United States of America v. Carmen Denise Mosley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARMEN DENISE MOSLEY,
Defendant - Appellant.
No. 14-10395
D.C. No. 2:13-cr-00267-KJD-
PAL-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Submitted November 16, 2015**
San Francisco, California
Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and MORRIS,*** District
Judge.
FILED
JUN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.

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Carmen Mosley appeals her 57-month prison term, the $1,172,000 in
restitution she was ordered to pay, and the district court’s order that she forfeit all
of the criminal proceeds obtained by the conspiracy of which she was a part, an
amount totaling $2,145,014.50.
I
The “courts of appeals must review all sentences . . . under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
“[A]ppellate review of sentencing decisions is limited to determining whether they
are ‘reasonable.’” Id. at 46. A sentence “will usually be reasonable” if it falls
within the range recommended by the Sentencing Guidelines. United States v.
Carty, 520 F.3d 984, 994 (2008) (en banc) (quoting Rita v. United States, 551 U.S.
338, 351 (2007)).
District courts enjoy “broad discretion” when they sentence offenders. E.g.,
United States v. Booker, 543 U.S. 220, 233 (2005). Nevertheless, sentencing
judges must consider a handful of factors in the course of doing so. See 18 U.S.C.
§ 3553(a). For one, courts “shall consider . . . the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
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Mosley concedes that her 57-month sentence fell within her correctly
calculated Guidelines range. It was not unreasonable for the district court to give
Mosley such a sentence while also giving her co-defendant, Zulfiya Karimova, a
much lighter one. The most straightforward reason is that Mosley and Karimova
are not similarly situated offenders, so the gap between their sentences does not
suggest that the district court was indifferent to unwarranted disparities.
Unlike Mosley, Karimova cooperated with the government and played a key
role in its investigation, pled guilty, and testified at Mosley’s trial. These
circumstances triggered a Guidelines range of 12–18 months for Karimova, in stark
contrast to the 57–71 months recommended for Mosley. Moreover, the district
court found that Karimova demonstrated compelling family circumstances that
justified giving her a below-Guidelines sentence. None of the above could be said
for Mosley. In short, the record reflects that the district court was far from
inattentive to unwarranted disparities. Instead, the court here took seriously “the
need to avoid unwarranted similarities among other co-conspirators who were not
similarly situated.” Gall, 552 U.S. at 55.
Moreover, because “the District Judge correctly calculated and carefully
reviewed the Guidelines range, he necessarily gave significant weight and
consideration to the need to avoid unwarranted disparities.” See id.
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II
A
We decline to review Mosley’s evidentiary challenge to the amount of
restitution she was ordered to pay because Mosley clearly waived such challenge.
See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997). Waiver applies
because Mosley was “aware of” and “knew of” the error she now seeks to redress
for the first time on appeal, and explicitly abandoned her objection before the
district court. See id.
Not only did Mosley not object to the restitution amount the district court
imposed, but at her sentencing hearing she affirmatively, repeatedly, and
unequivocally agreed to it. What is more, in court filings prior to sentencing
Mosley indicated an intention to raise the exact same evidentiary argument she
presses now, but then expressly relinquished it when asked by the district court.
B
A restitution amount violates the Eighth Amendment if it is “grossly
disproportional to the crime committed.” United States v. Dubose, 146 F.3d 1141,
1145 (9th Cir. 1998). Here, “because the full amount of restitution is inherently
linked to [Mosley’s] culpability,” the restitution order requiring her to compensate
the conspiracy’s victims in the full amount of their loss is not excessive. Id.
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Moreover, “an Eighth Amendment gross disproportionality analysis does not
require an inquiry into the hardship [restitution] may work on the offender,” id.,
and thus, Mosley’s likely inability to pay the order is irrelevant. Finally, Mosley
cites nothing to support her argument that restitution may become unconstitutional
when coupled with a prison term.
