United States v. Peralta (Sanchez) ( 2019 )

18‐2570‐cr
United States v. Peralta (Sanchez)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 1st day of October, two thousand nineteen.
PRESENT: DENNIS JACOBS,
PETER W. HALL,
DEBRA A. LIVINGSTON,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 18‐2570
NICOLAS PERALTA, SAMUEL RIVERA, HECTOR GUTIERREZ,
JEFFERY RIVERA, JULIO HERNANDEZ, RAMON GOMEZ,
OSVALDO GARCIA, JUAN RAMIREZ, VANESSA PAGAN
Defendants,
GILBERT ROSA SANCHEZ, AKA JULIAN LUCIA‐CEDANO,
Defendant‐Appellant.
_____________________________________
For Appellant: Lisa A. Peebles, Melissa A. Touhey, Office of the
Federal Public Defender, Syracuse, NY
For Appellee: Carla B. Freedman and Rajit S. Dosanjh,
Assistant United States Attorneys, for Grant C.
Jacquith, United States Attorney for the
Northern District of New York, New York, New
York
Appeal from a judgment of the United States District Court for the Northern
District of New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal from the judgment of the district court is AFFIRMED.
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,
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
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.
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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, 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, 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.”
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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, 2019 WL 44633565, at *1.
The Supreme Court’s decision in Honeycutt v. United States, 137 S. Ct. 1626 (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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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