United States v. Aston McCrea ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASTON EARL MCCREA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:11-cr-00089-SGW-RSB-1)
Submitted: September 30, 2014 Decided: October 10, 2014
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON, PLC,
Keswick, Virginia, for Appellant. Timothy J. Heaphy, United
States Attorney, Daniel P. Bubar, Kartic Padmanabhan, Assistant
United States Attorneys, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aston Earl McCrea appeals from an amended order of
forfeiture. In its amended order, the district court noted
that, pursuant to Fed. R. Crim. P. 32.2(e) and 21 U.S.C.
§ 853(p) (2012), the Government sought to include McCrea’s
residence as substitute property. The court found that, because
of the acts or omissions of the defendant, the proceeds of the
offenses were no longer available for forfeiture for one or more
reasons set forth in 21 U.S.C. § 853(p). McCrea appeals asking
whether the Government can satisfy a money judgment by seizing a
residence through resort to the substitute asset provisions of
21 U.S.C. § 853(p). For the reasons that follow, we affirm.
In an appeal from a criminal forfeiture proceeding, we
review a district court’s findings of fact for clear error and
its legal interpretations de novo. United States v. Martin, 662
F.3d 301, 306 (4th Cir. 2011). Forfeiture of substitute assets
is appropriate where the defendant does not have the money to
pay the forfeiture money judgment. See United States v. Oregon,
671 F.3d 484, 489 (4th Cir. 2012) (noting that the defendant
“did not possess sufficient funds to cover the money judgment
and, accordingly, the district court, in its preliminary order
of forfeiture, ordered forfeiture of substitute assets pursuant
to 21 U.S.C. § 853(p)”). Further, the criminal forfeiture
statute allows for forfeiture of “‘any other property of the
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defendant’” as substitute property when conspiracy proceeds
cannot be located. United States v. McHan, 345 F.3d 262, 271
(4th Cir. 2003) (quoting § 853(p)). Section 853(p) is not
discretionary; rather, the statute mandates forfeiture of
substitute assets when the tainted property has been placed
beyond the reach of a forfeiture. Id. at 271. It was
uncontested that McCrea did not have the proceeds generated from
his drug conspiracy and money laundering violations available to
satisfy the $76,062.63 money judgment remaining from the
forfeiture order. Thus, the district court granted the
Government’s motion to substitute McCrea’s residence under Rule
32.2(e) and § 853(p).
We have reviewed the parties’ arguments in conjunction
with the relevant record and authorities, and we find no
reversible error. Accordingly, we affirm the amended
forfeiture order. We dispense with oral argument as the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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