No. 05-1126

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

--- F.3d ----, 2007 WL 2349359, 2007 U.S. App. LEXIS 19735

August 17, 2007, Decided

PRIOR HISTORY:    [*1]

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Juan M. Prez-Gimnez, U.S. District Judge].

COUNSEL:   Mauricio Hernndez Arroyo, with whom Law Offices of Mauricio
Hernndez Arroyo was on brief, for appellant.

Aramis G. Ros, Assistant United States Attorney, with whom Rosa Emilia
Rodriguez-Velez, United States Attorney, Nelson Prez-Sosa, Assistant
United States Attorney, and Mariana E. Bauz-Almonte, Assistant United
States Attorney, were on brief, for appellee.

JUDGES:   Before Lynch and Howard, Circuit Judges, and Young, *
District Judge.
*

Of the District of Massachusetts, sitting by designation.

OPINION BY:   LYNCH

OPINION

LYNCH, Circuit Judge. This case presents our first occasion to address
the bulk cash smuggling provisions of the 2001 USA PATRIOT Act, Pub.
L. No. 107-56, § 371, 115 Stat. 272, 336-38 (codified as amended at 31
U.S.C. § 5332). Defendant Otilio Jose challenges the district court's
forfeiture order in the amount of $ 114,948, arguing that it
constitutes an excessive fine in violation of the Eighth Amendment. He
does not challenge his straight guilty plea to counts arising from his
failure to declare the amount of currency he was attempting to take
with him out of the country. We  [*2]  hold that the forfeiture order
does not constitute an excessive fine, but remand, at the request of
the United States, so that the sum of $ 1,400 can be deducted from the
amount of forfeiture.

I.

On August 23, 2004, Jose checked two pieces of luggage on a flight
departing from Luis Muoz Marn International Airport in Puerto Rico.
Jose was on his way to St. Maarten, Netherlands Antilles. Customs
officers inspected Jose's checked luggage and discovered bundles of
cash wrapped in tissue paper hidden in a pair of sneakers and other
bundles wrapped in carbon paper hidden inside a set of bed sheets. The
officers approached Jose and explained to him the currency reporting
requirements for transported amounts in excess of $ 10,000. See 31
U.S.C. § 5316(a)(1)(A). Jose declared verbally and in writing that he
was in possession of $ 1,400. In fact, the cash on Jose, and in his
luggage, amounted to a hefty $ 114,948. Jose explained that he had
found the money while visiting Puerto Rico. He said that he was at a
San Juan hotel when he saw someone throw something into a trash
container; that individual looked around to see if anyone had seen him
and then left the area. Jose went down to the trash and  [*3]  picked
up a bag which contained a large amount of money. He said to himself,
"This is my fortune, I found it. I put it in my bag and I go home." He
claimed that he was unaware of any reporting requirements.

Jose was arrested on August 23 and later charged in an indictment with
(1) knowingly and willfully failing to file a report when he was about
to transport at one time monetary instruments of more than $ 10,000
from a place in the United States to a place outside the United
States, in violation of 31 U.S.C. § 5316(a)(1)(A) (the "cash reporting
requirement"); (2) making a materially false, fictitious, or
fraudulent statement or representation in a matter within the
jurisdiction of the Department of Homeland Security, an agency of the
United States, in violation of 18 U.S.C. § 1001(a); and (3) knowingly
and willfully concealing more than $ 10,000 in currency in an attempt
to transport such currency from a place in the United States to a
place outside the United States without filing a report as required by
the Secretary of the Treasury, in violation of 31 U.S.C. § 5332(a)
(the "bulk cash smuggling statute"). The indictment also included
allegations seeking forfeiture of the $ 114,948  [*4]  based on the
offenses alleged in Counts One and Three, pursuant to 31 U.S.C. §
5317(c)(1)(A) and 31 U.S.C. § 5332(b)(2), respectively.

On November 4, 2004, Jose entered a straight guilty plea to all three
counts of the indictment. The district court advised defendant of his
rights and found that he had knowingly and voluntarily waived them by
pleading guilty. The court also explained to Jose that by pleading
guilty he could expect the government to proceed to forfeit the money
involved in the offense as a result of the violations of the cash
reporting requirement and the bulk cash smuggling statute. Jose agreed
except for the $ 1,400 he did declare, which he expected to be allowed
to keep. The government clarified that it had already filed
administrative proceedings to try to return the $ 1,400 to defendant.
The government sought forfeiture of the remaining funds, which Jose
had attempted to smuggle, but nothing more than that.

