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United States v. Johnson

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Oct 5, 2012
485 F. App'x 233 (9th Cir. 2012)

Opinion

No. 11-10201 D.C. No. 2:10-cr-00077-JCM-RJJ-1

10-05-2012

UNITED STATES OF AMERICA, Plaintiff - Appellant, v. VAL JOHNSON, Defendant - Appellee.


NOT FOR PUBLICATION


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding


San Francisco, California

Before: WALLACE, THOMAS, and BERZON, Circuit Judges.

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. Newman, 659 F.3d 1235 (9th Cir. 2011).

Under Newman, 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 (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.


Summaries of

United States v. Johnson

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Oct 5, 2012
485 F. App'x 233 (9th Cir. 2012)
Case details for

United States v. Johnson

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. VAL JOHNSON, Defendant…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Oct 5, 2012

Citations

485 F. App'x 233 (9th Cir. 2012)