           Case: 15-12977   Date Filed: 10/18/2017   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12977
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:14-cr-00123-CEH-MAP-2



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

ENESHIA CARLYLE,

                                                       Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (October 18, 2017)

Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Eneshia Carlyle appeals the forfeiture money judgment entered

against her on the ground that she cannot be held jointly and severally liable for the

entire amount of proceeds from a wire-fraud scheme, and that even if she could be

held jointly and severally liable, the forfeiture money judgment violates the

Excessive Fines Clause of the Eighth Amendment.

      While Defendant’s appeal was pending in our Court, the Supreme Court

decided Honeycutt v. United States, 137 S. Ct. 1626 (2017). Addressing a

forfeiture statute related to drug crimes, the Supreme Court rejected joint and

several liability, holding that a coconspirator-defendant can be liable only for the

property he acquired from the criminal activity. 137 S. Ct. at 1635. Given that

decision and the Government’s concession that the district court erred by holding

Defendant jointly and severally liable for the entire amount of the wire-fraud

proceeds, we vacate the forfeiture money judgment entered by the district court

and remand for that court to reconsider its forfeiture ruling in light of Honeycutt.

I.    BACKGROUND

      Defendant and her husband, James Cobb, were indicted for one count of

conspiracy to commit mail and wire fraud, four counts of wire fraud, and four

counts of aggravated identity theft. These counts arose out of a scheme in which

the couple used stolen identities to file fraudulent tax returns and receive the tax

refunds for their personal benefit. Defendant signed a plea agreement in which she


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pled guilty to one count each of wire fraud and aggravated identity theft, though

she did not plead guilty to the conspiracy charge. The agreement included a

provision that Defendant agreed to a forfeiture money judgment of “not less than

$610,000.00, representing the amount of proceeds obtained as a result of the

scheme.” 1 Defendant also agreed to waive any challenges to the forfeiture,

including that the forfeiture constituted an excessive fine. The district court

accepted Defendant’s guilty pleas and adjudged her guilty of both counts.

       The Government filed a motion for a forfeiture money judgment against

Defendant, arguing that it was entitled to “$1,820,759.00, representing the

proceeds obtained as a result of the wire fraud scheme to which she pled guilty.”

The Government stated that Defendant would be held jointly and severally liable

with Cobb for the full amount of the judgment. Defendant made several objections

to the Government’s motion, including that she had only agreed to a forfeiture

money judgment amount of $610,000, and that the amount the Government was

seeking violated the Eighth Amendment’s Excessive Fines Clause because it was

grossly disproportionate to her offenses and the amount contemplated in the plea

agreement.

       The district court found that “at least $1,820,759.00 in proceeds was

obtained from the wire fraud scheme to which [Defendant] pled guilty,” and,

1
  At the time Defendant signed the agreement, the Government knew the scheme had brought in
at least $610,000, but did not yet know the full amount of the proceeds of the scheme.
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holding Defendant jointly and severally liable with Cobb, granted the

Government’s motion for a forfeiture money judgment in the greater amount.2

Defendant was also sentenced to 138 months’ imprisonment and 3 years’

supervised release.

       After filing a notice of appeal of the conviction, forfeiture order, and

sentence, Defendant’s appointed counsel filed a motion to withdraw as counsel and

submitted an accompanying brief, pursuant to Anders v. California, 386 U.S. 738

(1967), arguing that there were no issues of arguable merit for appeal. This Court

denied counsel’s Anders motion and ordered further briefing as to whether the

forfeiture money judgment violated the Eighth Amendment’s Excessive Fines

Clause.

II.    DISCUSSION

       Whether a forfeiture order is excessive under the Eighth Amendment is an

issue we review de novo. United States v. Seher, 562 F.3d 1344, 1370 (11th Cir.

2009). Forfeiture orders imposed at the end of a criminal proceeding solely

because of a conviction are considered fines subject to the Eighth Amendment’s




2
  In Cobb’s appeal, this Court affirmed the district court’s finding that the amount paid out by
the IRS was $1,820,759. United States v. Cobb, 842 F.3d 1213, 1220–21 (11th Cir. 2016).
Defendant notes in her reply brief that she accordingly abandons her challenges to the factual
basis for calculating $1,820,759 as the overall loss calculation of the scheme.