On December 13, 2004, the government requested a preliminary order of
forfeiture for the entire amount of $ 114,948. The government's motion
cited both sections 5317(c)(1)(A) (the cash reporting requirement) and
5332(b)(2) (the bulk cash smuggling statute) as  [*5]  authority for
the forfeiture. It attached a proposed order which referenced
defendant's violation of sections 5316(a)(1)(A) and 5322. The citation
to section 5322, rather than section 5332, clearly was a typographical
error. The government's forfeiture argument at the sentencing hearing
was based on both the cash reporting requirement and the bulk cash
smuggling statute.

At the hearing on December 14, 2004, the district court stated that it
was not so naive as to believe defendant's story about how he came to
possess the $ 114,948. The judge found that Jose had attempted to
mislead the court, and he sentenced Jose to 18 months' imprisonment on
each count, to be served concurrently. Jose also received three years
of supervised release and was ordered to pay a special monetary
assessment of $ 100 on each count. In light of defendant's financial
situation, the court did not impose a fine. Judgment entered on
December 14, 2004; no forfeiture order was included in the judgment,
as provided for under Fed. R. Crim. P. 32.2(b)(3).

On December 20, 2004, the government filed a motion to amend the
judgment, calling the district court's attention to the fact that the
judgment did not include a forfeiture  [*6]  order and to the
outstanding issue concerning the $ 1,400 that Jose had declared. On
December 23, 2004, the district court adopted the government's earlier
proposed order (with its typographical error) and issued a preliminary
order of forfeiture as to the entire amount of $ 114,948. The court
did not amend its earlier judgment to include the forfeiture order.

In December 2005, defendant's appellate counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), asserting that there were no non-frivolous issues for
appeal. On March 21, 2006, this court rejected the Anders brief, but
granted counsel's request to withdraw. We ordered appointment of new
counsel and requested briefing on (1) whether the district court erred
in failing to conform with Fed. R. Crim. P. 32.2, (2) whether the
district court erred in failing to resolve a contested issue regarding
the amount of forfeiture, and (3) whether the forfeiture order
violates the Eighth Amendment's prohibition of excessive fines.
Present counsel for defendant has submitted a merits brief only as to
the third issue outlined in our March 21 order. Accordingly, the first
and second issues have been waived. See United States v. Vigneau, 337
F.3d 62, 68 n.1 (1st Cir. 2003);  [*7]  United States v. Chapdelaine,
23 F.3d 11, 13 (1st Cir. 1994). We consider only whether the district
court's forfeiture order constitutes an excessive fine in violation of
the Eighth Amendment.

II.

The Eighth Amendment provides: "Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted." U.S. Const. amend. VIII. We review de novo whether a fine
is constitutionally excessive, but give due deference to the district
court's factual findings. United States v. Ortiz-Cintron, 461 F.3d 78,
81 (1st Cir. 2006). On appeal from a forfeiture order alleged to be an
excessive fine, it is the defendant's burden to show
unconstitutionality. See id. at 81-82; United States v. Heldeman, 402
F.3d 220, 223 (1st Cir. 2005). Here, we review the forfeiture order
only for plain error because Jose did not raise his Eighth Amendment
claim before the district court. n1 See United States v. Beras, 183 F.
3d 22, 28 (1st Cir. 1999). "To establish plain error, a defendant must
demonstrate that: (1) there was error; (2) the error was plain; (3)
the error affected the defendant's substantial rights; and (4) the
error adversely impacted the fairness, integrity, or public  [*8]
reputation of judicial proceedings." United States v. Riggs, 287 F.3d
221, 224 (1st Cir. 2002) (citing United States v. Olano, 507 U.S. 725,
732-36, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); United States v.
Saxena, 229 F.3d 1, 5 (1st Cir. 2000)).

