafficking offense,” the drug trafficking forfeiture
statute at issue --
21 U.S.C. § 853(a)(2) -- covers property used “in
any manner” to facilitate the offense.
Id. § 853(a)(2) (emphasis
added). The statue further provides that it is to be “liberally con-
strued to effectuate its remedial purposes.” Id. § 853(o).
Moreover, the district court did not err in finding that forfei-
ture of Crooks’s home was not overly punitive because the factors
weigh in favor of forfeiture. Bajakajian,
524 U.S. at 337. For start-
ers, Crooks was in the class of persons for whom the drug traffick-
ing statute was designed because he had conspired to traffic drugs
by selling and distributing drugs to people through the dark web.
Id. at 337–39. In addition, the value of the house did not exceed the
maximum fine because the maximum fine was $10 million and nei-
ther Crooks nor the government alleged that the house was valued
higher than that. See Browne,
505 F.3d at 1282. Finally, Crooks
caused harm by selling and distributing 5 kilograms or more of
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22-13060 Opinion of the Court 5
powder cocaine and 280 grams or more of crack cocaine to more
than 1,500 customers. Bajakajian,
524 U.S. at 337–39.
While Crooks argues that the forfeiture of his residence was
overly punitive when considering the value of the other property
that he forfeited, he failed to show that the value of the forfeited
property would exceed his maximum fine. Seher,
562 F.3d at 1371.
The fact that he lived in the home with his children and that he
bought the home prior to the offense conduct is immaterial be-
cause, as we’ve noted, “[w]e do not take into account the impact
the [order] would have on an individual defendant.”
Id.
AFFIRMED.
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22-13060 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I concur in the majority opinion, which correctly applies ex-
isting precedent. Speaking only for myself, though, I continue to
believe that we took a wrong turn when we held that the constitu-
tional excessiveness of a fine or forfeiture should be determined
solely “in relation to the characteristics of the offense, not in rela-
tion to the characteristics of the offender.” United States v. 817 N.E.
29th Drive,
175 F.3d 1304, 1311 (11th Cir. 1999). I have explained
myself elsewhere and won’t rehash my position here. See Yates v.
Pinellas Hematology & Oncology, P.A.,
21 F.4th 1288, 1317–24 (11th
Cir. 2021) (Newsom, J., concurring).
