United States v. Val Johnson

MEMORANDUM

The United States appeals from the sentence imposed by the district court order denying forfeiture. We have jurisdiction under 28 U.S.C. § 1291 . We vacate the district court’s sentence and remand for further proceedings consistent with United States v. Newnan, 659 F.3d 1235 (9th Cir.2011).

Under Newnan , the district court had no discretion to reduce or eliminate forfeiture. Id. at 1240 . However, if the district court determines there is reason to question the accuracy of the stipulated forfeiture amount, it should take evidence of the amount of the proceeds. See id. at 1245-46 .

Though decided after the district court entered its sentence, Newman did not announce a new constitutional rule of criminal procedure, and therefore is not barred from retroactive application under Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). See Reina-Rodriguez v. United States, 655 F.3d 1182, 1187 (9th Cir.2011).

Johnson waived any Eighth Amendment challenge to his forfeiture amount in his plea memorandum. See United States v. Joyce, 357 F.3d 921, 922 (9th Cir.2004).

Sentence VACATED and action REMANDED.

This disposition is not appropriate for publication…