Michael M. Losavio, Louisville, Kentucky, for Appellant.
Debra Teufel Phillips, Sandra Ganus Moses, United States Attorney's Office, Nashville, TN, for Appellee.
Before: KEITH, GUY, and GIBBONS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge.
Defendant Erica Lynn Hampton appeals from the forfeiture money judgment entered against her as part of the sentence imposed following her plea-based convictions for wire fraud and access device fraud. Hampton contends that it was plain error for the district court to enter a forfeiture money judgment when, because she had no assets, neither the indictment nor the forfeiture order identified any specific assets, proceeds, or assets purchased with proceeds of the unlawful activity. That is, despite the consensus among the circuits to the contrary, Hampton argues that a forfeiture money judgment may not be entered against future assets. Finding no merit to this claim, we affirm.
The 24-count indictment charged Hampton with wire fraud in violation of 18 U.S.C. § 1343 (counts 1-18), access device fraud in violation of 18 U.S.C. § 1029(a)(5) (counts 19-22), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (counts 23-24), in connection with a scheme to defraud and obtain money using fraudulent merchant accounts, ACH payments, and credit card transactions between September 2007 and April 2008. In addition, the indictment sought criminal forfeiture of the proceeds, and any property obtained directly or indirectly with proceeds, of the wire fraud counts and the access device fraud counts, " including but not limited to a money judgment in the minimum amount[s] of $77,193.01" and " $44,227.43," respectively. Finally, the government sought forfeiture of substitute property, if the requirements in 21 U.S.C. § 853(p) were met, up to the value of the forfeitable property described above, " including but not limited to a money judgment in the minimum amount of $121,420.44."
The Rule 11 Plea Agreement provided that, with dismissal of the remaining charges, Hampton would plead guilty to one count of wire fraud (count 15) and one count of access device fraud (count 21). The agreement detailed the factual basis for the offenses of conviction and Hampton's relevant conduct, including a stipulation that her conduct involved intended losses totaling $141,769.77 and estimated actual losses of $77,312.86. Hampton acknowledged that restitution would be required in the amount of the actual losses,
and also agreed to entry of a judgment of forfeiture of approximately $77,312.86 as proceeds of the violations alleged in the counts of conviction. Finally, in acknowledgment that Hampton had insufficient resources to pay restitution, the parties agreed during the plea hearing to revise the agreement to provide that any assets located through forfeiture would be applied to the victims and the forfeiture reduced accordingly. After determining that the plea was knowing and voluntary, the district court reserved its acceptance until sentencing.
Shortly after the plea hearing, the government filed its " Motion for Order of Forfeiture Consisting of a $77,312.86 United States Currency Money Judgment." In no uncertain terms, the motion, memorandum in support, and proposed order sought a personal money judgment forfeiture against Hampton as part of her sentence. The government recounted the forfeiture allegations made in the indictment, urged the court to find that the requisite nexus to the offenses had been established by the stipulations in the plea agreement, and averred that the requirements of 21 U.S.C. § 853(p) had been satisfied such that it could move to amend the order at any time to seek forfeiture of substitute property to satisfy the money judgment. Hampton did not file a response or otherwise object to the proposed order of forfeiture.
The presentence report, which was accepted without objection, acknowledged the stipulation that $77,312.86 was subject to forfeiture as proceeds of the offenses of conviction but clarified that the amount of actual loss had turned out to be $69,540.01. On that basis, defense counsel requested at sentencing that the amounts of both the restitution and the forfeiture judgment be reduced to $69,540.01. Agreeing, the district court directed the government to refile its motion for forfeiture money judgment to reflect the corrected amount; ordered mandatory restitution in the corrected amount; and imposed concurrent (below-Guidelines) sentences of 18 months of imprisonment to be followed by two years of supervised ...