UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. $112,061.00 IN UNITED STATES CURRENCY, Defendant.

------------------------------ JAMIE SANCHEZ, Claimant - Appellant. No. 16-1388 (D.C. No. 1:14- CV-02823-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , BALDOCK , and BRISCOE , Circuit Judges.

________________ _________________ In this in rem civil forfe iture of $112,061.00, claima nt Jamie Sanchez appeals the summary judgment granted to the government . He claimed to be the owner of the currency that law enforcement officers found in his residence. The action was filed

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2017
Elisabeth A. Shumaker Clerk of Court2 pursuant to 21 U.S.C. § 881(a)(6), which au thorizes forfeiture of currency used in illicit drug trafficking.
I. Background Mr. Sanchez filed a Verified Claim to the currency, as authorized by 18 U.S.C. § 983(a)(4)(A) and Rule G(5)(a) of th e Supplemental Rules for Admiralty or Maritime Claims and Asset Fo rfeiture Actions. He then filed a Motion to Apply the Exclusionary Rule seeking to exclude th e evidence, including the subject currency, obtained pursuant to a search warrant fo r his residence. The district court 1 observed that a Colorado state court ha d addressed the same issue in its criminal proceedings against Mr. Sanchez. The state court rule d that although the se arch warrant was an impermissible general warrant , the good-faith exception to the warrant requirement applied. Accordingly, the state court de nied Mr. Sanchez’s mo tion to suppress the evidence. The district court applied the doc trine of issue preclusion, also known as collateral estoppel, and denied the motion to suppress the evid ence in the present

case. The government filed a motion for su mmary judgment asserting the following facts: (1) drug-enforcem ent officers purchased coca ine from Mr. Sanchez on two occasions in 2013; (2) at those times, Mr. Sanchez was on parole from a drug conviction; (3) during a parole visit to Mr. Sanchez’s resi dence on May 15, 2014, officers found a large sum of cash and two handguns in a bedside drawer; (4) because

1 The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).3 Mr. Sanchez was prohibited by the conditions of his parole fro m possessing weapons, upon discovery of the handguns the parole officers contact ed the police department who arranged for a search wa rrant; (5) in executing the se arch warrant officers found additional cash underneath a sofa and in the tr unk of a car in the ga rage; (6) the total amount of currency located and seized from Mr. Sanchez’s residence was $112,061.00 and is the defe ndant currency herein; (7) th e search also revealed kilo-sized packaging materi al and lacquer thinner (d rug-packaging materials); (8) Mr. Sanchez entered a guilty plea in Co lorado state court to unlawful distribution based on the 2013 drug sales; and (9) Mr. Sanchez’s annual sala ry for the years 2011 through 2014 did not exceed $24,000 and he had declined to answer discovery regarding other sources of in come. Based on these facts, the government alleged that the defendant currency was th e proceeds from Mr. Sanchez’ s unlawful distribution of controlled substances. Mr. Sanchez responded to the governme nt’s summary-judgment motion with only a single paragraph reiterating his position th at the district cour t “was incorrect in determining the doctrine of Collateral Estoppel precluded his Motion to Apply the Exclusionary Rule.” Aplee. Supp. App. at 96. After analyzing the undisputed factual allegations in light of the applicable law, the district court granted summary judgment to the government.
II. Applicable Law The government had the burden “to establish a ‘substantial connection between the property and [a criminal] offense.’” United States v. $252,300.00 in4 U.S. Currency , 484 F.3d 1271, 1273 (10th Ci r. 2007) (quoting 18 U.S.C. § 983(c)(3)). The governme nt contended the currency wa s traceable to the illegal sale of narcotics and Mr. Sanchez was a dr ug dealer with past drug convictions and insufficient legitimate inco me to establish lawful ow nership of the currency. “We review de novo the district c ourt’s grant of summary judgment.” United States v. 16328 S. 43rd E. Ave. , 275 F.3d 1281, 1284 (10t h Cir. 2002). Summary judgment shall be granted “if the movant show s that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When we apply this st andard, we examine the record and any reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” 16328 S. 43rd E. Ave. , 275 F.3d at 1284. If the opposing party “fails to properly address another party’ s assertion of fact,” a dist rict court may consider the fact undisputed and “grant summary j udgment if the mo tion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2 ) & (3). “Of course, in granting summary judgment based upon a failure to respond, a district court must still determine that summary judgment is appropriate.” Perez v. El Tequila, LLC , 847 F.3d 1247, 1254 (10th Cir. 2017).
III. Analysis The district court conducted the requi red summary-judgment analysis. In opposing summary judgment merely by relyi ng on the same arguments made in his Motion to Apply the Exclusionary Rule , Mr. Sanchez failed to dispute the5 government’s asserted facts. This is fatal to his case. See Kilcrease v. Domenico Transp. Co. , 828 F.3d 1214, 1226 (10th Cir. 2016) (affirming summary judgment because nonmoving party failed to dis pute moving party’s material factual assertions). We conclude that based on the undisputed facts, the government was entitled to judgment as a matter of law. Although we affirm the summary judgm ent due to Mr. Sanchez’s failure to controvert the material facts, we nevertheless consider hi s challenge to the district court’s order denying the Motion to Apply the Exclusionary Rule. The district court held that the doctrine of issue preclusi on barred relitigation of the state court’s decision to deny Mr. Sanchez’ s suppression motion. The pr eclusive effect of a state court judgment is gove rned by state law. Marrese v. Am. Acad. of Orthopaedic Surgeons , 470 U.S. 373, 380 (1985)

