     Case: 14-40797      Document: 00512968392         Page: 1    Date Filed: 03/13/2015




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

                                    No. 14-40797
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           March 13, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

JOSE MANUEL GONZALEZ,

                                                 Defendant
v.

LAURIE TORRES,

                                                 Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:06-CR-329-4


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Laurie Torres appeals the dismissal of her third-party petition asserting
a legal interest in a property in Hunt County, Texas, that was the subject of a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40797       Document: 00512968392          Page: 2     Date Filed: 03/13/2015


                                       No. 14-40797

preliminary order of forfeiture in the criminal case against Jose Manual
Gonzalez. 1 Torres, who claims to be Gonzalez’s common law spouse, contends
that her petition stated a claim for relief under 21 U.S.C. § 853(n) and Federal
Rule of Criminal Procedure 32.2 because the presentence report (PSR) showed
that her husband’s drug trafficking conspiracy began after they purchased the
property in July 1998. She thus argues that her own interest in the property
vested before the Government’s interest under the “relation back” doctrine in
§ 853(c). She acknowledges that, according to the indictment, the offense
began in January 1998, but she argues that the PSR’s description of the offense
should control. She does not acknowledge Gonzalez’s admission in the agreed
preliminary order of forfeiture that the property was purchased with the
proceeds of the drug trafficking conspiracy.
       We apply de novo review to the district court’s dismissal for failure to
state a claim, taking all of Torres’s allegations in the petition as true. See
United States v. Alvarez, 710 F.3d 565, 567 (5th Cir. 2013). The dismissal will
be “affirmed only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”                   Id. (internal
quotation marks and citation omitted).
       Contrary to Torres’s claim, the PSR confirms that Gonzalez was engaged
in the drug trafficking conspiracy in July 1998 when the property was
purchased. It is indisputable that the Government’s interest vested at the time
of the offense under the relation back doctrine. See § 853(c); United States v.
Corpus, 491 F.3d 205, 209 (5th Cir. 2007). Torres’s argument that the PSR
established the priority of her interest over the Government’s is unavailing.


       1 Although the notice of appeal also references the final judgment of forfeiture against
a second property located in Rockwall County, Torres abandons her appeal of that judgment
by failing to address the forfeiture of that property. See Brinkmann v. Dallas Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).


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                                No. 14-40797

      Torres also contends that, because she is Gonzalez’s common law spouse,
the property is community property and not amenable to forfeiture. This claim
also fails under the application of the relation back doctrine. As discussed
above, the Government’s interest in the property vested at the time of
Gonzalez’s offense, which began before the couple purchased the property.
Accordingly, the property never became the community property of Torres and
Gonzalez. See United States v. Martinez, 228 F.3d 587, 590 (5th Cir. 2000)
(interpreting an identical relation back provision in the RICO forfeiture
statute).
      The judgment of the district court is AFFIRMED.




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