                                PUBLISH                    F I L E D
                                                   United States Court of Appeals
                                                           Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                            FEB 6 1997
                           TENTH CIRCUIT
                                                         PATRICK FISHER
                                                               Clerk
UNITED STATES OF AMERICA,

         Plaintiff-Appellant,

v.                                         No. 96-3066

ONE PARCEL PROPERTY
LOCATED AT THE NORTH HALF
(N 1/2) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION
THIRTEEN (13) AND
GOVERNMENT LOT SEVEN (7) IN
THE SOUTHEAST QUARTER (SE
1/4) OF SECTION FOURTEEN (14),
ALL IN TOWNSHIP THIRTY-ONE
(31) SOUTH, RANGE TWO (2) EAST
OF THE 6th P.M., SUMNER
COUNTY, KANSAS, TOGETHER
WITH A 20' ROAD EASEMENT
DESCRIBED AS BEGINNING 495.00
FEET WEST OF THE SOUTHEAST
CORNER OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION
13, TOWNSHIP 31 SOUTH, RANGE
2 EAST OF THE 6th P.M., THENCE
NORTH PARALLEL TO THE EAST
LINE OF SAID QUARTER SECTION
A DISTANCE OF 1315.80 FEET,
SAID EASEMENT BEING 10.00
FEET EACH SIDE OF SAID LINE,
WITH ALL APPURTENANCES AND
IMPROVEMENTS THEREON,

         Defendant-Appellee,
 MITCHEAL EDMONSON,

              Claimant-Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF DISTRICT OF KANSAS
                        (D.C. No. 90-1363-PFK)


Submitted on the briefs:

Jackie N. Williams, United States Attorney, Annette B. Gurney, Assistant United
States Attorney, and Connie R. DeArmond, Assistant United States Attorney,
Wichita, Kansas, for Plaintiff-Appellant.

Mitcheal Edmonson, pro se.


Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.


PER CURIAM.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      The United States appeals the district court’s order granting claimant

Edmonson’s request for return of the defendant real property, forfeited pursuant

to 21 U.S.C. § 881(a)(7) as property used to commit or facilitate drug crimes. In



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1990, Edmonson was convicted of the crimes of conspiracy to possess cocaine

with intent to distribute, possession of ten kilograms of cocaine with intent to

distribute, and possession of 2.25 kilograms of marijuana with intent to distribute.

See United States v. Edmonson, 962 F.2d 1535, 1538 (10th Cir. 1992). He was

sentenced to ten years and one month in federal prison. Id. On July 17, 1992,

pursuant to the government’s motion, a decree of forfeiture was entered, and the

defendant property was subsequently sold. On February 13, 1995, claimant

Edmonson filed a motion for return of the defendant property. Based on the

undisputed facts, the district court granted claimant’s motion on January 23, 1996.

The district court subsequently entered a stay of that order pending appeal.

      In his request for return of the defendant property, claimant argued that the

forfeiture was an additional punishment for his drug convictions, prohibited by

the Double Jeopardy Clause. He also claimed that the forfeiture amounted to an

excessive fine in violation of the Eighth Amendment. The district court ordered

the defendant property returned to claimant based on the Double Jeopardy Clause.

      “We review questions of constitutional law and dispositions on summary

judgment de novo.” United States v. 829 Calle de Madero, 100 F.3d 734, 736

(10th Cir. 1996). After the district court entered its order, the Supreme Court

held that civil forfeitures under § 881(a)(7) are not punishment for purposes of

the Double Jeopardy Clause. United States v. Ursery, 116 S. Ct. 2135, 2149




                                         -3-
(1996). Therefore, we must reverse the district court’s order unless the forfeiture

ran afoul of the Eighth Amendment’s proscription against excessive fines.

      A civil in rem forfeiture under § 881(a)(7) “constitutes ‘payment to a

sovereign as punishment for some offense’ and, as such, is subject to the

limitations of the Eighth Amendment’s Excessive Fines Clause.” Austin v.

United States, 509 U.S. 602, 622 (1993)(citation omitted). A proportionality

analysis is required in civil in rem forfeiture proceedings. 829 Calle de Madero,

100 F.3d at 738. The first step in the analysis is the instrumentality test, requiring

the government to show a connection between the forfeited property and the

criminal offense. Id. “If the instrumentality test is satisfied, the forfeiture will

not be considered excessive unless the . . . claimant then shows that the forfeiture

is grossly disproportionate in light of the totality of the circumstances.” Id.

Factors relevant to the proportionality inquiry are the severity of the offense with

which the property was involved, including the extent of the claimant’s and the

property’s involvement, the nature and scope of the underlying illegal operation,

the personal benefit the claimant received, the value of the contraband involved,

and the maximum sanction authorized by Congress for the offense. Id. We also

consider the culpability of the claimant, and the harshness of the sanction

imposed, including the value of the forfeited property, its function, and other

sanctions imposed on the claimant. Id.




                                          -4-
      Applying those principles to this case, we first determine that the

undisputed facts satisfy the instrumentality test. The drugs were buried on the

defendant property, and claimant Edmonson’s fingerprint was found on a bag of

buried marijuana.

      We next consider the sanctions imposed. Claimant Edmonson was

sentenced to serve ten years in prison. The sentencing court did not impose a

punitive fine. Edmonson, 962 F.2d at 1548. The market value of the defendant

property was $47,700.

      “Against these sanctions, we consider the serious nature of the offense with

which [claimant Edmonson] and the forfeited property were involved.” United

States v. One Parcel Property Located at Lot 85, 100 F.3d 740, 744 (10th Cir.

1996). Claimant was convicted of three drug crimes involving conspiracy and

possession with intent to distribute cocaine and marijuana. Large amounts of

cocaine and marijuana were found buried on the defendant property. The

maximum fine authorized by Congress for each cocaine conviction was

$2,000,000. For the marijuana conviction, the maximum authorized fine was

$250,000. In view of the seriousness of these offenses and the sanctions imposed,

forfeiture of the defendant property is not disproportionate and does not violate

the Excessive Fines Clause.




                                         -5-
      The government’s motion to supplement the record on appeal with the

special warranty deed reflecting the sale of the defendant property is granted.

The judgment of the United States District Court for the District of Kansas is

REVERSED and REMANDED for entry of an order consistent with this opinion.

The mandate shall issue forthwith.




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