                                                                              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                           NOT FOR PUBLICATION                                OCT 05 2012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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