III
A
Federal law mandates that if an offender is convicted of violating, or
conspiring to violate, 18 U.S.C. § 1344, the court “shall order” such offender to
“forfeit to the United States any property constituting, or derived from, proceeds
the person obtained directly or indirectly, as the result of” his crime. 18
U.S.C. § 982(a)(2). Curiously, “forfeiture” may extend to property no longer in
existence and sometimes even to property the defendant never actually possessed, a
counter-intuitive interpretation made by prior precedent. See United States v.
Newman, 659 F.3d 1235, 1241–45 (9th Cir. 2011). The district court did not err in
ordering Mosley to forfeit the entire amount of the conspiracy’s illegal proceeds.
Mosley’s challenge is foreclosed by Newman, which held that “[f]or
purposes of criminal forfeiture, the ‘proceeds’ of a fraudulently obtained loan
equal the amount of the loan. Moreover, [where an offender] enter[s] into a
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conspiracy, the ‘proceeds’ of his crime equal the total amount of the loans obtained
by the conspiracy as a whole.” Id. at 1244 (internal citations omitted) (emphasis
added).
Under Newman, Mosley may be ordered to forfeit up to the entire amount of
the loans she and her co-conspirators obtained by defrauding the banks. It makes
no difference that Mosley’s role was not particularly lucrative, or that she may not
have enjoyed all of the loan proceeds personally; Newman squarely holds that, for
purposes of the criminal forfeiture statute, she “obtained” the entire amount by
virtue of her role in the conspiracy to obtain such amount.
Mosley derives no help from Judge Berzon’s remarks in her concurring
opinion in United States v. Davis, 706 F.3d 1081, 1085 (9th Cir. 2013) (Berzon, J.,
concurring). The crucial difference between Davis and Mosley is that the money
Davis laundered arguably did not represent “proceeds” of the conspiracy he
entered. Davis was not alleged to have conspired to “obtain” the stolen money, but
only to have laundered it after other people had acquired it through crimes he had
nothing to do with. Id. at 1082 (majority opinion). Mosley, by contrast, did
“obtain” and “possess” the entire amount of the loan proceeds because she joined
in a conspiracy to obtain such proceeds. The question of how much of the
proceeds Mosley “obtained” or “possessed” is not an evidentiary question;
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possession of the entire amount is attributed to her by operation of law because she
joined in a conspiracy to obtain it. That is the holding of Newman, and Judge
Berzon’s concurrence in Davis does not call it into question.
B
Mosley’s evidentiary challenge to the amount of the forfeiture order is
baseless. The government submitted voluminous trial exhibits that more than
substantiate the requested forfeiture amount. Moreover, Mosley consented to the
admission of such exhibits, and at her sentencing hearing she never contested the
evidentiary basis for the proposed order. The district court committed no error by
declining to say more on the subject.
C
Mosley’s forfeiture order was imposed against her personally at sentencing
and is therefore subject to the Excessive Fines Clause of the Eighth Amendment.
United States v. Beecroft, — F.3d —, No. 12-10175 (9th Cir. 2016). Mosley raised
an Excessive Fines Clause objection in the district court. At the time of her
sentencing, however, our Circuit’s case law was not clear as to whether the Eighth
Amendment applies to criminal forfeiture orders like hers. Compare United States
v. Real Property Located at 22 Santa Barbara Drive, 264 F.3d 860, 874 (9th Cir.
2001) (suggesting broadly that Eighth Amendment does not apply to proceeds
forfeitures), with United States v. 3814 NW Thurman Street, 164 F.3d 1191,
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1197–98 (9th Cir. 1999) (holding that Eighth Amendment does apply at least to
civil in rem proceeds forfeitures). Perhaps given such uncertainty, the district
court appears not to have considered Mosley’s Eighth Amendment objection
before imposing her forfeiture order. In our more recent decision in Beecroft,
however, we clarified that the Eighth Amendment does indeed apply to in
personam criminal proceeds forfeiture orders like the one imposed against Mosley.
Beecroft, — F.3d at __. We therefore vacate Mosley’s forfeiture order so that the
district court can undertake an excessiveness analysis in the first instance.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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