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prohibition of excessive fines. 3 Id. at 1371. “A forfeiture order violates the

Excessive Fines Clause if it ‘is grossly disproportional to the gravity of a

defendant's offense.’” Id. (quoting United States v. Bajakajian, 524 U.S. 321, 337

(1998)). Whether a particular forfeiture is “grossly disproportional” is determined

through looking principally at three factors: “(1) whether the defendant falls into

the class of persons at whom the criminal statute was principally directed; (2) other

penalties authorized by the legislature (or the Sentencing Commission); and (3) the

harm caused by the defendant.” Id. (quoting U.S. v. Browne, 505 F.3d 1229, 1281

(2007)). The impact of the fine on the individual defendant is not considered, and

it is strongly presumed that the forfeiture is constitutional if the forfeiture amount

is within the rage of fines prescribed by Congress. Id.

       The constitutionality of the particular forfeiture amount is not our immediate

concern, however. Instead, we focus on whether the forfeiture imposed by the

district court complied with the appropriate statutory authority. Defendant

contends that the district court erred in holding her jointly and severally liable with

Cobb. Before the district court, Defendant argued that she played a lesser role in

the offense than did her husband and that she had only agreed to a forfeiture

amount of $610,000 in her plea agreement.


3
  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII.


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       Since the filing of Defendant’s reply brief, the Supreme Court issued its

decision in Honeycutt, and Defendant has filed supplemental authority, relying on

that decision to support her argument that the district court erred in applying joint

and several liability as to the forfeiture imposed.4 In Honeycutt, the Supreme

Court concluded that the statutory language of 21 U.S.C. § 853—which addresses

forfeiture in the context of drug crimes—limits forfeiture under that provision to

property the defendant himself actually acquired as a result of the crime, and so a

defendant who did not receive any of the proceeds of the crime cannot be subject

to joint and several liability on the entire forfeiture amount. Honeycutt, 137 S. Ct.

at 1630, 1635. Defendant argues that the same reasoning applies here, and because

she did not plead guilty to the conspiracy, she should only be liable for the

$610,000 she admitted to receiving rather than the full proceeds of the conspiracy.

       Citing Honeycutt, the Government now likewise concedes that Defendant

cannot be held jointly and severally liable for the entire amount of proceeds from

the wire-fraud scheme simply because she was a coconspirator. The Government

therefore asks us to vacate the forfeiture money judgment and remand to the

district court to make factual findings regarding the amount of proceeds directly

obtained by Defendant.



4
  Defendant also argued in her brief that the cases the Government relied on in support of joint
and several liability are inapposite.
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      Although the forfeiture statute at issue in Honeycutt, 21 U.S.C. § 853, is not

the same forfeiture statute at issue here, 18 U.S.C. § 981(a)(1)(C), the two statutes

are largely the same in terms of their pertinent language, and so it appears that the

Supreme Court’s decision would apply to the statute at issue in the present case.

Compare 21 U.S.C. § 853(a)(1) (“Any person convicted of a violation . . . shall

forfeit . . . any property constituting, or derived from, any proceeds the person

obtained, directly or indirectly, as the result of such violation.”) with 18 U.S.C.

§ 981(a)(1)(C) (“The following property is subject to forfeiture to the United

States . . . Any property, real or person, which constitutes or is derived from

proceeds traceable to a violation.”). Indeed, the Third Circuit has so held. See

United States v. Gjeli, 867 F.3d 418, 427–28 & n.16 (3d Cir. 2017) (concluding

that Honeycutt applies with equal force to a forfeiture pursuant to 18 U.S.C.

§ 981(a)(1)(C), and remanding to the district court to reconsider its forfeiture

ruling).

      At any rate, given the Honeycutt decision and its likely applicability to the

statute at issue here, we vacate the forfeiture judgment as to Defendant and remand

to the district court to determine in the first instance the applicability of

Honeycutt to the present case and to conduct any fact-finding necessary to

determine the appropriate amount of monetary forfeiture to be imposed on

Defendant.


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VACATED AND REMANDED.




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