                                                                  FILED
                                                      United States Court of Appeals
                           UNITED STATES COURT OF APPEALS     Tenth Circuit

                              FOR THE TENTH CIRCUIT                        June 25, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

v.                                                           No. 13-3054
                                                   (D.C. No. 2:06-CR-20153-CM-1)
IVORY A. ROBINSON,                                             (D. Kan.)

                Defendant-Appellant.


                               ORDER AND JUDGMENT*


Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.


          Ivory A. Robinson appeals the district court’s order denying his motion to

return to him $1,520.00 seized incident to his arrest on drug charges. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

     I.      BACKGROUND

          When Mr. Robinson was arrested, authorities recovered $1,520.00 in cash

from his jacket pocket. He eventually entered guilty pleas to one count of being a

*
      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)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
felon in possession of a firearm and one count of possession with intent to distribute

five grams or more of cocaine base within 1,000 feet of a school. Over

Mr. Robinson’s objection, the sentencing court converted the currency to its drug

equivalencies and factored that drug amount into his offense level. He was sentenced

to 110 months in prison on each count, to run concurrently.

         After the criminal proceedings had concluded, Mr. Robinson filed a motion to

have the $1,520.00 returned to him, pursuant to Fed. R. Crim. P. 41(g). Rule 41(g)

provides:

         A person aggrieved by an unlawful search and seizure of property or by
         the deprivation of property may move for the property’s return. The
         motion must be filed in the district where the property was seized. The
         court must receive evidence on any factual issue necessary to decide the
         motion. If it grants the motion, the court must return the property to the
         movant, but may impose reasonable conditions to protect access to the
         property and its use in later proceedings.

         The same judge who sentenced Mr. Robinson on the drug convictions heard

the Rule 41(g) motion. Based on the currency having been determined to be

proceeds of drug sales and converted to drug equivalencies, the court ruled that the

money could not equitably be returned to Mr. Robinson. The court found it

unnecessary to hold an evidentiary hearing.

   II.      DISCUSSION

         On appeal, Mr. Robinson contends that the district court erred in not holding

an evidentiary hearing on the Rule 41(g) motion. We review for abuse of discretion.

United States v. Albinson, 356 F.3d 278, 281 n.5 (3d Cir. 2004).


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       Mr. Robinson contends that an evidentiary hearing was required to determine

which agency—state or federal—held the currency, and whether the currency was per

se or derivative contraband. We explained in United States v. Rodriguez-Aguirre,

264 F.3d 1195, 1212 n.13 (10th Cir. 2001), that there are two types of contraband—

contraband per se, which is “intrinsically illegal in character,” and derivative

contraband, which includes items “not inherently unlawful but which may become

unlawful because of the use to which they are put.”

       Neither of Mr. Robinson’s contentions warranted an evidentiary hearing. The

custodian of the currency was relevant only if Mr. Robinson was entitled to have the

currency returned to him. By converting the currency to drug equivalencies in the

sentencing proceedings, the district court determined it to be derivative contraband.

Cf. United States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001) (stating currency

recovered from drug-smuggling operation was derivative contraband). Mr. Robinson

was therefore not entitled to its return.

       Mr. Robinson also asserts that the district judge should have held an

evidentiary hearing to determine whether the currency had originated from illicit

drug sales, rather than relying on his own memory of the sentencing proceedings.

Again, no hearing was necessary. The sentencing record confirms the court’s

determination that the $1,520.00 was derived from drug sales and was accordingly

converted to drug equivalencies. See R. Supp. Vol. 2 at 24 (noting Mr. Robinson’s

objection to converting the currency to drug equivalencies); id. at 27 (reflecting that


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the district court overruled the objection). We therefore find no abuse of discretion

in the district court’s decision not to hold an evidentiary hearing.

      It is unclear whether Mr. Robinson also challenges the district court’s

equitable decision to deny return of the money. We liberally construe his pro se

filings to raise such a challenge. See Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir.

2011). “We review questions of law relating to a Rule 41(g) motion de novo, but we

review the district court’s weighing of equitable considerations and its decision to

deny a Rule 41(g) motion for an abuse of discretion.” United States v. Shigemura,

664 F.3d 310, 312 (10th Cir. 2011) (citation omitted), cert. denied, 132 S. Ct. 1952

(2012).

      “No property right shall exist in illegal drugs [or] proceeds from selling illegal

drugs . . . .” Clymore, 245 F.3d at 1200 (internal quotation marks and brackets

omitted) (quoting 21 U.S.C. § 881(a)). A Rule 41(g) proceeding for return of

confiscated property is an equitable proceeding. See Clymore, 245 F.3d at 1200.1

“There are only two categories of owner that may have a superior interest to the

government in [drug proceeds] when the nexus between the property and the crime

has been conclusively established at the criminal trial: one whose constitutional right

against an illegal search and seizure has been offended or an innocent owner.” Id.


1
      When Clymore was decided in 2001, Rule 41(g) was designated as Rule 41(e).
“Effective December 1, 2002, Rule 41 was amended and reorganized. What was
formerly Rule 41(e) is now found at Rule 41(g) with minor stylistic changes.”
United States v. Rodriguez-Aguirre, 414 F.3d 1177, 1179 n.1 (10th Cir. 2005).


                                          -4-
(citations omitted). Mr. Robinson falls into neither category. As stated above, the

currency was conclusively established at sentencing to be drug proceeds, and he does

not claim illegal search and seizure. Consequently, the district court did not abuse its

discretion in denying return of the currency to Mr. Robinson.

   III.   CONCLUSION

      The judgment of the district court is affirmed.


                                                Entered for the Court


                                                Scott M. Matheson, Jr.
                                                Circuit Judge




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