## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 6 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ONE PARCEL PROPERTY LOCATED AT THE NORTH HALF (N 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION THIRTEEN (13) AND GOVERNMENT LOT SEVEN (7) IN THE SOUTHEAST QUARTER (SE 1/4) OF SECTION FOURTEEN (14), ALL IN TOWNSHIP THIRTY-ONE (31) SOUTH, RANGE TWO (2) EAST OF THE 6th P.M., SUMNER COUNTY, KANSAS, TOGETHER WITH A 20' ROAD EASEMENT DESCRIBED AS BEGINNING 495.00 FEET WEST OF THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 13, TOWNSHIP 31 SOUTH, RANGE 2 EAST OF THE 6th P.M., THENCE NORTH PARALLEL TO THE EAST LINE OF SAID QUARTER SECTION A DISTANCE OF 1315.80 FEET, SAID EASEMENT BEING 10.00 FEET EACH SIDE OF SAID LINE, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON,

Defendant-Appellee, No. 96-3066-2-

MITCHEAL EDMONSON,

Claimant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DISTRICT OF KANSAS

(D.C. No. 90-1363-PFK)

Submitted on the briefs: Jackie N. Williams, United States Attorney, Annette B. Gurney, Assistant United States Attorney, and Connie R. DeArmond, Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellant. Mitcheal Edmonson, pro se.
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

.

PER CURIAM.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. The United States appeals the district court’s orde r granting claimant Edmonson’s request for return of the defendant real property, forfeited pursuant to 21 U.S.C. § 881(a)(7) as property used to commitor facilitate drug crimes. In-3-

1990, Edmonson was convicted of the crimes of consp iracy to possess cocaine with intent to distribute, possession of ten kilogr ams of cocaine with intent to distribute, and possession of 2.25 kilograms of mar ijuana with intent to distribute.
See United States v. Edmonson , 962 F.2d 1535, 1538 (10th Cir. 1992). He was sentenced to ten years and one month in federal pri son. Id. On July 17, 1992, pursuant to the government’s motion, a decree of fo rfeiture was entered, and the defendant property was subsequently sold. On Febru ary 13, 1995, claimant Edmonson filed a motion for return of the defendant property. Based on the undisputed facts, the district court granted claima nt’s motion on January 23, 1996. The district court subsequently entered a stay of t hat order pending appeal. In his request for return of the defendant property , claimant argued that the forfeiture was an additional punishment for his dru g convictions, prohibited by the Double Jeopardy Clause. He also claimed that t he forfeiture amounted to an excessive fine in violation of the Eighth Amendment . The district court ordered the defendant property returned to claimant based o n the Double Jeopardy Clause. “We review questions of constitutional law and disp ositions on summary judgment de novo.” United States v. 829 Calle de M adero , 100 F.3d 734, 736 (10th Cir. 1996). After the district court entered its order, the Supreme Court held that civil forfeitures under § 881(a)(7) are n ot punishment for purposes of the Double Jeopardy Clause. United States v. Ursery , 116 S. Ct. 2135, 2149-4-

(1996). Therefore, we must reverse the district co urt’s order unless the forfeiture ran afoul of the Eighth Amendment’s proscription ag ainst excessive fines. A civil in rem forfeiture under § 881(a)(7) “constitutes ‘paymentto a sovereign as punishment for some offense’ and, as s uch, is subject to the limitations of the Eighth Amendment’s Excessive Fin es Clause.” Austin v. United States , 509 U.S. 602, 622 (1993)(citation omitted). A pr oportionality analysis is required in civil in rem forfeiture proceedings. 829 Calle de Madero , 100 F.3d at 738. The first step in the analysis is the instrumentality test, requiring the government to show a connection between the for feited property and the criminal offense. Id. “If the instrumentality test is satisfied, the fo rfeiture will not be considered excessive unless the . . . claima nt then shows that the forfeiture is grossly disproportionate in light of the totality of the circumstances.” Id. Factors relevant to the proportionality inquiry are the severity of the offense with which the property was involved, including the exte nt of the claimant’s and the property’s involvement, the nature and scope of the underlying illegal operation, the personal benefit the claimant received, the val ue of the contraband involved, and the maximum sanction authorized by Congress forthe offense. Id. We also consider the culpability of the claimant, and the h arshness of the sanction imposed, including the value of the forfeited prope rty, its function, and other sanctions imposed on the claimant. Id.-5-

Applying those principles to this case, we first de termine that the undisputed facts satisfy the instrumentality test. The drugs were buried on the defendant property, and claimant Edmonson’s fingerp rint was found on a bag of buried marijuana. We next consider the sanctions imposed. Claimant E dmonson was sentenced to serve ten years in prison. The senten cing court did not impose a punitive fine. Edmonson , 962 F.2d at 1548. The market value of the defend ant property was $47,700. “Against these sanctions, we consider the serious n ature of the offense with which [claimant Edmonson] and the forfeited property were involved.” United States v. One Parcel Property Located at Lot 85 , 100 F.3d 740, 744 (10th Cir. 1996). Claimant was convicted of three drug crimes involving conspiracy and possession with intent to distribute cocaine and ma rijuana. Large amounts of cocaine and marijuana were found buried on the defe ndant property. The maximum fine authorized by Congress for each cocain e conviction was $2,000,000. For the marijuana conviction, the maxi mum authorized fine was $250,000. In view of the seriousness of these offe nses and the sanctions imposed, forfeiture of the defendant property is not disprop ortionate and does not violate the Excessive Fines Clause.-6-

The government’s motion to supplement the record on appeal with the special warranty deed reflecting the sale of the de fendant property is granted. The judgment of the United States District Court fo r the District of Kansas is REVERSED and REMANDED for entry of an order consist ent with this opinion. The mandate shall issue forthwith.