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Jose argues that his objection at the sentencing hearing to the
forfeiture of the declared $ 1,400 suffices to merit de novo review on
appeal. This argument fails, as defendant never objected to the
forfeiture on Eighth Amendment grounds before the district court.
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Jose's argument relies heavily on the Supreme Court's decision in
United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028, 141 L. Ed.
2d 314 (1998). In Bajakajian, the defendant and his family had failed
to report the $ 357,144 in cash they were attempting to take with them
out of the United States on June 9, 1994. Id. at 324-25. The defendant
pled guilty to a charge of violating 31 U.S.C. § 5316(a)(1)(A) and
elected to have a bench trial on the forfeiture count brought under 18
U.S.C. § 982(a)(1). n2 Id. at 325. The district court found that,
under section 982(a)(1), the entire $ 357,144 was forfeitable because
it was "involved in" the offense. Id. at 325-26. Nonetheless, the
court ordered the forfeiture of only $ 15,000, believing that full
forfeiture  [*9]  would violate the Excessive Fines Clause. Id. at
326. On the government's appeal, the Ninth Circuit held that
forfeiture of currency pursuant to 18 U.S.C. § 982(a)(1) was per se
unconstitutional because unreported currency was not an
"instrumentality" of the crime of failure to report. United States v.
Bajakajian, 84 F.3d 334, 336-38 (9th Cir. 1996).

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At the time, 18 U.S.C. § 982(a)(1) provided: "The court, in imposing
sentence on a person convicted of an offense in violation of
section . . . 5316, . . . shall order that the person forfeit to the
United States any property, real or personal, involved in such
offense, or any property traceable to such property." 18 U.S.C. §
982(a)(1) (1994); see also Bajakajian, 524 U.S. at 325.
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On certiorari, the Supreme Court held that it was irrelevant whether
Bajakajian's money was an instrumentality of his offense. 524 U.S. at
333. Instead, the Court asked first whether the forfeiture constituted
punishment and was thus a "fine" within the meaning of the Excessive
Fines Clause, id. at 327-28, and then considered whether the
forfeiture was constitutionally excessive - - that is, whether the
forfeiture was "grossly disproportional to the gravity of  [*10]  the
defendant's offense," id. at 337. The Court held that the forfeiture
of Bajakajian's money, which was "imposed at the culmination of a
criminal proceeding and require[d] conviction of an underlying
felony," constituted punishment and was thus a "fine." Id. at 328. On
the question of excessiveness, the Court thought it was significant
that the district court had found that Bajakajian's offense was
unrelated to any other illegal activities. Id. at 337-38. Bajakajian
"owed no customs duties to the Government, and it was perfectly legal
for him to possess the $ 357,144 in cash and to remove it from the
United States. His crime was simply failing to report the wholly legal
act of transporting his currency." Id. at 338 n.13. The Court further
considered the maximum penalties available under the statute, as well
as the fact that under the Sentencing Guidelines "the maximum sentence
that could have been imposed on [Bajakajian] was six months, while the
maximum fine was $ 5,000." Id. at 338-39 & n.14. The Court also found
that "[t]he harm that [Bajakajian] caused was . . . minimal." Id. at
339. These observations contributed to the Court's conclusion that the
full forfeiture of Bajakajian's  [*11]  money "would be grossly
disproportional to the gravity of his offense." Id. at 339-40.

Congress responded to Bajakajian in the USA PATRIOT Act when it
amended laws governing civil and criminal forfeiture in the wake of
September 11, 2001. Pub. L. No. 107-56, §§ 319, 371, 372, 115 Stat. at
311-12, 336-39 (amending 18 U.S.C. §§ 981 and 982, 21 U.S.C. § 853,
and 31 U.S.C. § 5317, and creating 31 U.S.C. § 5332). n3 The USA
PATRIOT Act inserted a criminal forfeiture provision in 31 U.S.C. §
5317(c)(1)(A) for property involved in a violation of 31 U.S.C. § 5316
and correspondingly deleted the reference to 31 U.S.C. § 5316 in 18
U.S.C. § 982(a)(1). n4 Id. § 372, 115 Stat. at 338-39.

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For a discussion of the USA PATRIOT Act's civil forfeiture provisions
for interbank accounts, see United States v. Union Bank for Savings &
Investment, 487 F.3d 8 (1st Cir. 2007) (interpreting 18 U.S.C. §
981(k)).4

31 U.S.C. § 5317(c)(1)(A) and the superseded version of 18 U.S.C. §
982(a)(1) are virtually identical. Compare 31 U.S.C. § 5317(c)(1)(A),
with 18 U.S.C. § 982(a)(1) (1994).
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The Act also defined the new crime of "bulk cash smuggling" at 31
U.S.C. § 5332. Id. § 371, 115 Stat. at 337-38. Section 5332(a)(1)
[*12]  provides:

Whoever, with the intent to evade a currency reporting requirement
under section 5316, knowingly conceals more than $ 10,000 in currency
or other monetary instruments on the person of such individual or in
any conveyance, article of luggage, merchandise, or other container,
and transports or transfers or attempts to transport or transfer such
currency or monetary instruments from a place within the United States
to a place outside of the United States, or from a place outside the
United States to a place within the United States, shall be guilty of
a currency smuggling offense and subject to punishment pursuant to
subsection (b).Section 5332(b)(2), in turn, provides for the
forfeiture of "any property, real or personal," involved in the
violation of section 5332(a)(1).

