                                                                                  FILED
                                                                      United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                      Tenth Circuit

                                 FOR THE TENTH CIRCUIT                        May 24, 2017
                             _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                          No. 16-1388
                                                  (D.C. No. 1:14-CV-02823-KMT)
$112,061.00 IN UNITED STATES                                 (D. Colo.)
CURRENCY,

       Defendant.

------------------------------

JAMIE SANCHEZ,

       Claimant - Appellant.
                        _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
                  _________________________________

        In this in rem civil forfeiture of $112,061.00, claimant Jamie Sanchez appeals

the summary judgment granted to the government. He claimed to be the owner of the

currency that law enforcement officers found in his residence. The action was filed


        *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
pursuant to 21 U.S.C. § 881(a)(6), which authorizes forfeiture of currency used in

illicit drug trafficking.

        I.    Background

        Mr. Sanchez filed a Verified Claim to the currency, as authorized by 18 U.S.C.

§ 983(a)(4)(A) and Rule G(5)(a) of the Supplemental Rules for Admiralty or

Maritime Claims and Asset Forfeiture Actions. He then filed a Motion to Apply the

Exclusionary Rule seeking to exclude the evidence, including the subject currency,

obtained pursuant to a search warrant for his residence. The district court1 observed

that a Colorado state court had addressed the same issue in its criminal proceedings

against Mr. Sanchez. The state court ruled that although the search warrant was an

impermissible general warrant, the good-faith exception to the warrant requirement

applied. Accordingly, the state court denied Mr. Sanchez’s motion to suppress the

evidence. The district court applied the doctrine of issue preclusion, also known as

collateral estoppel, and denied the motion to suppress the evidence in the present

case.

        The government filed a motion for summary judgment asserting the following

facts: (1) drug-enforcement officers purchased cocaine from Mr. Sanchez on two

occasions in 2013; (2) at those times, Mr. Sanchez was on parole from a drug

conviction; (3) during a parole visit to Mr. Sanchez’s residence on May 15, 2014,

officers found a large sum of cash and two handguns in a bedside drawer; (4) because


        1
        The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
                                           2
Mr. Sanchez was prohibited by the conditions of his parole from possessing weapons,

upon discovery of the handguns the parole officers contacted the police department

who arranged for a search warrant; (5) in executing the search warrant officers found

additional cash underneath a sofa and in the trunk of a car in the garage; (6) the total

amount of currency located and seized from Mr. Sanchez’s residence was

$112,061.00 and is the defendant currency herein; (7) the search also revealed

kilo-sized packaging material and lacquer thinner (drug-packaging materials);

(8) Mr. Sanchez entered a guilty plea in Colorado state court to unlawful distribution

based on the 2013 drug sales; and (9) Mr. Sanchez’s annual salary for the years 2011

through 2014 did not exceed $24,000 and he had declined to answer discovery

regarding other sources of income. Based on these facts, the government alleged that

the defendant currency was the proceeds from Mr. Sanchez’s unlawful distribution of

controlled substances.

      Mr. Sanchez responded to the government’s summary-judgment motion with

only a single paragraph reiterating his position that the district court “was incorrect in

determining the doctrine of Collateral Estoppel precluded his Motion to Apply the

Exclusionary Rule.” Aplee. Supp. App. at 96. After analyzing the undisputed factual

allegations in light of the applicable law, the district court granted summary

judgment to the government.

      II.    Applicable Law

      The government had the burden “to establish a ‘substantial connection

between the property and [a criminal] offense.’” United States v. $252,300.00 in

                                            3
U.S. Currency, 484 F.3d 1271, 1273 (10th Cir. 2007) (quoting 18 U.S.C.

§ 983(c)(3)). The government contended the currency was traceable to the illegal

sale of narcotics and Mr. Sanchez was a drug dealer with past drug convictions and

insufficient legitimate income to establish lawful ownership of the currency.

      “We review de novo the district court’s grant of summary judgment.” United

States v. 16328 S. 43rd E. Ave., 275 F.3d 1281, 1284 (10th Cir. 2002). Summary

judgment shall be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “When we apply this standard, we examine the record and any

reasonable inferences drawn therefrom in the light most favorable to the nonmoving

party.” 16328 S. 43rd E. Ave., 275 F.3d at 1284. If the opposing party “fails to

properly address another party’s assertion of fact,” a district court may consider the

fact undisputed and “grant summary judgment if the motion and supporting

materials—including the facts considered undisputed—show that the movant is

entitled to it.” Fed. R. Civ. P. 56(e)(2) & (3). “Of course, in granting summary

judgment based upon a failure to respond, a district court must still determine that

summary judgment is appropriate.” Perez v. El Tequila, LLC, 847 F.3d 1247, 1254

(10th Cir. 2017).