. Under Colorado law, th e doctrine of issue preclusion prohibits relitig ation of an issue when: (1) The issue precluded is identical to an is sue actually litigated and necessarily adjudicated in the prior pr oceeding; (2) The party against whom estoppel was sought was a party to or wa s in privity with a party to the prior proceeding; (3) There was a final judg ment on the merits in the prior proceeding; and (4) The party against wh om the doctrine is asserted had a full and fair opportunity to litigate th e issues in the prior proceeding. McNichols v. Elk Dance Colo., LLC (In re Water Rights of Elk Dance Colo. , LLC) , 139 P.3d 660, 667 (Colo. 2006) (en banc) (internal quotation marks omitted). Mr. Sanchez contends that issue precl usion does not apply because the charges arising from the search of hi s residence were dropped, so he was unable to appeal the suppression ruling. He avers, without citation to the record , that the charges to which6 he entered a guilty plea were unrelated to the charges arising fro m the search of his residence. Consequently, he argues, he could not have appealed the state court’s order denying his moti on to suppress. The record reflects, however, that Mr. Sa nchez was charged in state court in a single proceeding, case number 14CR2225, with two counts of distribution of cocaine based on 2013 cocaine sales, one count of possession of a weapon by a previous offender based on the 2014 search of his residence, and three habitual criminal counts. Aplee. Supp. App. at 14-16. The record further shows that Mr. Sanchez’s plea agreement in stat e court case number 14CR2225 included a provision whereby the prosecution agreed to dismiss counts two through six in exchange for Mr. Sanchez’s guilty plea to count one. Id. at 69-70. The order denying the motion to suppress bears the same case number. Aplt. App. at 47. Thus, it appears that after the st ate court denied his suppr ession motion, Mr. Sanchez entered a guilty plea to count one and the rema ining counts were di smissed. If this was not the case, it was incumbent on Mr . Sanchez to provide, and cite to, the documents supporting his position. See United States v. Brody , 705 F.3d 1277, 1281 (10th Cir. 2013) (rejecting appellate claims because a ppellant failed to provide a sufficient record); 10th Cir. R. 10.3(A) (“ Counsel must designate a record on appeal that is sufficient for considering and deciding th e appellate issues.”). By entering into the plea agreement Mr . Sanchez “forfeit[ed] his right to appellate review of the suppression of evidence,” Neuhaus v. People , 289 P.3d 19, 23 (Colo. 2012) (en banc). In addition, th e plea agreement includes a waiver of “the7 right to appeal any conviction.” Aplee. Supp. App. at 71. Mr. Sanchez cannot now be heard to complain that he was denied an opportunity for meaningful appellate review of his suppression motion. Cf. Carpenter v. Young ex. rel Young , 773 P.2d 561, 568 (Colo. 1989) (e n banc) (holding summary judgment was entitled to preclusive effect because all criteria were met including the right to review, even though the parties “waived any right to su ch review when they entered into [a] settlement agreement”).
IV. Conclusion The district court’s judgment is affirmed.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge