                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2163


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS EDWARD SIMS, II,

                Claimant - Appellant,

          and

SIMS' PERSONAL PROPERTY, Specifically Described as a 2012
Volkswagen Passat SEL, VIN: 1VWCH7A34CC057759 and any and
all proceeds from the sale of said property,

                Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cv-00332-FL)


Submitted:   May 1, 2014                   Decided:   July 11, 2014


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William   Lee   Davis,  III,   Lumberton, North  Carolina,  for
Appellant.    Thomas G. Walker, United States Attorney, Rudy A.
Renfer, Jr., Assistant United States Attorney, Stephen A. West,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

      Pursuant to 21 U.S.C. § 881, a vehicle used or intended for

use     “to    transport,          or        in    any     manner     to     facilitate     the

transportation, . . . possession, or concealment of,” 21 U.S.C.

§ 881(a)(4),           “controlled                substances         which        have      been

manufactured, distributed, dispensed, or acquired in violation

of [21 U.S.C., Chapter 13, Subchapter I],” id. § 881(a)(1), is

“subject      to   forfeiture           to    the       United   States     and   no    property

right    shall     exist      in    [it],”          id.    § 881(a).         In   the    present

appeal,       Thomas    Edward      Sims,          II     (Sims)    challenges     the    civil

forfeiture of his vehicle, a 2012 Volkswagen Passat SEL (the

Passat), pursuant to 21 U.S.C. § 881.                            For reasons that follow,

we affirm.



                                                   I.

      The initial burden of proof in a civil forfeiture action

“is on the Government to establish, by a preponderance of the

evidence,      that     the   property             is    subject    to     forfeiture.”       18

U.S.C. § 983(c)(1).                Moreover, “if the Government’s theory of

forfeiture is that the property was used to commit or facilitate

the commission of a criminal offense, or was involved in the

commission of a criminal offense, the Government shall establish

that there was a substantial connection between the property and

the offense.”          Id. § 983(c)(3).

                                                  - 3 -
      Of relevance in the present appeal, a claimant such as Sims

“may petition the court to determine whether the forfeiture was

constitutionally excessive,” id. § 983(g)(1), in “violation of

the   Excessive      Fines    Clause     of    the    Eighth      Amendment       of    the

Constitution,”        id.    § 983(g)(4).            In    determining        whether     a

forfeiture     is     constitutionally         excessive,         “the    court     shall

compare the forfeiture to the gravity of the offense giving rise

to the forfeiture.”          Id. § 983(g)(2).             “The claimant shall have

the   burden    of    establishing       that     the      forfeiture      is     grossly

disproportional by a preponderance of the evidence at a hearing

conducted by the court without a jury.”                   Id. § 983(g)(3).



                                         II.

      This action began on November 26, 2012, when the government

filed a civil complaint in the United States District Court for

the Eastern District of North Carolina for the forfeiture in rem

of the Passat, then currently registered to Sims.                        The complaint

alleged    that,     pursuant    to    the     declaration        of    James    McVicker

(Officer     McVicker),      a   North        Carolina      State      Highway     Patrol

Trooper on assignment as a Task Force Officer with the Drug

Enforcement Administration, “there is a reasonable basis for a

belief that the defendant vehicle was used, or intended to be

used, to facilitate violations of Title II of the Controlled

Substances     Act,    21    U.S.C.    § 801     et       seq.,   and    is     therefore

                                        - 4 -
subject to forfeiture to the United States of America pursuant

to   21     U.S.C.       § 881(a)(4).”           (J.A.      8).         The    complaint

incorporated       Officer      McVicker’s      declaration       by   reference,      and

the government attached it to the complaint.

     In his declaration under oath, Officer McVicker declared

that,     based    upon    official     reports       he   had    reviewed     from    the

Lumberton Police Department, on June 15, 2012, during a traffic

stop of the Passat, which Sims was driving, for speeding:                          (1) a

drug dog alerted positively to the driver’s side door; (2) the

resulting     search      of    the    Passat    revealed        (a)   a   pill    bottle

containing twenty yellow Percocet pills hidden behind the panel

covering the fuse box, (b) a Crown Royal bag with two plastic

sandwich bags containing marijuana hidden behind the dashboard

airbag cover, and (c) a handgun in an outer pocket of a coat on

the back seat; (3) after Sims waived his right to counsel, he

admitted that the Percocet pills, the marijuana, and the handgun

belonged to him; and (4) Sims was arrested and charged with

maintaining a vehicle to keep controlled substances, carrying a

concealed weapon, possession of drug paraphernalia, trafficking

in opium by possession, trafficking in opium by transportation,

and possession with intent to sell and deliver marijuana.

        Percocet    is    a    brand   name     for   a    prescription       medication

containing    the    active       ingredient      oxycodone.           Oxycodone      is   a

Schedule II controlled substance.                21 U.S.C. § 812(c); 21 C.F.R.

                                         - 5 -
§ 1308.12(b)(1)(xiii).                 Marijuana is a Schedule I controlled

substance.       21 U.S.C. § 812(c), Schedule I(c)(10).

      In response to the government’s forfeiture complaint, Sims

filed a letter-style document in which he claims ownership of

the   Passat      and    opposes        its      forfeiture       on    the     basis    that,

although    “[he]       understand[s]         [he]    broke      the    law     and   [he     is]

willing to take responsibility for [his] charges still pending,

. . . [he] do[es] not believe that the forfeiture of [his] car

is fair, because [he] plan[s] on doing something with his life.”

(J.A.     11).      Sims       goes     on    in     the    document       to    detail       his

educational and career plans and to explain that he needs the

Passat    to     accomplish         such     plans.        He    also    states       that    he

purchased the Passat outright with funds he inherited from his

father upon his father’s death.

      The      government       moved      for     summary       judgment       pursuant      to

Federal Rule of Civil Procedure 56.                        In response, Sims did not

dispute that the marijuana, the yellow Percocet pills, and the

firearm     found       in    the     Passat       belonged       to    him     or    that     he

transported such items in the Passat. 1                     Nonetheless, Sims opposed

the     government’s         motion     for      summary        judgment       and    filed    a

cross-motion       for       summary    judgment       on       the    basis    that:         (1)

      1
        Notably, Sims affirmatively admitted that the yellow
Percocet pills found in the fuse box of the Passat are ten
milligrams each.



                                             - 6 -
forfeiture of his Passat based solely upon what he describes as

the small amount of marijuana found in it (amounting to only a

misdemeanor offense) would violate the Excessive Fines Clause of

the Eighth Amendment; and (2) a substantial connection does not

exist between what he describes as the small amount of marijuana

found in the Passat and any violation of 21 U.S.C., Chapter 13,

Subchapter I.             Notably, Sims offered no evidence regarding the

value    of    the       Passat     in    support       of    his    affirmative          defense

asserting a violation of the Excessive Fines Clause.

       The     government         made     several       points      in     response.          Of

particular note, the government pointed out that Sims had not

addressed the concealment of the twenty Percocet pills at ten

milligrams         each    in     the     fuse-box       panel      of    the     Passat,     and

therefore,         did    not   fully      assess       the   gravity       of    his     illegal

conduct       in    connection        with       the    Passat.          Additionally,       the

government         offered      the      sworn    declaration        of    Jenny     Whitfield

(Whitfield),         the    Asset       Forfeiture      Coordinator         for     the    United

States    Marshal’s         Service        for    the    Eastern         District    of     North

Carolina.          In her declaration, Whitfield explained the procedure

used    by    the     United      States     Marshal’s         Service      to     produce     an

appraisal value for a vehicle transferred to its custody during

forfeiture         proceedings.            Applying       such      procedure,       Whitfield

declared that the clean retail appraisal value of the Passat is

$25,775.       The government then pointed out that this figure is

                                             - 7 -
well within the applicable statutory fine range for a defendant

convicted of possession with intent to distribute a controlled

substance, 21 U.S.C. § 841(b)(1)(C), which range is $1,000 to

$1,000,000.      The government then went on to explain that Sims’

hypothetical     fine       range    under    the       United       States    Sentencing

Guidelines,      had        he      been      convicted          under        21    U.S.C.

§ 841(b)(1)(C), would be $3,000 to $30,000.

      Although      Sims     had    the     opportunity        to     respond      to    the

government’s reply to his response/memorandum in support of his

summary judgment motion, including Whitfield’s appraisal of the

clean retail value of the Passat, he did not respond.

      On August 22, 2013, the district court entered judgment in

favor of the government, ordering forfeiture of the Passat.                               In

the   district      court’s        memorandum      opinion       setting       forth      its

dispositionary      analysis,        the    district         court    concluded         that,

based upon the summary judgment record, the “[government] has

established by a preponderance of the evidence that the [Passat]

is subject to forfeiture where the vehicle was used to transport

illegal   schedule      I     and    schedule      II    controlled        substances.”

United States v. Sims’ Personal Property, No. 7:12-CV-332, 2013

WL 4460320, at *3 (E.D.N.C. Aug. 20, 2013).                         The district court

further   concluded        that    “[t]he    facts      of    this    case,     where    the

illegal    controlled         substances        were         purposely        hidden     and

transported    in    claimant’s        vehicle,      also      clearly        establish    a

                                           - 8 -
‘substantial connection between the property and the offense.’”

Id. (quoting 18 U.S.C. § 983(c)(3)).

      Finally,      the    district         court     rejected          Sims’    affirmative

defense in      which     he    asserted      forfeiture           of   the     Passat    would

violate the Excessive Fines Clause of the Eighth Amendment.                                    The

district court reasoned that the undisputed facts of this case

established        that    Sims      “was     involved        in    dealing       controlled

substances,      and      not     merely     a      casual       marijuana       user     on     a

misdemeanor level as” he contended.                   Id.         These facts are:             (1)

marijuana       divided         into        two      sandwich           bags,     suggesting

distribution,       hidden      in    the    Passat;       (2)     twenty       ten-milligram

Percocet    pills      (active       ingredient           Oxycodone,       a    Schedule        II

controlled substance), hidden in the Passat; and (3) a firearm

hidden in the Passat.                Referring to 21 U.S.C. § 841(b)(1)(C),

the     district     court      reasoned          that,     “[w]hen       considering          the

totality of the conduct at issue in this case, the statutory

fines    that      claimant       would     face      are     between         $1,000.00        and

$1,000,000.00.”           Id.     The district court also observed that,

according to the government, Sims’ fine range under the United

States Sentencing Guidelines would be $3,000 to $30,000.                                  “Upon

weighing the gravity of the offense conduct against the value of

the Passat at issue in this case, the court [found] that the

forfeiture is not grossly disproportional by a preponderance of

the evidence.”       Id. (internal quotation marks omitted).

                                            - 9 -
     So, when all was said and done, the district court granted

the government’s motion for summary judgment and denied Sims’

cross-motion for summary judgment.           This timely appeal followed.



                                     III.

     We review the district court’s grant of summary judgment de

novo.   United States v. Kanasco, Ltd., 123 F.3d 209, 210 (4th

Cir. 1997) (civil forfeiture action).               “The court shall grant

summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”        Fed. R. Civ. P. 56(a).



                                     IV.

     Raising   three     contentions,      Sims   challenges    the     district

court’s grant of summary judgment in favor of the government.

Each contention is without merit.

                                      A.

     First,    Sims     contends   that    the    district    court   erred   in

considering    the      twenty     ten-milligram        Percocet      pills    in

determining whether the Passat is subject to forfeiture under

21 U.S.C. § 881, because the government did not reference the

Percocet   pills   in    its   initial     memorandum    in   support    of   its

motion for summary judgment.          This contention is without merit

because Federal Rule of Civil Procedure 56(c)(3) permitted the

                                    - 10 -
district court to consider the evidence regarding the Percocet

pills    found     in    the    Passat    regardless        of     the    fact    that    the

government      did     not    reference    them       in   its    initial       memorandum

opinion in support of its motion for summary judgment.                             See Fed.

