     Case: 11-50658     Document: 00511858767         Page: 1     Date Filed: 05/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-50658
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RIGOBERTO MELERO AGUIRRE,

                                                  Defendant

MARIA JESSICA AGUIRRE,

                                                  Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1267-2


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Rigoberto Melero Aguirre (Mr. Aguirre) pleaded guilty to conspiracy to
possess with intent to distribute five kilograms or more of cocaine, and he was
sentenced to life imprisonment, a lifetime term of supervised release, a $100
special assessment, and a $1,000,000 fine. Mr. Aguirre’s wife, third party


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-50658      Document: 00511858767         Page: 2    Date Filed: 05/17/2012

                                      No. 11-50658

petitioner Maria Jessica Aguirre (Mrs. Aguirre), appeals the district court’s
denial of her motion for relief from final judgment of forfeiture and petition for
adjudication of interest in Mr. Aguirre’s real properties that were forfeited to the
Government (the forfeiture properties), the district court’s grant of the
Government’s petition to foreclose liens, and the district court’s denial of her
petition for adjudication of interest in Mr. Aguirre’s real properties that were
subject to foreclosure (the foreclosure properties).
       Mrs. Aguirre argues that the district court abused its discretion by
denying her motion for relief from the final judgment of forfeiture and her
petition for adjudication of interest in the forfeiture properties. She maintains
that she showed excusable neglect sufficient to be granted relief from the final
judgment of forfeiture pursuant to Federal Rule of Civil Procedure 60(b)(1) based
upon her husband’s incarceration, her new role as the single parent of six
children, and her lack of legal knowledge. She asserts that she has a valid
interest in the forfeiture properties under Texas community property law. She
contends that the district court erred by not conducting an examination into the
application of Rule 60(b) to her petition, by not examining the merits of her
interest in the forfeiture properties, and by not holding a hearing on her claims.
       A third party claiming an interest in the property to be forfeited may
petition the court for an adjudication of her interest in that property within 30
days1 of the publication of the final notice of forfeiture or her receipt of notice of
the forfeiture, whichever is earlier. 21 U.S.C. § 853(n)(2). The proper method
for attempting to reopen a forfeiture proceeding to file an untimely petition is
through a motion under Federal Rule of Civil Procedure 60(b). FED . R. CRIM.
P. 32.2(c), advisory committee notes.




       1
          The notice provided to Mrs. Aguirre gave her 35 days to file a petition. This
discrepancy, however, does not change the analysis of this case because Mrs. Aguirre did not
file her petition within either time period.

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                                  No. 11-50658

      As Mrs. Aguirre’s petition was admittedly untimely, she was required to
show that she was entitled to relief under Rule 60(b) for her petition to be
considered. See id. As noted by the district court, finding excusable neglect on
the grounds raised by Mrs. Aguirre would prejudice the Government because
those circumstances would apply to most spouses of convicted criminals and
allow for the reopening of numerous forfeitures. The length of Mrs. Aguirre’s
delay also weighed against a finding of excusable neglect because her petition
was filed nearly four months after she was served with notice and over two
months after the deadline for filing her petition. Likewise, the reasons for Mrs.
Aguirre’s delay were not sufficient to support a finding of excusable neglect
because a showing of unusual or unique circumstances is required and gross
carelessness and ignorance of the law are insufficient. See Pryor v. U.S. Postal
Service, 769 F.2d 281, 286-87 (5th Cir. 1985). Mrs. Aguirre has not shown that
the district court abused its discretion by denying her request for relief from the
final judgment of forfeiture. See id. at 286.
      Mrs. Aguirre’s assertion that the district court erred by not examining the
application of Rule 60(b) to her petition is without merit because the district
court analyzed her request for relief under the proper Rule 60(b) standards. See
Silvercreek Mgmt. v. Banc of Am. Secs. LLC, 534 F.3d 469, 472 (5th Cir. 2008).
Her argument that the district court erred by refusing to hold a hearing on her
petition is without merit because the district court was authorized to dismiss her
petition on a motion to dismiss without holding a hearing. See FED. R. CRIM. P.
32.2(c)(1).
      Mrs. Aguirre argues that the district court erred by denying her petition
for adjudication of interest in the foreclosure properties. She asserts that she
had an interest in the foreclosure properties under Texas community property
law. She mistakenly asserts that the foreclosure properties were subject to
forfeiture, and the cases she cites are forfeiture cases. Mrs. Aguirre argues that
the district court should have held a prompt hearing on her petition.

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                                  No. 11-50658

      While it was undisputed that Mrs. Aguirre held a community property
interest in at least some of the foreclosure properties, Texas law provides that
community property subject to a debtor’s sole or joint management or control is
subject to the debtor’s liabilities. TEX. FAM. CODE § 3.202(c). Thus, unless
property is solely managed or controlled by a defendant’s spouse, a district court
in Texas may properly allow the Government to seize both a defendant’s and his
spouse’s interests in property to satisfy a criminal debt. United States v. Loftis,
607 F.3d 173, 178 (5th Cir. 2010). As Mrs. Aguirre did not allege that any of the
foreclosure properties were under her sole management or control, the district
court did not err by denying her petition and granting the Government’s
foreclosure petition. See id.
      As the foreclosure properties were subject to foreclosure, not forfeiture,
Mrs. Aguirre’s arguments regarding forfeiture law are not relevant to this
appeal. Mrs. Aguirre’s assertion that the district court should have held an
evidentiary hearing is also without merit because Mrs. Aguirre has not
identified any law requiring such a hearing and has not identified any disputed
issue of fact that would have necessitated an evidentiary hearing. Cf. United
States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). To the extent that Mrs.
Aguirre argues that the district court did not promptly rule on her petition, her
argument is without merit as the district court issued its ruling less than a
month after Mrs. Aguirre filed her petition.
      AFFIRMED.




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