                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0365n.06
                               Filed: May 6, 2005

                                            No. 04-5047

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
JOYCE C. “JOY” HALL,                               )   MIDDLE DISTRICT OF TENNESSEE
                                                   )
        Defendant-Appellant.                       )




        Before: COLE and SUTTON, Circuit Judges; BARZILAY, Judge.*


       SUTTON, Circuit Judge. On July 22, 2003, a jury convicted Joy Hall of 23 counts of bank

fraud and money laundering. The district court sentenced Hall to a 70-month prison term, ordered

her to pay $571,496.81 in restitution and ordered her to forfeit $686,202.17 in illegal proceeds. Hall

challenges her prison sentence and forfeiture order on Sixth Amendment grounds. We vacate her

sentence of imprisonment and remand for resentencing, but uphold the forfeiture order.




        *
         The Honorable Judith M. Barzilay, Judge for the United States Court of International Trade,
sitting by designation.
No. 04-5047
United States v. Hall

                        I.




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 United States v. Hall

        In a conspiracy spanning seven years (1993–2000), Hall and her co-defendant Jimmy Lee

Birdwell, a Vice President and loan officer of Citizens Bank of Gainsboro, submitted numerous false

loan applications to Citizens Bank. Others joined the conspiracy, and together Hall and her co-

defendants agreed to buy, sell and transfer real property with the intent to defraud the bank. In

furtherance of the conspiracy, the defendants (1) forged property appraisals to inflate the value of

property used as collateral for loans, (2) concealed the names of the true property owners and placed

the property in the names of different individuals without their consent, (3) inflated the value of assets

and earnest money that individuals presented on their loan applications and (4) advised individuals

seeking loans from the bank how to inflate the value of their assets and falsify their loan applications

to ensure approval.


        On October 22, 2001, police arrested Hall, and on July 22, 2003, a jury found her guilty of

23 counts of bank fraud and money laundering. The government estimated the amount of criminal

forfeiture to be $686,202.17, and the jury agreed, finding “by a preponderance of the evidence that

the amount of $686,202.17 constitutes or is derived from proceeds obtained directly or indirectly, as

a result of the bank fraud.” JA 136.


        On October 20, 2003, the district court sentenced Hall. Relying heavily on the presentence

report and applying the Guidelines by their then-mandatory terms, the district court calculated Hall’s

sentence as follows. In accordance with § 2B1.1(a)(2) of the Guidelines, which concerns offenses

involving fraud and deceit, the court started with a base offense level of 6. Moving to the specific

offense characteristics, it added 14 levels because the estimated loss to the bank from the offense was

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United States v. Hall

greater than $400,000 but less than $1,000,000. See U.S.S.G. § 2B1.1(b)(1)(H). On top of this

adjustment, the court added three additional enhancements: a two-level enhancement because Hall

was convicted under 18 U.S.C. § 1956 (laundering of monetary instruments), see U.S.S.G. §

2S1.1(b)(2)(B); a three-level enhancement for Hall’s role as a manager or supervisor in the offense,

see U.S.S.G. § 3B1.1(b); and a two-level enhancement for obstruction of justice due to a finding that

she committed perjury during her trial testimony, see U.S.S.G. § 3C1.1. All told, these adjustments

gave Hall an offense level of 27, and when coupled with a Criminal History Category of I, it

generated a sentencing range of 70 to 87 months. The district court sentenced Hall to the low end

of the range (70 months) and ordered her to make restitution in the amount of $571,496.81 and to

forfeit the $686,202.71 that the jury found to be the proceeds from her illegal activity. At sentencing,

Hall objected to the district court’s loss determination and its application of the enhancement

provisions but did not register any constitutional objections to her sentence.


                                                  II.


       Hall first challenges her prison sentence, claiming that it violates her rights under the Sixth

Amendment as interpreted in United States v. Booker, 125 S. Ct. 738 (2005). Because Hall did not

raise a Sixth Amendment challenge below, she may obtain relief on appeal only if she satisfies the

requirements of the plain-error test. See United States v. Olano, 507 U.S. 725, 731 (1993); see also

Fed. R. Crim. P. 52(b). Under the plain-error test, we may vacate Hall’s sentence if there was an “(1)

error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error

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United States v. Hall

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v.

United States, 520 U.S. 461, 466–67 (1997) (quotations and citations omitted).


       In the aftermath of United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), which applies the

plain-error test to core Booker claims arising from increased sentences premised on fact findings

made by the district court, there can be little doubt that Hall may raise a Sixth Amendment challenge

to her sentence. Cf. United States v. Barnett, 398 F.3d 516 (6th Cir. 2005). The district court gave

Hall the lowest possible sentence of imprisonment and expressed some reservations even about that

in view of her age (61) and poor mental health. But for its belief that the Guidelines were mandatory,

it is well within the realm of possibility that the district court would have imposed a sentence below

the sentencing range called for by the Guidelines—which is all that Oliver and Barnett require. See

Oliver, 397 F.3d at 380; Barnett, 398 F.3d at 528; see also United States v. Gonzales, No. 03-4279,

2005 U.S. App. LEXIS 3154, at *6 (6th Cir. Feb. 22, 2005) (noting that the inference that a district

court might impose a lesser sentence under non-mandatory guidelines is “particularly strong” where

the district court “sentenced the defendant at the bottom of the Guideline range”).


