     Case: 10-20216 Document: 00511491463 Page: 1 Date Filed: 05/27/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           May 27, 2011

                                      No. 10-20216                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellant
v.

HUBER FRANCISCO SIERRA, also known as Gallero

                                                  Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:02-CR-690-1


Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       Huber Francisco Sierra was convicted, pursuant to his guilty plea, of
one count of conspiring to possess with intent to deliver five kilograms or
more of a mixture and substance containing a detectable amount of cocaine
(Count One) and one count of conspiring to launder monetary instruments
(Count Three). The indictment also contained a notice of criminal forfeiture.
       In his plea agreement, Sierra admitted that he had derived twenty
million dollars in United States currency from the offenses of conviction, and

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR . R. 47.5.4.
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he agreed, inter alia, not to oppose “a final order of forfeiture consisting of a
personal money judgment against the defendant in the amount of $20 million
in United States currency.”
      At Sierra’s rearraignment, held in April 2003, the district court granted
the Government’s motion for entry of a preliminary order of forfeiture. In
July 2003, the district court granted the Government’s motion to amend the
preliminary order of forfeiture. The amended order reflected that certain real
property, identified as a lot in the Waterbrook West subdivision, was forfeited
to the United States. In December 2003, the district court granted the
Government’s motion to amend the first amended order of forfeiture. The
later order included additional real property, funds on deposit in bank
accounts, and vehicles.
      Sierra's wife, Sanjuanna Quintanilla Sierra, and Joseph Kenneth
Morris, who identified himself as Sierra's business partner, moved for a
hearing to adjudicate the validity of their interests in the property the
Government sought to substitute as assets to satisfy the forfeiture judgment
against Sierra. The Government negotiated settlement agreements with
Morris and Mrs. Sierra, which the district court approved in July 2006 and
May 2007, respectively.
      The Government moved in May 2007 for entry of a final judgment of
forfeiture. The district court, Judge Gilmore, granted the motion and entered
a final judgment of forfeiture by order dated May 29, 2007. The order
included the personal money judgment in the amount of twenty million
dollars. The case was subsequently transferred to Judge Hughes.
      Sierra's sentencing hearing was conducted in March 2010, Judge
Hughes presiding. During the sentencing hearing, the Assistant United
States Attorney brought the final judgment of forfeiture signed by Judge

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Gilmore to the attention of Judge Hughes and requested that the district
court "orally announce that [the final judgment of forfeiture] is part of the
sentence."
      The sentencing court refused to include the monetary forfeiture
judgment in the sentence, instead stating that "[t]he final judgment of
forfeiture will be the property, period."
      The district court sentenced Sierra to concurrent 120-month terms of
imprisonment on Count One and Count Three and to a three-year term of
supervised release on both counts. The written judgment issued by the
district court provided that Sierra was to forfeit his interest in the property
located in the Waterbrook West subdivision. No additional forfeited property
was listed, and the criminal judgment issued by the district court did not
include a monetary forfeiture judgment. The Government filed a timely
notice of appeal. Sierra has neither appealed nor filed any brief.
      The Government contends that the district court erred by not ordering
the forfeiture money judgment as part of Sierra's sentence and including it in
the criminal judgment.
      The judgment of conviction is VACATED and the case is REMANDED
for entry of a corrected judgment of conviction which includes the May 29,
2007 final judgment of forfeiture.
                         VACATED and REMANDED




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