                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0256p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                       X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                        -
                                                        -
                                                        -
                                                            No. 04-5047
           v.
                                                        ,
                                                         >
 JOYCE C. “JOY” HALL,                                   -
                               Defendant-Appellant. -
                                                       N
                        Appeal from the United States District Court
                      for the Middle District of Tennessee at Nashville.
                  No. 01-00004—Robert L. Echols, Chief District Judge.
                                          Submitted: April 28, 2005
                                      Decided and Filed: May 6, 2005*
                 Before: COLE and SUTTON, Circuit Judges; BARZILAY, Judge.**
                                             _________________
                                                   COUNSEL
ON BRIEF: Joseph F. Edwards, EDWARDS & EDWARDS, Cookeville, Tennessee, for Appellant.
William Cohen, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        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.




         *
          This decision was originally issued as an “unpublished decision” filed on May 6, 2005. On May 31, 2005, the
court designated the opinion as one recommended for full-text publication.
         **
          The Honorable Judith M. Barzilay, Judge for the United States Court of International Trade, sitting by
designation.


                                                         1
No. 04-5047            United States v. Hall                                                       Page 2


                                                    I.
        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 to 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 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
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
No. 04-5047           United States v. Hall                                                      Page 3


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
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
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
No. 04-5047           United States v. Hall                                                    Page 4


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 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, 403 F.3d 836, 840–41 (7th Cir. 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.
