           Case: 15-11202   Date Filed: 10/19/2015   Page: 1 of 6


                                                                    [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11202
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:14-cr-00046-WTH-PRL-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellant,

                                  versus

NOEL HERNANDEZ,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (October 19, 2015)


Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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       After Defendant Noel Hernandez pled guilty to theft of government funds, in

violation of 18 U.S.C. § 641, the government moved the district court for entry of a

forfeiture money judgment of $117,659, the amount of loss sustained by the Social

Security Administration as a result of Hernandez’s offense. In its motion, the

government acknowledged that the district court was required to impose

restitution. At sentencing, the district court denied the government’s forfeiture

motion, but ordered Hernandez to pay restitution in the amount of $117,659. The

government appeals, arguing that the district court was required by law to enter a

forfeiture money judgment.

       Hernandez does not cross-appeal. Further, Hernandez concedes that the

district court was required by statute both to impose a forfeiture money judgment

against him and to order restitution. Hernandez instead argues that we may affirm

the district court’s ruling because the imposition of both forfeiture and restitution

orders would violate the Fifth Amendment’s prohibition against double jeopardy.

       After review, we conclude that the district court erred in denying the

government’s forfeiture motion. 1 Civil forfeiture was authorized against

Hernandez for his theft-of-government-funds offense under 18 U.S.C. § 981, the

civil forfeiture statute applicable in this case. See 18 U.S.C. § 981(a)(1)(C)

(providing that “[a]ny property, real or personal, which constitutes or is derived

       1
        This Court reviews de novo a district court’s legal conclusions regarding forfeiture.
United States v. Browne, 505 F.3d 1229, 1278 (11th Cir. 2007).
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from proceeds traceable to . . . any offense constituting ‘specified unlawful

activity’” as defined in 18 U.S.C. § 1956(c)(7) is subject to civil forfeiture); 18

U.S.C. § 1956(c)(7)(D) (including in the list of “specified unlawful activity”

offenses under 18 U.S.C. § 641). In turn, 28 U.S.C. § 2461(c) provides:

      If a person is charged in a criminal case with a violation of an Act of
      Congress for which the civil or criminal forfeiture of property is authorized,
      the Government may include notice of the forfeiture in the indictment or
      information pursuant to the Federal Rules of Criminal Procedure. If the
      defendant is convicted of the offense giving rise to the forfeiture, the court
      shall order the forfeiture of the property as part of the sentence in the
      criminal case . . . .

28 U.S.C. § 2461(c) (emphasis added). This Court has explained that “Congress

enacted 28 U.S.C. § 2461(c) . . . to make criminal forfeiture available in every case

that the criminal forfeiture statute does not reach but for which civil forfeiture is

legally authorized.” United States v. Padron, 527 F.3d 1156, 1161-62 (11th Cir.

2008). As in Padron, “since civil forfeiture is legally authorized by 18 U.S.C.

§ 981(a)(1)(C), 28 U.S.C. § 2461(c) makes criminal forfeiture available for” theft

of government funds as well. Id. at 1162.

      In its indictment, the government alleged that Hernandez “shall forfeit to the

United States, pursuant to Title 18, United States Code, Section 981(a)(1)(C) and

Title 28, United States Code, Section 2461(c), all of his interest in any property

constituting or derived from proceeds obtained directly or indirectly as a result of

said violation.” Because civil forfeiture was authorized and the government


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included notice of the forfeiture in Hernandez’s indictment, the district court was

required by § 2461(c) to order forfeiture as part of his sentence. See 28 U.S.C.

§ 2461(c); Fed. R. Crim. P. 32.2(a), (b).

      In addition, under the Mandatory Victims Restitution Act of 1996, the

district court was required to order restitution for the full loss suffered by the

Social Security Administration. See 18 U.S.C. §§ 3663(c)(1), 3664(f)(1)(A). In

doing so, the district court could not offset the amount of restitution by the amount

subject to forfeiture or consider Hernandez’s economic circumstances. See United

States v. Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014). Thus, the district court

was required by law both to grant the forfeiture motion and order full restitution,

and it erred when it denied the government’s forfeiture motion on the ground that it

had also ordered Hernandez to pay restitution.

      Hernandez’s double jeopardy argument is also unavailing. Where multiple

criminal punishments are statutorily authorized for the same offense, but do not

occur in successive proceedings, there is no Double Jeopardy Clause violation.

See Hudson v. United States, 522 U.S. 93, 98-99, 118 S. Ct. 488, 493 (1997).

Although this Court has not directly addressed whether imposing both restitution

and forfeiture judgments for a single offense implicates the prohibition on double

jeopardy, this Court has held that Congress intended restitution and forfeiture to

serve distinct roles in sentencing. See Joseph, 743 F.3d at 1354 (“While restitution


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seeks to make victims whole by reimbursing them for their losses, forfeiture is

meant to punish the defendant by transferring his ill-gotten gains to the United

States Department of Justice.”); see also United States v. Browne, 505 F.3d 1229,

1281 (11th Cir. 2007); United States v. Contorinis, 692 F.3d 136, 146 (2d Cir.

2012) (explaining that forfeiture in criminal proceedings under 18 U.S.C. § 981,

the civil forfeiture statute, is an in personam proceeding, serves no remedial

purpose, and is designed to punish the offender). Because restitution and forfeiture

serve different purposes, imposition of both does not implicate double jeopardy.

See, e.g., United States v. Venturella, 585 F.3d 1013, 1019-20 (7th Cir. 2009)

(explaining that imposing restitution payable to the victim and forfeiture in favor

of the Department of Justice for the same crime does not implicate double jeopardy

concerns because they serve different goals); see also United States v. Wittig, 575

F.3d 1085, 1096 (10th Cir. 2009) (explaining that forfeiture is a component of a

sentence rather than a distinct offense to which double jeopardy may otherwise

apply). Furthermore, given that the Social Security Administration and the

Department of Justice are distinct entities, there is no “double recovery,” as

Hernandez suggests. See, e.g., United States v. Taylor, 582 F.3d 558, 565-66 (5th

Cir. 2009) (rejecting double recovery challenge to the imposition of both

restitution and forfeiture orders where restitution went to the Federal Emergency

Management Agency and the forfeited property went to the Department of Justice).


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      Accordingly, we vacate Hernandez’s judgment and remand to the district

court with instructions to re-impose Hernandez’s sentence so that it includes both a

forfeiture money judgment and restitution order, each in the amount of $117,659.

      VACATED AND REMANDED.




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