                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 14-2612
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Angelo Peter Efthimiatos

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                             Submitted: February 9, 2015
                              Filed: February 25, 2015
                                   [Unpublished]
                                   ____________

Before BYE, BRIGHT, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

       Angelo Efthimiatos pled guilty to one count of conspiracy to manufacture,
distribute, or possess with the intent to distribute 50 kilograms or more of marijuana
in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(C), and 846, and one count of
possession with the intent to distribute marijuana in violation of §§ 841(a)(1) and
841(b)(1)(D), for his role in transporting marijuana from California to Connecticut
in an airplane on multiple occasions. The district court1 sentenced Efthimiatos to 57
months in prison—the bottom of the Guidelines range of 57-71 months. On appeal,
Efthimiatos argues that the district court erred in (1) determining the drug quantity
attributable to him for the purposes of sentencing, (2) ordering restitution for damage
he caused to a rented airplane, and (3) ordering the forfeiture of his two airplanes.

        Except for the issue of forfeiture which relates to a mixed question of law and
fact, this appeal otherwise raises only fact questions pertaining to the findings made
by the district court. On all of the above issues, we affirm the district court both as
to the court’s findings of fact and its application of its findings to the applicable law
in the forfeiture proceedings.2 There are no complex legal issues raised in this appeal.

I.    Background

       On February 17, 2013, Efthimiatos landed an airplane in Livermore, California,
that he had rented from Jack Cooper. The following day, Efthimiatos fueled the plane
using several prepaid gift cards he had purchased with his brother, Michael. That
same day, surveillance video depicted Efthimiatos and his brother loading several
large duffel bags into the plane. Efthimiatos departed the airport in the early morning
of February 19 but was ultimately forced to land in Washington, Iowa, due to oil
pressure problems.

      Law enforcement officials in Iowa investigated the landing and determined that
Efthimiatos could not produce documents showing the airworthiness of the plane.
Additionally, a dog sniff of the plane resulted in a positive alert indicating the
presence of controlled substances.

      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
      2
          We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

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       Law enforcement interviewed Efthimiatos who stated that he believed the
duffel bags on the plane contained marijuana or cocaine. He admitted to transporting
drugs in flight half a dozen times over the prior year. He also told law enforcement
that he had arranged to return to California in April 2013 to retrieve 200 pounds of
marijuana and transport it to Connecticut. He expected to net $50,000 for the
transport. Following the interview, Efthimiatos consented to a search of the plane,
during which law enforcement recovered 55.8 pounds (25.31 kilograms) of
marijuana.

       On August 22, 2013, a superseding indictment was filed charging Efthimiatos
with one count of conspiracy to manufacture, distribute, or possess with the intent to
distribute 50 kilograms or more of marijuana in violation of 21 U.S.C §§ 841(a)(1),
841(b)(1)(C), and 846, as well as one count of possession with intent to distribute
marijuana in violation of §§ 841(a)(1) and 841(b)(1)(D). The Government also
sought forfeiture of various property owned by Efthimiatos, including two airplanes.
Efthimiatos pled guilty to the charges in December 2013 but contested the forfeiture
of the planes. The district court held a hearing and ultimately ordered the forfeiture
of the planes over Efthimiatos’s objection.

       At sentencing, the district court calculated an advisory Guidelines range of 57-
71 months based in part on its finding that a drug quantity of 100 to 400 kilograms
of marijuana was attributable to Efthimiatos as part of the conspiracy. The district
court sentenced Efthimiatos to concurrent sentences of 57 months for each count and
ordered restitution in the amount of $5,000 for damage Efthimiatos caused to the
plane he had rented from Cooper. Efthimiatos appeals.




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II.   Discussion

      A.     Drug Quantity Finding

      Efthimiatos first argues that the district court clearly erred in attributing 100
to 400 kilograms of marijuana to him at sentencing. “[D]rug quantity and identity
determinations are factual findings, which we review for clear error, applying the
preponderance-of-the-evidence standard.” United States v. Walker, 688 F.3d 416,
420 (8th Cir. 2012) (citation omitted) (internal quotation marks omitted).

       The district court’s drug quantity determination is not clearly erroneous.
Efthimiatos admitted to law enforcement that he planned to transport 200 pounds of
marijuana from California to Connecticut in April 2013. This admission is persuasive
evidence that the 200 pounds of marijuana was a reasonably foreseeable drug quantity
within the scope of the conspiracy. See United States v. Allmon, 500 F.3d 800, 804
(8th Cir. 2007) (“In a drug conspiracy, a defendant is held responsible for all
reasonably foreseeable drug quantities that were within the scope of the criminal
activity that he jointly undertook.” (citation omitted) (internal quotations marks
omitted)). The 200 pounds of marijuana that Efthimiatos planned to transport in
addition to the 55 pounds of marijuana that law enforcement recovered in Iowa places
the drug quantity within the 100 to 400 kilogram range. Based on the record before
us, a preponderance of the evidence supports the district court’s drug quantity
determination.

