United States v. Claritza Natera ( 2015 )

FILED
NOT FOR PUBLICATION
SEP 02 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30061
Plaintiff - Appellee, D.C. No. 3:13-cr-00019-TMB-1
v.
MEMORANDUM*
CLARITZA NATERA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted August 11, 2015
Anchorage, Alaska
Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.
Claritza Natera pled guilty to one count of conspiracy to commit
international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(h).
Natera appeals, challenging the district court’s imposition of a forfeiture money
judgment against her in the amount of $239,990, representing the aggregate sum of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
money that Natera and her co-conspirators laundered during the conspiracy. In
Natera’s plea agreement, she “waive[d] without exception the right to appeal . . .
the sentence the Court imposes . . . including forfeiture.” We have jurisdiction to
determine whether the waiver is enforceable. See United States v. Jacobo Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc). We conclude that it is, and dismiss
the appeal.
An appeal waiver “is enforceable if (1) the language of the waiver
encompasses the right to appeal on the grounds raised, and (2) the waiver is
knowingly and voluntarily made.” United States v. Rahman, 642 F.3d 1257, 1259
(9th Cir. 2011) (internal quotation marks omitted). Here, both criteria are met.
First, Natera’s appeal waiver expressly encompasses forfeiture. Second, Natera’s
counsel conceded in the briefing and during oral argument that Natera’s appeal
waiver “was knowing and voluntary.” Our review of the record leaves no doubt on
that score. Natera was represented by counsel when she entered into the plea
agreement, which unambiguously states that Natera waived the right to appeal her
sentence, including any forfeiture ordered by the court. The district court
conducted a thorough Rule 11 plea colloquy to ensure Natera’s plea was knowing
and voluntary, explaining that by entering the plea agreement and pleading guilty,
Natera was waiving her right to appeal any sentence imposed so long as it
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complied with the terms of the plea agreement. Natera acknowledged that she
understood. The district court also discussed at length the parties’ agreement
regarding criminal forfeiture. The district court explained that although Natera
“agree[d] to forfeit approximately $35,000,” the “government [would be] free to
argue that . . . it’s actually a higher number.” Natera again affirmed she
understood. Based on the record, and counsel’s concessions, we find that “the
waiver was knowingly and voluntarily made given the circumstances surrounding
the agreement.” United States v. Watson, 582 F.3d 974, 978 (9th Cir. 2009).
We reject Natera’s argument that her appeal waiver is not enforceable
because the district court’s forfeiture order amounts to an “illegal sentence.” After
making a factual finding that Natera could have reasonably foreseen the money
laundering activities of her co-conspirators, the district court entered a $239,990
money judgment against Natera. The district court’s oral pronouncement of
sentence specified that Natera would be jointly and severally liable for this amount
with her the other co-conspirators who were convicted of the conspiracy count.
Natera fails to cite any authority supporting her contention that the forfeiture order
was contrary to law. See 18 U.S.C. § 982(a)(1) (“The court, in imposing sentence
on a person convicted of an offense in violation of section 1956 [Laundering of
monetary instruments], . . . shall order that the person forfeit . . . any property . . .
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involved in such offense . . . .”) (emphasis added); United States v. Newman, 659
F.3d 1235, 1244 (9th Cir. 2011) (explaining that when a defendant commits a
conspiracy offense, the “proceeds” subject to forfeiture “equal the total [proceeds
generated] . . . by the conspiracy as a whole”).
We therefore DISMISS the appeal, but direct the district court to amend the
written judgment to reflect that: (1) Natera is jointly and severally liable for the
amount of forfeiture; and (2) the forfeiture judgment is offset by the $55,720
seized and forfeited in the Philadelphia airport. See Fed. R. Crim. P. 36 (“After
giving any notice it considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the record, or correct an error in
the record arising from oversight or omission.”).
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