                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                       January 13, 2011
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 10-7046
                                                  (D.C. No. 6:09-CR-00034-RAW-1)
 RICHARD ALBERT GARZA, a/k/a                                 (E.D. Okla.)
 Ricardo Albert Garza, a/k/a Richard
 Alberto Garza, a/k/a Ricardo Alberto
 Garza,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

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        This order and judgment is not binding precedent, except under the doctrines of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.
       After pleading guilty to his involvement in a conspiracy to possess and distribute

methamphetamine, Richard Albert Garza (Garza) was ordered to forfeit to the

government $750,000 in United States currency, the amount of proceeds resulting from

this criminal conduct. As the government could not locate the proceeds of Garza’s

criminal conduct upon the exercise of due diligence, the district court amended its order

of forfeiture to include Garza’s real property located in Thackerville, Oklahoma as

substitute property in partial satisfaction of the criminal forfeiture money judgment.

Garza filed a pro se notice of appeal in which he appeals from the district court’s

amended forfeiture order.

       Garza’s appointed counsel filed an Anders brief asserting that there are no non-

frivolous grounds that could be raised on appeal regarding the amended forfeiture order,

and moving to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court grants counsel’s motion to

withdraw and dismisses this appeal.

                                             I

       On March 18, 2009, Garza was charged in a two-count grand jury indictment in

the United States District Court for the Eastern District of Oklahoma with: (1) conspiracy

to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846; and

(2) forfeiture of the proceeds resulting from the drug conspiracy pursuant to 21 U.S.C. §

853, which allegedly amounted to $1,500,000, upon his conviction for the drug

conspiracy. ROA, Vol. 1 at 15–18. Garza pleaded guilty without a plea agreement to

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violating 21 U.S.C. § 846. ROA, Vol. 3 at 3. However, as concerned the forfeiture

“charge”, Garza disputed the amount of proceeds that the government alleged had

resulted from the drug conspiracy. Id. The parties agreed that the district court would

determine the amount of proceeds during the sentencing proceeding.

       On November 9, 2009, during the sentencing proceeding, the district court

sentenced Garza to 168 months’ incarceration for his violation of 21 U.S.C. § 846 and

ordered that he forfeit $750,000 in United States currency to the government. ROA, Vol.

2 at 136, 138. After considering the evidence presented concerning drug amounts, drug

sales, and the lien-free property owned by Garza, the district court found by a

preponderance of the evidence that Garza’s proceeds from the drug conspiracy amounted

to $750,000. Id. at 125 (“I’m going to find by a preponderance of the evidence that there

were proceeds obtained directly and indirectly from the violations contained in the

indictment and that it should be forfeited up to an amount of $750,000.00.”). The district

court also documented this finding in an order stating that Garza “shall forfeit, pursuant to

21 U.S.C. § 853, to the United States $750,000.00 in United States currency.” ROA, Vol.

1 at 28. The district court then entered an order of forfeiture on April 9, 2010, for a

“criminal forfeiture money judgment . . . in the amount of $750,000.” Id. at 36.

       On June 2, 2010, the government filed a motion to amend the district court’s order

of forfeiture to include certain real property as substitute property pursuant to 21 U.S.C. §

853(p). Id. at 38. The government identified Garza’s real property located in

Thackerville, Oklahoma as the substitute property. Id. at 41. This property had been

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valued at $45,000. ROA, Vol. 3 at 10. In its brief in support of the motion, the

government asserted that “the United States ha[d] been unable to locate any proceeds that

are traceable to the charge for which . . . Garza has pled guilty.” ROA, Vol. 1 at 42. The

government also attached an affidavit from Special Agent Green of the Drug Enforcement

Division of the Bureau of Indian Affairs, who had been assigned to the Drug Enforcement

Administration (DEA) as a task force agent, stating that the DEA had analyzed all of

Garza’s financial records that had been obtained and explaining that the real property was

the only “liquid able [sic] asset[] . . . identified to date.” Id. at 50–51. Contending that

Garza’s proceeds from the drug conspiracy could not be traced upon the exercise of due

diligence, the government sought the forfeiture of the identified real property as substitute

property in partial satisfaction of the criminal forfeiture money judgment. Id. at 42.