Although the elements of the offense defined at section 5332(a)(1)
largely track those of the offense defined at section 5316(a)(1), n5
section 5332 places its emphasis on the knowing concealment of "more
than $ 10,000 in currency or other monetary instruments," rather than
the requirement to file a report, as in section 5316. Indeed, Congress
attached to section 5332 a note expressing its finding that

[t]he current  [*13]  penalties for violations of the currency
reporting requirements are insufficient to provide a deterrent to the
laundering of criminal proceeds. In particular, in cases where the
only criminal violation under current law is a reporting offense, the
law does not adequately provide for the confiscation of smuggled
currency. In contrast, if the smuggling of bulk cash were itself an
offense, the cash could be confiscated as the corpus delicti of the
smuggling offense. USA PATRIOT Act, Pub. L. No. 107-56, § 371(a)(6),
115 Stat. at 337 (emphases added).

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Section 5316 provides in relevant part:

(a) Except as provided in subsection (c) of this section, a person or
an agent or bailee of the person shall file a report under subsection
(b) of this section when the person, agent, or bailee knowingly --

(1) transports, is about to transport, or has transported, monetary
instruments of more than $ 10,000 at one time --

(A) from a place in the United States to or through a place outside
the United States; or

(B) to a place in the United States from or through a place outside
the United States . . . .
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Congress was explicit that its purposes in enacting section 5332 were
"(1) to make the act of smuggling  [*14]  bulk cash itself a criminal
offense; (2) to authorize forfeiture of any cash or instruments of the
smuggling offense; and (3) to emphasize the seriousness of the act of
bulk cash smuggling." Id. § 371(b), 115 Stat. at 337. Congress was
particularly concerned that the transportation and smuggling of large
sums of cash was a "warning sign[] of drug trafficking, terrorism,
money laundering, racketeering, tax evasion and similar crimes." Id. §
371(a)(3), 115 Stat. at 337. Further, because couriers who attempt to
smuggle cash out of the country are typically low-level employees of
criminal organizations, Congress believed that "only the confiscation
of the smuggled bulk cash can effectively break the cycle of criminal
activity of which the laundering of the bulk cash is a critical part."
Id. § 371(a)(5), 115 Stat. at 337.

Congress, in enacting section 5332, responded to Bajakajian in a way
that it believed would, in most circumstances, constitutionally permit
the full forfeiture of currency not reported to authorities as
required by section 5316. The Report of the House Committee on
Financial Services stated:

The Committee believes . . . that bulk cash smuggling is an inherently
more serious  [*15]  offense than simply failing to file a Customs
report. Because the constitutionality of a forfeiture is dependent on
the "gravity of the offense" under Bajakajian, it is anticipated that
the full forfeiture of smuggled money will withstand constitutional
scrutiny in most cases.H.R. Rep. No. 107-250, at 53 (2001). Section
5332 makes clear that Congress has now prohibited what it calls "bulk
cash smuggling," and that it considers this to be a very serious
offense. Congress has thus tipped the forfeiture equation in favor of
the prosecution in bulk cash smuggling cases. Bajakajian itself stated
that "judgments about the appropriate punishment for an offense belong
in the first instance to the legislature." 524 U.S. at 336 (citing
Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637
(1983) ("Reviewing courts . . . should grant substantial deference to
the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes . . . .");
Gore v. United States, 357 U.S. 386, 393, 78 S. Ct. 1280, 2 L. Ed. 2d
1405 (1958) ("Whatever views may be entertained regarding severity of
punishment, . . . these are peculiarly questions of legislative
policy.")). But see United States v. Ely, 468 F.3d 399, 402 n.2 (6th
Cir. 2006)  [*16]  (stating that the difference between the superseded
version of 18 U.S.C. § 982 and 31 U.S.C. § 5332 "[could not] be viewed
as a meaningful change").

We turn to the question of whether the district court's forfeiture
order was plainly erroneous, given defendant's challenge under the
Excessive Fines Clause. In considering this question, we need not, and
do not, address whether Congress, in enacting section 5332, has
eliminated in all instances any Eighth Amendment concerns with respect
to bulk cash smuggling forfeitures. In light of the facts of this
case, we conclude that there was no error at all, much less plain
error.

