                                                                           FILED
                           NOT FOR PUBLICATION                                APR 18 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-50080

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00449-PSG-6

  v.
                                                 MEMORANDUM *
PETER XUONG LAM, AKA Kiet,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted April 9, 2013
                               Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.

       Appellant Peter Xuong Lam was convicted of three counts of selling

illegally imported fish, in violation of 18 U.S.C. § 545; introducing misbranded

fish into interstate commerce with intent to defraud, in violation of 21 U.S.C.

§§ 331(a), (c); and conspiracy to commit these offenses, in violation of 18



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C.§ 371. Lam was sentenced to 41 months imprisonment and ordered to forfeit

267,570 pounds of fish and $12.58 million. Lam appeals the forfeiture order,

arguing that it violates the Excessive Fines Clause of the Eighth Amendment. We

have jurisdiction under 28 U.S.C. § 1291. Because the district court granted the

forfeiture order without addressing Lam’s constitutional claim, we vacate the order

and remand to the district court to determine whether the forfeiture order violates

the Eighth Amendment.

      A forfeiture is excessive under the Eighth Amendment if it is “grossly

disproportional to the gravity of a defendant’s offense.” United States v.

Bajakajian, 524 U.S. 321, 334 (1998). If a “plaintiff makes a prima facie showing

that the forfeiture may be excessive, the district court must make a determination,

based upon appropriate findings,” as to whether the fine is constitutional. United

States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987). Indeed, the district court

“has the constitutional responsibility to assure that a forfeiture proceeding . . . does

not inflict excessive punishment in violation of the eighth amendment.” United

States v. Littlefield, 821 F.2d 1365, 1368 (9th Cir. 1987). Thus, where a district

court has failed to make a finding with regard to the Eighth Amendment, we have

remanded, see Busher, 817 F.3d at 1416, so that “the district court [could] conduct

the fact-intensive inquiry necessary to determine the issue of excessiveness,”


                                            2
Wright v. Riveland, 219 F.3d 905, 918–19 (9th Cir. 2000); see also United States v.

Mackby, 261 F.3d 821, 830 (9th Cir. 2001).

      Here, Lam raised the Eighth Amendment issue before the district court, but

the district court granted the forfeiture order without addressing whether it was

constitutional. Accordingly, we vacate the order and remand to the district court for

consideration of whether the forfeiture order was unconstitutionally excessive, in

violation of the Eighth Amendment. See Busher, 817 F.2d at 1415–16; Wright, 219

F.3d at 918–19; Mackby, 261 F.3d at 830.

      VACATED and REMANDED.




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