United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Anthony Filice's
Motion to Clarify the Court's sentencing order and
absolve Defendant of his joint and several liability for a
money judgment in the amount of $1, 825, 510. (Doc. # 1549).
For the reasons below, Defendant's Motion will be
FACTUAL AND PROCEDURAL BACKGROUND
April 11, 2013, a grand jury returned a superseding
indictment against Defendant and thirty-eight others for
conspiracy to distribute oxycodone. (Doc. # 364). The
indictment included a forfeiture allegation of real property,
currency, and a money judgment of $1, 825, 510, which
represented the “gross proceeds in aggregate obtained
by the defendants” from their alleged criminal
violations, for which “the Defendants are jointly and
severally liable.” Id. On July 18, 2013,
pursuant to a written plea agreement, Defendant pled guilty
to the criminal charge against him. (Docs. # 794 and 795).
The plea agreement specified that Defendant conspired to
knowingly and intentionally distribute oxycodone, and that he
knowingly and voluntarily joined in the conspiracy. (Doc. #
795). Defendant also agreed that he would “forfeit to
the United States all interest in the property listed in the
forfeiture allegation of the Indictment and [would] execute
any documents necessary for this forfeiture.”
Id. at 4.
the United States' notice of filing, the Court entered a
preliminary judgment of forfeiture against the majority of
defendants, including Defendant. (Doc. # 855). At sentencing,
the Court adopted and accepted the findings contained in the
Pre-sentences Investigation Report, including the guideline
calculations that had been prepared by the United States
Probation Office. (Doc. # 1072). The Judgment reflects
Defendant's sentence of imprisonment for 115 months,
followed by 10 years of supervised release, imposed on
December 19, 2013. (Doc. # 1073). Defendant was assessed
$100, with fines and community restitution waived.
Id. at 5. In addition, Defendant was ordered to
forfeit his interest in “[a]ll items listed in the
forfeiture allegation of the superseding indictment.”
Id. at 6. Defendant did not file a direct appeal.
three-and-one-half years later, Defendant filed the instant
Motion, asking the Court to clarify that that he is not
jointly and severally liable for the forfeiture money
judgment amount of $1, 825, 510, and to absolve Defendant of
any responsibility for the money judgment. (Doc. # 1549).
Following a response by the United States (Doc. # 1553),
Defendant replied. (Doc. # 1554). In his reply, Defendant
referred to the recent United States Supreme Court opinion in
Honeycutt v. United States, 137 S.Ct. 1626 (2017).
The Court ordered both the United States and Defendant to
each file a supplemental memorandum specifically addressing
Honeycutt. (Doc. # 1557 and 1570). The United States
and Defendant having responded (Docs. # 1569 and 1573), the
matter is ripe for the Court's review.
Defendant's Motion is waived, untimely, and without
Motion is not the first of its kind to be raised in this
criminal case. In August and September of 2015, three of
Defendant's co-conspirators filed similar motions seeking
relief from the joint and several forfeiture judgment. (Docs.
# 1398, 1399, and 1419). Arguing that the Court had not
complied with the Federal Rules of Criminal Procedure by
failing to advise them of the forfeiture at sentencing, and
that the money judgment was not included in their judgment
entries, the co-conspirators sought an end to the paycheck
deductions imposed by the Bureau of Prisons for payment of
the money judgment. Id. The arguments were identical
to Defendant's; for these same reasons, Defendant's
Motion necessarily fails.
Court denied the co-conspirators' motions on three
grounds. (Doc. # 1443). First, each of the co-conspirators
had waived the right to appeal “any determination made
by the Court at sentencing.” Id. at 2.
Defendant's plea contains the same waiver language. (Doc.
# 795 at 4). Second, the co-conspirators could only challenge
the forfeiture on direct appeal, the time for which had
long-since passed. (Doc. # 1443 at 2 (citing Winkelman v.
United States, 494 Fed.Appx. 217, 220 (3rd Cir. 2012)).
Here too, the time for Defendant to file a direct appeal ran
more than three years ago. Finally, the Court found that the
co-conspirators' motions were without merit, as each of
the co-conspirators had entered pleas specifically agreeing
to forfeiture. (Doc. # 1443 at 3). Thus, the Court found that
there wasno question that they knew of the forfeiture at
sentencing. Id. (citing Fed. R. Crim. P.
32.2(b)(4)(B)). Here, Defendant's plea is nearly
identical, leading to the same conclusion.
Court's determination on one of the co-conspirators'
motions was upheld by the Sixth Circuit. See United
States v. Yancey, 707 Fed.Appx. 342 (6th Cir. 2017). In
its opinion, the Sixth Circuit found that co-conspirator
Yancey had “waived any challenge to any determination
by the court at sentencing, ” that the “plea
agreement included an express provision” of forfeiture
that included the money judgment, and that Yancey
“never once questioned or challenged the money judgment
or the forfeiture” or argued that the plea agreement
was involuntary, unknowing, or ambiguous. Id. at
345. The facts giving rise to Defendant's motion, and
Defendant's plea agreement, waiver, and arguments are no
different than Yancey's, and for this reason
Defendant's motion is denied.
Honeycutt does not require a different
2017, the United States Supreme Court issued an opinion
holding that the language in 21 U.S.C. § 853(a)
“foreclose[s] joint and several liability for
co-conspirators.” Honeycutt, 137 S.Ct. at
1633. The record and this Court's previous findings show
that a sentence of joint and several liability for $1, 825,
510 was imposed on Defendant as a co-conspirator. (Doc. #
1073). If imposed today, such a sentence would run afoul of
Honeycutt. However, this sentence was imposed
several years before Honeycutt was decided. The
question posed in Defendant's reply (Doc. # 1554 at 2) is
thus whether Honeycutt should be applied
retroactively to Defendant's case.
announced a new rule. See Teague v. Lane, 489 U.S.
288, 301 (1989) (“[A] case announces a new rule if the
result was not dictated by precedent existing at the
time the defendant's conviction became final.”).
Whether Honeycutt applies retroactively depends ...