We consider first whether the forfeiture order constituted punishment.
See Heldeman, 402 F.3d at 223 ("Forfeitures are subject to the Eighth
Amendment's excessive fines clause 'if they constitute punishment for
an offense.'" (quoting Bajakajian, 524 U.S. at 328)). The order here,
which was "imposed at the culmination of a criminal proceeding," and
which "require[d] conviction of an underlying felony," constituted
punishment. n6 Bajakajian, 524 U.S. at 328.

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The government has not argued on appeal that the forfeiture is merely
a remedial customs remedy that does not constitute  [*17]  punishment
subject to the Excessive Fines Clause. See One Lot Emerald Cut Stones
v. United States, 409 U.S. 232, 237, 93 S. Ct. 489, 34 L. Ed. 2d 438
(1972) (per curiam) (holding that customs statute requiring forfeiture
of undeclared goods concealed in baggage and imposing a monetary
penalty equal to value of goods imposed "remedial rather than punitive
sanctions"). But see Bajakajian, 524 U.S. at 340-41 (distinguishing
between punishment for criminal offenses and civil in rem forfeitures
of goods imported in violation of customs laws).
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Next, we consider whether the forfeiture of the $ 114,948 would be
"grossly disproportional to the gravity of the defendant's offense."
Id. at 337. For Eighth Amendment excessive fine purposes, pertinent
factors include: "(1) whether the defendant falls into the class of
persons at whom the criminal statute was principally directed; (2)
other penalties authorized by the legislature (or the Sentencing
Commission); and (3) the harm caused by the defendant." Heldeman, 402
F.3d at 223; see also Bajakajian, 524 U.S. at 337-40; Beras, 183 F.3d
at 29.

On the first factor, we inquire whether the statute is principally
directed toward defendant. Given that we take the forfeiture order to
be  [*18]  independently based on Count Three, we consider whether
section 5332, the bulk cash smuggling statute, is designed for
offenders like Jose. In its USA PATRIOT Act findings, Congress
recognized that "couriers who attempt to smuggle . . . cash out of the
United States are typically low-level employees of large criminal
organizations." Pub. L. No. 107-56, § 371(a)(5), 115 Stat. at 337
(emphasis added). Here, the district court did not find that
defendant's funds were not linked to other crimes, as was the case in
Bajakajian. See 524 U.S. at 326. Although it is true that the district
court did not expressly find that the funds were related to illegal
activities, n7 it is Jose who bears the burden of showing that the
forfeiture is unconstitutional. See Ortiz-Cintrn, 461 F.3d at 81-82;
Heldeman, 402 F.3d at 223. Indeed, defendant's far-fetched story
explaining how he found the money raises serious suspicions about
whether the funds were legally derived. Forfeitures based on
violations of the bulk cash smuggling statute are principally directed
toward money launderers, drug traffickers, tax evaders, and
terrorists, as well as their couriers. See USA PATRIOT Act, Pub. L.
No. 107-56, § 371(a)(3),  [*19]  (5), 115 Stat. at 337. Given the
facts of this case and Jose's unlikely story, we cannot say that
section 5332 is not principally designed for persons such as
defendant.

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After the district court announced Jose's sentence, defense counsel
characterized the court as having found that the funds were "related
to a drug offense." The judge responded:

I didn't say that at any moment. . . . I said that [Jose's]
story . . . as to how he came about the money is hard to believe. And
I am not so naive as to think that somebody would throw away $ 114,948
in a trash can. That is all I said. I didn't use anything about drugs,
Counselor.
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Turning to the second factor, Jose, like Bajakajian, faced a statutory
maximum of 5 years' imprisonment. See 31 U.S.C. §§ 5322(a), 5332(b)
(1); Bajakajian, 524 U.S. at 339 n.14. Jose, however, faced a tougher
Guidelines sentence than Bajakajian. The maximum Guidelines sentence
that could have been imposed on Jose was 18 months' imprisonment and a
fine of $ 30,000, whereas the maximum Guidelines sentence that could
have been imposed on Bajakajian was 6 months' imprisonment and a fine
of only $ 5,000. Thus, the forfeiture at issue here is less than 4
times the maximum  [*20]  fine allowable under the Guidelines, whereas
the forfeiture in Bajakajian exceeded the maximum fine under the then-
mandatory Guidelines by a factor of more than 70. This undermines
Jose's argument that the forfeiture order is grossly out of proportion
to the gravity of his offense. See Beras, 183 F.3d at 29 n.5 (noting
that Bajakajian "suggests that the maximum penalties provided under
the Guidelines should be given greater weight than the statute because
the Guidelines take into consideration the culpability of the
individual defendant").

