United States v. Peter Lam , 515 F. App'x 691 ( 2013 )

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                                                                           FILED
NOT FOR PUBLICATION                                APR 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 12-50080
Plaintiff - Appellee,              D.C. No. 2:07-cr-00449-PSG-6
v.
MEMORANDUM *
PETER XUONG LAM, AKA Kiet,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted April 9, 2013
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.
Appellant Peter Xuong Lam was convicted of three counts of selling
illegally imported fish, in violation of

18 U.S.C. § 545

; introducing misbranded
fish into interstate commerce with intent to defraud, in violation of

21 U.S.C. §§ 331

(a), (c); and conspiracy to commit these offenses, in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C.§ 371. Lam was sentenced to 41 months imprisonment and ordered to forfeit
267,570 pounds of fish and $12.58 million. Lam appeals the forfeiture order,
arguing that it violates the Excessive Fines Clause of the Eighth Amendment. We
have jurisdiction under

28 U.S.C. § 1291

. Because the district court granted the
forfeiture order without addressing Lam’s constitutional claim, we vacate the order
and remand to the district court to determine whether the forfeiture order violates
the Eighth Amendment.
A forfeiture is excessive under the Eighth Amendment if it is “grossly
disproportional to the gravity of a defendant’s offense.” United States v.
Bajakajian,

524 U.S. 321

, 334 (1998). If a “plaintiff makes a prima facie showing
that the forfeiture may be excessive, the district court must make a determination,
based upon appropriate findings,” as to whether the fine is constitutional. United
States v. Busher,

817 F.2d 1409

, 1415 (9th Cir. 1987). Indeed, the district court
“has the constitutional responsibility to assure that a forfeiture proceeding . . . does
not inflict excessive punishment in violation of the eighth amendment.” United
States v. Littlefield,

821 F.2d 1365

, 1368 (9th Cir. 1987). Thus, where a district
court has failed to make a finding with regard to the Eighth Amendment, we have
remanded, see Busher, 817 F.3d at 1416, so that “the district court [could] conduct
the fact-intensive inquiry necessary to determine the issue of excessiveness,”
2
Wright v. Riveland,

219 F.3d 905

, 918–19 (9th Cir. 2000); see also United States v.
Mackby,

261 F.3d 821

, 830 (9th Cir. 2001).
Here, Lam raised the Eighth Amendment issue before the district court, but
the district court granted the forfeiture order without addressing whether it was
constitutional. Accordingly, we vacate the order and remand to the district court for
consideration of whether the forfeiture order was unconstitutionally excessive, in
violation of the Eighth Amendment. See Busher,

817 F.2d at