Opinion
No. 10-412-cr.
February 23, 2011.
Appeal from the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
David V. DeRosa, Law Offices of David V. DeRosa, Naugatuck, CT, Donald J. Cretella, Zingaro and Cretella, LLC, Bridge-port, CT, for Appellant.
S. Dave Vatti, Elizabeth A. Latif, Assistant United States Attorneys, for David B. Fein, United States Attorney for the District of Connecticut, Hartford, CT, for Appellee.
SUMMARY ORDER
A jury convicted Mark Nalbandian of possessing marijuana with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii), as well as conspiring with another to do so, see id. § 846. The district court sentenced him to 87 months' imprisonment, 48 months' supervised release, an $80,000 fine, and a $200 special assessment — all falling within the applicable Guidelines ranges.
On appeal, Nalbandian challenges only his fine. To the extent he argues that his fine violated the Excessive Fines Clause of the Eighth Amendment, we disagree. A fine of $80,000 is not "grossly disproportional to the gravity" of his crime, United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), which involved the international transport of roughly $1.4 million dollars worth of marijuana. Nor do we think the fine substantively unreasonable, for essentially the same reason.
Nalbandian's primary claim is that the district court improperly shifted the burden to him "to establish a reasonable amount of the fine." But the only burden the district court placed on Nalbandian was the burden of "establish[ing] that . . . he is not able and . . . not likely to become able to pay all or part of the fine required." U.S.S.G.§ 5E1.2(e). The district court was correct in placing this burden on him. See United States v. Corace, 146 F.3d 51, 56 (2d Cir. 1998). Nor did the district court err in its assessment of whether he met that burden, either because of his initial CJA affidavit or otherwise. The record amply supports the district court's refusal to credit Nalbandian's claim that he lacked any resources, and the magistrate judge's finding of indigence qualifying Nalbandian for appointed counsel, made at the outset of the case, was based on a much skimpier record than was available to the district court at sentencing.
Finally, Nalbandian claims that it was error to assess the $80,000 fine in addition to the forfeiture of $27,000 cash that was found in his apartment, and that at very least the forfeited cash should offset the fine. But the civil forfeiture of Nalbandian's cash does not affect his fine under § 841, because the law requires that "[a]ny penalty imposed for violation of this subchapter [including § 841] shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law." 21 U.S.C. § 847. Even assuming that Nalbandian's case fell under the criminal forfeiture provision that he cites, 21 U.S.C. § 853(a), he still would not prevail, because that provision too explicitly requires forfeiture "in addition to any other sentence imposed pursuant to this subchapter." We see no error here.