The third factor requires us to evaluate the harm caused by defendant.
We consider the harm caused by Jose's violation of section 5332, the
bulk cash smuggling statute. As Congress stated in its enactment of
the USA PATRIOT Act, it wanted to "emphasize the seriousness of the
act of bulk cash smuggling." Pub. L. No. 107-56, § 371(b), 115 Stat.
at 337. Further, Congress found a link between the laundering of bulk
cash and various types of serious criminal activity. See id. § 371(a)
(3), 115 Stat. at 337. It expressly tied the enforcement of section
5332 to efforts to "break the cycle of criminal activity of which the
laundering of the bulk cash is a  [*21]  critical part." Id. § 371(a)
(5), 115 Stat. at 337. We adhere to Congress's view that defendant's
violation of the bulk cash smuggling statute constitutes a significant
harm. Compare Bajakajian, 524 U.S. at 339 ("Failure to report
[Bajakajian's] currency affected only one party, the Government, and
in a relatively minor way. . . . Had his crime gone undetected, the
Government would have been deprived only of the information that $
357,144 had left the country.").

Thus far we have concluded: (1) defendant's funds may well have been
linked to other criminal activities, (2) the amount of forfeiture is
not grossly out of line with the maximum fine authorized by the
Sentencing Guidelines, and (3) Congress has clearly expressed its
belief that bulk cash smuggling is a serious offense linked to various
kinds of harm. The consideration of a fourth factor makes abundantly
clear that there was no error here. n8

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Even if we were measuring forfeiture by section 5316, the cash
reporting requirement, we would still find no violation of the
Excessive Fines Clause.
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The Supreme Court noted in Bajakajian that the Excessive Fines Clause
was taken from the English Bill of Rights of 1689. 524 U.S. at 335;
see  [*22]  also Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 266-67, 109 S. Ct. 2909, 106 L. Ed. 2d
219 (1989). The English Bill of Rights of 1689 was passed in response
to the subversion of Magna Charta by Stuart judges who imposed
excessive fines. Bajakajian, 524 U.S. at 335. Magna Charta, in turn,
required that "amercements (the medieval predecessors of fines) should
be proportioned to the offense and that they should not deprive a
wrongdoer of his livelihood." Id. (emphasis added); see also id. at
335-36 ("'A Free-man shall not be amerced for a small fault, but after
the manner of the fault; and for a great fault after the greatness
thereof, saving to him his contenement; (2) and a Merchant likewise,
saving to him his merchandise; (3) and any other's villain than ours
shall be likewise amerced, saving his wainage.'" (quoting Magna
Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6-7 (1762 ed.))).
Given the history behind the Excessive Fines Clause, it is appropriate
to consider whether the forfeiture in question would deprive Jose of
his livelihood. Cf. Bajakajian, 524 U.S. at 339-40 & n.15 (concluding
that the full forfeiture sought by the government would be grossly
disproportional to the  [*23]  gravity of defendant's offense, but
noting that defendant did not present any arguments regarding wealth,
income, or deprivation of livelihood).

It cannot reasonably be argued that forfeiture of the $ 114,948 would
deprive defendant of his livelihood. As the district court noted at
sentencing, "according to [Jose's] own words, th[e] money wasn't his
to start with. . . . So whether the government forfeits it or not, it
is really of no consequence to him because it wasn't his to be
forfeited." The money, by defendant's own admission, was not related
to efforts to maintain his livelihood. Further, at the change of plea
hearing, the government indicated that Jose's business merchandise,
which was taken from him in Puerto Rico, was in the process of being
sent to his wife in St. Maarten so that she could resell the goods
there, in accordance with Jose's business practice. We conclude that
the forfeiture order does not implicate the historical concerns
underlying the Excessive Fines Clause.

For the foregoing reasons, we hold that defendant has failed to show
that there was error, much less error that was plain. The amount of
forfeiture simply is not "grossly disproportional to the gravity
[*24]  of the defendant's offense." Id. at 337.

The government has requested a limited remand so that it can pursue
its intention, stated at the change of plea hearing, to return to
defendant the $ 1,400 he declared. The government plans to move to
amend the district court's order to reflect the remaining balance of $
113,548. We remand for this limited purpose. In all other respects, we
affirm the district court's forfeiture order.