                                                 III.


       Hall next argues briefly that the prosecution violated her Sixth Amendment rights because

the jury imposed a criminal forfeiture against her on the basis of the preponderance-of-the-evidence

standard rather than the beyond-a-reasonable-doubt standard. In a four-sentence argument bereft of

any case citations, Hall maintains that “since forfeiture is punishment, the verdict violated the



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 United States v. Hall

defendant’s right to have the charge decided by a jury beyond a reasonable doubt.” Hall Br. at 13.

We disagree, and so has the United States Supreme Court.


        In Libretti v. United States, 516 U.S. 29 (1995), the defendant argued that he enjoyed a

constitutional right to have a jury decide the extent of his criminal forfeiture. In rejecting the

argument, the Court explained that “the right to a jury verdict on forfeitability does not fall within

the Sixth Amendment’s constitutional protection” because criminal forfeiture concerns sentencing,

not the elements of a crime. Id. at 49. The Court disagreed with Libretti’s characterization of

forfeiture as a “hybrid that shares elements of both a substantive charge and a punishment imposed

for criminal activity,” id. at 40, and refused to put the forfeitability determination on a par with a jury

determination of guilt or innocence, holding that any right to a “jury determination of forfeitability

is merely statutory in origin,” id. at 49; see Fed. R. Crim. P. 32.2(b)(4) (2004) (current rule requiring

jury determination as to whether the “government has established the requisite nexus between the

property and the offense committed by the defendant” upon the request of either party); Fed. R. Crim.

P. 31(e) (1995) (former rule requiring special verdict by jury ascertaining the extent of a forfeiture).


        In the aftermath of Apprendi v. New Jersey, 530 U.S. 466 (2000), we were asked to consider

whether the Sixth Amendment as interpreted in Libretti still permitted courts to make criminal

forfeiture decisions using a preponderance standard. In United States v. Corrado, 227 F.3d 543 (6th

Cir. 2000), we rejected the argument that “the jury must decide the extent of forfeiture or that the

district court, as the agreed trier of fact, must make factual determinations based on the ‘beyond a

reasonable doubt’ standard,” 227 F.3d at 551, reasoning that Apprendi did not affect Libretti’s

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United States v. Hall

holding that criminal forfeitures are part of the sentence alone and as such “[t]here is no requirement

under Apprendi . . . that the jury pass upon the extent of a forfeiture,” id. at 550. To our knowledge,

every other circuit to consider the issue after Apprendi has reached the same conclusion. See United

States v. Keene, 341 F.3d 78, 86 (1st Cir. 2003); United States v. Gasanova, 332 F.3d 297, 301 (5th

Cir. 2003); United States v. Shyrock, 342 F.3d 948, 991 (9th Cir. 2003); United States v. Najjar, 300

F.3d 466, 485–86 (4th Cir. 2002); United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002); United

States v. Cabeza, 258 F.3d 1256, 1257 (11th Cir. 2001) (per curiam).


       Nor do we see anything in Booker, which extended Apprendi to the Sentencing Guidelines,

that alters this conclusion. The Guidelines do not address forfeiture at all except to say that

“[f]orfeiture is to be imposed upon a criminal defendant as provided by statute.” See U.S.S.G.

§ 5E1.4. And while Booker (and Blakely v. Washington, 124 S. Ct. 2531 (2004), before that)

redefined what constitutes a statutory maximum for Sixth Amendment purposes, the forfeiture statute

at issue in this case (and, we suspect, most forfeiture statutes) does not contain a statutory maximum.

It instead says that a court shall order the defendant to forfeit “any property constituting, or derived

from, proceeds the person obtained directly or indirectly, as the result of such violation.” 18 U.S.C.

§ 982(a)(2); see Vera, 278 F.3d at 673 (“Determining the forfeitable proceeds of an offense does not

come within Apprendi’s rule, because there is no ‘prescribed statutory maximum’ and no risk that

the defendant has been convicted de facto of a more serious offense.”). The absence of a statutory

maximum or any sort of guidelines system indicates that forfeiture amounts to a form of

indeterminate sentencing, which has never presented a Sixth Amendment problem. Like the Seventh



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United States v. Hall

Circuit, we fail to see how Booker requires us to overturn our prior precedent in this area (Corrado)

or allows us to turn our back on the Supreme Court’s prior ruling in this area (Libretti). See United

States v. Tedder, ___ F.3d. ___ , No. 03-3345, 2005 U.S. App. LEXIS, at *10–11 (7th Cir. Apr. 6,

2005) (holding post-Booker that the Sixth Amendment does not apply to forfeitures). Hall’s effort

to extend Apprendi and Booker to criminal forfeitures, accordingly, is rejected.


                                                IV.


       For these reasons, we affirm the judgment except with regard to Hall’s term of imprisonment,

which we remand to the district court for resentencing.




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