       On June 3, 2010, the district court entered an amended forfeiture order, granting

the government’s motion. Id. at 53–55. Garza then filed a pro se notice of appeal

appealing the district court’s amended forfeiture order. Id. at 56.

                                              II

       Garza’s counsel has filed an Anders brief advising the court that this appeal is

wholly frivolous. Accordingly, counsel seeks permission to withdraw. Pursuant to

Anders, counsel may “request permission to withdraw where counsel conscientiously

examines a case and determines that any appeal would be wholly frivolous.” United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to submit an

appellate brief “indicating any potential appealable issues based on the record.” Id. Once

                                               4
notified of counsel’s brief, the defendant may then submit additional arguments to this

court. Id. This court “must then conduct a full examination of the record to determine

whether defendant’s claims are wholly frivolous.” Id.

       Although counsel’s Anders brief was served on Garza, he did not file a response.

The government also declined to file a response, explaining that counsel’s Anders brief

correctly set forth the applicable facts and law. Thus, our resolution of this case is based

on counsel’s Anders brief and this court’s independent review of the record.

       Our independent review of the record confirms counsel’s assertion that there are

no non-frivolous issues presented in this appeal. The government’s interest in and right

to the identified real property is defined in 21 U.S.C. § 853. See United States v. Jarvis,

499 F.3d 1196, 1203 (10th Cir. 2007). Under this criminal forfeiture statute, “any

property constituting, or derived from, any proceeds . . . [Garza] obtained, directly or

indirectly, as a result of [his drug-related criminal] violation” were to be forfeited to the

government upon his conviction. 21 U.S.C. § 853(a)(1). The district court found that

Garza received proceeds of $750,000 from the drug conspiracy charged in the indictment

by a preponderance of the evidence and ordered Garza to forfeit $750,000 in United

States currency to the government. ROA, Vol. 2 at 125. Thus, pursuant to § 853(a), the

government could seize $750,000 traceable to the drug conspiracy upon Garza’s

conviction.

       The government then filed a motion to amend the order of forfeiture to include

certain real property as substitute property, asserting that the proceeds resulting from the

                                               5
criminal conduct could not be located upon the exercise of due diligence. ROA, Vol. 1 at

40, 42. Substitute property is defined as “property that neither comprises the fruits of nor

is connected to the defendant’s alleged crime.” Jarvis, 499 F.3d at 1203–04. Pursuant to

21 U.S.C. § 853(p), the district court “shall order” a defendant to forfeit substitute

property to the government where, by the defendant’s act or omission, the property

subject to forfeiture under § 853(a) cannot be located by the government “upon the

exercise of due diligence.” See United States v. Alamoudi, 452 F.3d 310, 314 (4th Cir.

2006) (identifying the forfeiture of substitute property as mandatory when the

requirements of § 853(p) are satisfied).

       The government demonstrated that the proceeds of Garza’s criminal conduct could

not be located upon the exercise of due diligence based on Special Agent Green’s

affidavit. In his affidavit, Special Agent Green stated that the DEA had analyzed Garza’s

financial records and that the real property in Thackerville, Oklahoma was the only asset

identified that could be liquidated. See United States v. Candelaria-Silva, 166 F.3d 19, 42

(1st Cir. 1999) (concluding that the government’s “motion and affidavit that recited the

efforts the government had made to locate the proceeds of the drug conspiracy that would

have been directly forfeitable” demonstrated that these assets could not be located upon

the exercise of due diligence pursuant to § 853(p)). Because the requirements for the

forfeiture of substitute property in § 853(p) were satisfied, the district court was required

to amend its order of forfeiture to include the identified real property as substitute

property in partial satisfaction of the criminal forfeiture money judgment.

                                              6
      We conclude that any potential issue regarding the amended forfeiture order which

could be raised on appeal would be frivolous. We therefore GRANT counsel’s motion to

withdraw and DISMISS the appeal.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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