R. Civ. P. 56(c)(3) (“The court need consider only the cited

materials, but it may consider other materials in the record.”).

                                            B.

        Second,        Sims    contends     the       district          court     erred    in

considering the Percocet pills in determining whether the Passat

is   subject      to    forfeiture     under     21    U.S.C.      § 881,       because   the

government failed to carry its initial burden of demonstrating

that the twenty Percocet pills found in the Passat, which he

expressly admitted below in his response to the government’s

motion    for     summary      judgment    were       ten   milligrams          each,   could

support a prosecution for possession with intent to distribute

under 21 U.S.C. § 841(a)(1).               Sims’ contention widely misses the

mark.    The    inference       that   Sims      possessed        the    twenty    Percocet

pills, a Schedule II controlled substance, with the intent to

distribute is supported not only by the fact that he hid such

pills (which he stole from his grandmother) in the fuse box of

the Passat, but also by the fact that:                      (1) he hid two sandwich

bags of marijuana (in packaging suggesting intent to distribute)

and a firearm in close proximity to the twenty Percocet pills

and the two sandwich bags of marijuana; and (2) Sims admitted

                                          - 11 -
culpability to the three state charges arising from the stop

involving distribution of controlled substances (trafficking in

opium by possession, trafficking in opium by transportation, and

possession    with   intent       to   sell   and   deliver   marijuana).        See

United States v. Mitten, 592 F.3d 767, 777–78 (7th Cir. 2010)

(recognizing “[d]rug traffickers will commonly possess firearms

to protect their product, to protect their drugs, to protect

their cash, to protect their life and even to protect their

turf”     (alteration        in   original)     (internal         quotation   marks

omitted)); cf. United States v. Grogins, 163 F.3d 795, 799 (4th

Cir. 1998) (noting that “the background fact that the connection

between illegal drug operations and guns in our society is a

tight one”).     Stated simply, the government carried its burden

of proving, by a preponderance of the evidence viewed in the

light most favorable to Sims, that Sims possessed the twenty

Percocet pills and the two sandwich bags of marijuana with the

intent to distribute, and a genuine issue of material fact does

not exist on this point.

                                         C.

     Third and finally, Sims contends that forfeiture of the

Passat is grossly disproportional to his offense conduct, which

offense    conduct      he    characterizes         as   simple     possession   of

controlled substances in violation of 21 U.S.C. § 844(a), and

therefore, violates the Excessive Fines Clause of the Eighth

                                       - 12 -
Amendment.         In this regard, he makes the subcontention that the

appraised         value     of     the        Passat       set      forth     in    Whitfield’s

declaration        ($25,775)       is    inadmissible            hearsay,     and       therefore,

the     government        failed        to    meet       its     burden      of    proving     the

forfeiture of the Passat is not grossly disproportional to the

gravity of his simple possession offense.

       We    affirm       this    issue       on     the   reasoning         of    the   district

court.       Sims’ contention does not account for the fact that, as

we    just    held    in    Part     IV.B.,          supra,      the    proper     offense    for

conducting a proportionality analysis under the Excessive Fines

Clause       in   this     case    is     possession           of    controlled         substances

(Percocet and the marijuana) with the intent to distribute.                                    21

U.S.C. § 841(a)(1).               Additionally, Sims’ position on this issue

meets    itself      coming       and        going      because      Sims’    assertion      that

forfeiture of the Passat violates the Excessive Fines Clause is

an affirmative defense upon which he bears the burden of proof.

18     U.S.C.     § 983(g)(3).                Sims      himself        offered     no    evidence

regarding the value of the Passat.



                                                   V.

       In sum, we affirm the judgment below.                                We dispense with

oral    argument         because     the       facts       and      legal    contentions      are




                                               - 13 -
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




                                - 14 -