      B.     Restitution

      Efthimiatos next argues that the district court erred by ordering him to pay
$5,000 in restitution for damage he caused to the rented plane. Specifically,
Efthimiatos argues that the damage was not proximately caused by his criminal
conduct as required by the restitution statute, 18 U.S.C. § 3663(a)(2). The district

                                         -4-
court concluded that the restitution represented the reasonable approximation of “the
damage that was caused by the . . . unscheduled landing” in Iowa and the expected
manner in which Efthimiatos transported the marijuana in flight. The district court
specifically noted that this damage was “a proximate harm that was suffered as a
result of the criminal activity.” Whether the evidence establishes proximate cause
with respect to restitution is a question of fact reviewed under a clear error standard.
United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007); United States v.
De La Fuente, 353 F.3d 766, 772 (9th Cir. 2003).

       In awarding restitution, the district court relied on the testimony of Jack Cooper
regarding the damage to his plane. Cooper testified that grass stains on the bottom
of the plane, coupled with the damage to the airframe and one tire, indicated that the
plane had undergone “a pretty rough landing.” Cooper also testified that an
inspection of the plane revealed that pistons in two of the engine chambers had been
“burnt” and were not operational. According to Cooper, this damage, in addition to
the large amount of oil that Efthimiatos purchased for the trip, suggest that
Efthimiatos flew excessive distances which in turn created too much engine heat.

       In light of Cooper’s testimony, it was not unreasonable for the district court to
infer that Efthimiatos flew the plane excessive distances in order to deliver the
marijuana as quickly as possible. In this sense, there exists a close nexus between
Efthimiatos’s conduct of possessing the drugs and his actions that resulted in damage
to the plane. Efthimiatos’s conduct “created the circumstances under which the harm
or loss occurred.” United States v. Hackett, 311 F.3d 989, 993 (9th Cir. 2002)
(citation omitted) (internal quotation marks omitted). The district court determined
that damage to the airplane was proximately caused by Efthimiatos’s criminal
conduct. This conclusion is supported by the record.




                                          -5-
      C.     Forfeiture of Efthimiatos’s Airplanes

       Efthimiatos last argues that the district court erred by concluding that his 1980
Beech single-engine airplane (the “single-engine plane”) and his 1969 Beech twin-
engine airplane (the “twin-engine plane”) were forfeitable. “On appeal of a forfeiture
order, we review the district court’s factual findings for clear error. Whether those
facts establish that forfeiture is proper is a mixed question of law and fact that we
review de novo.” United States v. Hull, 606 F.3d 524, 526-27 (8th Cir. 2010).

       The district court ordered the forfeiture of Efthimiatos’s planes under 21 U.S.C.
§ 853(a)(2), which permits criminal forfeiture of “any of the person’s property used,
or intended to be used, in any manner or part, to commit, or to facilitate the
commission of,” the crime. The burden is on the government to establish the
forfeitability of property by a preponderance of the evidence. United States v. Bieri,
21 F.3d 819, 822 (8th Cir. 1994); see United States v. Martin, 662 F.3d 301, 307 (4th
Cir. 2011).

       With respect to the single-engine plane, the district court concluded that a
preponderance of the evidence shows that Efthimiatos used the plane in October 2012
for drug trafficking. In so ruling, the district court relied on the following facts:

      Evidence introduced during the forfeiture hearing showed Defendant
      purchased the single engine plane on September 28, 2012, using
      $38,000 in cash. This purchase occurred immediately before
      Defendant’s admitted October 2012 drug trip. Flight records show the
      newly purchased single engine plane was flown to California in October
      2012. During the same week Defendant flew his plane to California, his
      co-conspirator brother, Michael Efthimiatos, who resides in
      Connecticut, was also in a nearby California city. Michael Efthimiatos
      was involved with Defendant in Defendant’s drug activities.



                                          -6-
(May 5, 2014 Prelim. Forf. Order, p. 5-6) (citations and footnote omitted). Those
facts, which are not challenged by Efthimiatos, are sufficient to establish by a
preponderance of the evidence that Efthimiatos used his single-engine plane in
October of 2012 to transport drugs from California to the East Coast. Accordingly,
we affirm the district court’s forfeiture of the single-engine plane.

       With respect to the twin-engine plane, the district court determined that
Efthimiatos used a different plane each time he transported drugs via flight, wanted
to obtain a more efficient plane to transport drugs, admitted that he planned to
transport 200 pounds of marijuana in April 2013, and told Cooper that he no longer
needed to rent Cooper’s plane once the twin-engine plane was airworthy. Those facts
indicate that Efthimiatos intended to use the twin-engine plane for future drug
trafficking as found by the district court. Given these findings, the district court’s
conclusion of forfeitability was not erroneous.

III.   Conclusion

       Accordingly, we affirm on all issues.

                        _____________________________




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