      III.   Analysis

      The district court conducted the required summary-judgment analysis. In

opposing summary judgment merely by relying on the same arguments made in his

Motion to Apply the Exclusionary Rule, Mr. Sanchez failed to dispute the

                                           4
government’s asserted facts. This is fatal to his case. See Kilcrease v. Domenico

Transp. Co., 828 F.3d 1214, 1226 (10th Cir. 2016) (affirming summary judgment

because nonmoving party failed to dispute moving party’s material factual

assertions). We conclude that based on the undisputed facts, the government was

entitled to judgment as a matter of law.

      Although we affirm the summary judgment due to Mr. Sanchez’s failure to

controvert the material facts, we nevertheless consider his challenge to the district

court’s order denying the Motion to Apply the Exclusionary Rule. The district court

held that the doctrine of issue preclusion barred relitigation of the state court’s

decision to deny Mr. Sanchez’s suppression motion. The preclusive effect of a state

court judgment is governed by state law. Marrese v. Am. Acad. of Orthopaedic

Surgeons, 470 U.S. 373, 380 (1985). Under Colorado law, the doctrine of issue

preclusion prohibits relitigation of an issue when:

      (1) The issue precluded is identical to an issue actually litigated and
      necessarily adjudicated in the prior proceeding; (2) The party against whom
      estoppel was sought was a party to or was in privity with a party to the prior
      proceeding; (3) There was a final judgment on the merits in the prior
      proceeding; and (4) The party against whom the doctrine is asserted had a
      full and fair opportunity to litigate the issues in the prior proceeding.
McNichols v. Elk Dance Colo., LLC (In re Water Rights of Elk Dance Colo., LLC),

139 P.3d 660, 667 (Colo. 2006) (en banc) (internal quotation marks omitted).

      Mr. Sanchez contends that issue preclusion does not apply because the charges

arising from the search of his residence were dropped, so he was unable to appeal the

suppression ruling. He avers, without citation to the record, that the charges to which


                                            5
he entered a guilty plea were unrelated to the charges arising from the search of his

residence. Consequently, he argues, he could not have appealed the state court’s

order denying his motion to suppress.

      The record reflects, however, that Mr. Sanchez was charged in state court in a

single proceeding, case number 14CR2225, with two counts of distribution of

cocaine based on 2013 cocaine sales, one count of possession of a weapon by a

previous offender based on the 2014 search of his residence, and three habitual

criminal counts. Aplee. Supp. App. at 14-16. The record further shows that

Mr. Sanchez’s plea agreement in state court case number 14CR2225 included a

provision whereby the prosecution agreed to dismiss counts two through six in

exchange for Mr. Sanchez’s guilty plea to count one. Id. at 69-70. The order

denying the motion to suppress bears the same case number. Aplt. App. at 47. Thus,

it appears that after the state court denied his suppression motion, Mr. Sanchez

entered a guilty plea to count one and the remaining counts were dismissed. If this

was not the case, it was incumbent on Mr. Sanchez to provide, and cite to, the

documents supporting his position. See United States v. Brody, 705 F.3d 1277, 1281

(10th Cir. 2013) (rejecting appellate claims because appellant failed to provide a

sufficient record); 10th Cir. R. 10.3(A) (“Counsel must designate a record on appeal

that is sufficient for considering and deciding the appellate issues.”).

      By entering into the plea agreement Mr. Sanchez “forfeit[ed] his right to

appellate review of the suppression of evidence,” Neuhaus v. People, 289 P.3d 19, 23

(Colo. 2012) (en banc). In addition, the plea agreement includes a waiver of “the

                                            6
right to appeal any conviction.” Aplee. Supp. App. at 71. Mr. Sanchez cannot now

be heard to complain that he was denied an opportunity for meaningful appellate

review of his suppression motion. Cf. Carpenter v. Young ex. rel Young, 773 P.2d

561, 568 (Colo. 1989) (en banc) (holding summary judgment was entitled to

preclusive effect because all criteria were met including the right to review, even

though the parties “waived any right to such review when they entered into [a]

settlement agreement”).

      IV.    Conclusion

      The district court’s judgment is affirmed.




                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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