United States v. Val Johnson

FILED
NOT FOR PUBLICATION OCT 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10201
Plaintiff - Appellant, D.C. No. 2:10-cr-00077-JCM-RJJ-1
v.
MEMORANDUM*
VAL JOHNSON,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted September 11, 2012
San Francisco, California
Before: WALLACE, THOMAS, and BERZON, Circuit Judges.
The United States appeals from the sentence imposed by the district court
order denying forfeiture. We have jurisdiction under 28 U.S.C. § 1291. We vacate
the district court’s sentence and remand for further proceedings consistent with
United States v. Newman, 659 F.3d 1235 (9th Cir. 2011).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Under Newman, the district court had no discretion to reduce or eliminate
forfeiture. Id. at 1240. However, if the district court determines there is reason to
question the accuracy of the stipulated forfeiture amount, it should take evidence of
the amount of the proceeds. See id. at 1245-46.
Though decided after the district court entered its sentence, Newman did not
announce a new constitutional rule of criminal procedure, and therefore is not
barred from retroactive application under Teague v. Lane, 489 U.S. 288 (1989).
See Reina-Rodriguez v. United States, 655 F.3d 1182, 1187 (9th Cir. 2011).
Johnson waived any Eighth Amendment challenge to his forfeiture amount
in his plea memorandum. See United States v. Joyce, 357 F.3d 921, 922 (9th Cir.
2004).
Sentence VACATED and action REMANDED.
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