United States Court of Appeals,

Eleventh Circuit.

No. 94-6643.

UNITED STATES of America, Plaintiff-Appellee,

v.

ONE PARCEL PROPERTY LOCATED AT 427 AND 429 HALL STREET,

MONTGOMERY, MONTGOMERY COUNTY, ALABAMA, WITH ALL APPURTENANCES AND

IMPROVEMENTS THEREON a/k/a G & G Grocery, Defendant,

George Thomas Jenkins, Claimant-Appellant,

Fleet Finance, Inc., Claimant.

Feb. 14, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-91-A-1302-N), W. Harold Albritton,

III, Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON,

Senior Circuit Judge.

TJOFLAT, Chief Judge.

I.

The defendant in this in rem proceeding is a parcel of real

property located on Hall Street in Montgomery, Alabama. It is

about 500 feet from the outdoor basketball courts of Houston Hills

Junior High School and one fifth of a mile from the front door of

the school itself. The entire property, which is valued at

approximately $65,000, is owned by George Jenkins. There is one

building on the property. In 1991, Jenkins ran a grocery store

from one portion of the building and rented out the other portion.

In August 1991, an agent of the local district attorney's drug

task force received a telephone call from a confidential informant

who notified him that drugs were being sold at the grocery store.

The task force then conducted two "controlled buys" using the
informant. After each controlled buy, the informant produced a

clear one-inch square bag, which contained a white, powder-like

substance, and stated that the individual who had sold him the bag

had pulled it from his pants pocket. Each time, the agents

field-tested the substance, identified it as one half of a gram of

cocaine, and destroyed it.

On the strength of the information acquired during the two

controlled buys, agents secured a warrant that authorized a search

of the grocery store and any vehicle on the premises. The search

was conducted on August 30. When they entered the store, the

agents found George Jenkins standing behind a counter and cash

register. In his front right pants pocket, the agents found

forty-five dollars and seven plastic one-inch square bags

containing a white, powder-like substance. They also found $800 in

his wallet, as well as $108 and some .38 caliber bullets on a shelf

behind the counter. In a Chevrolet Blazer owned by Jenkins and

parked on the premises, the agents found three hand-rolled

cigarettes and a .38 caliber pistol. Subsequent laboratory tests

indicated that the bags taken from Jenkins's pocket contained a

total of three grams of cocaine and that the cigarettes contained

six tenths of a gram of marijuana.

In September 1992, Jenkins pled guilty in state court to the

unlawful possession of cocaine, a felony under Alabama law, which

carries a maximum sentence of ten years in prison and a maximum

fine of $5000. A charge of unlawful possession of marijuana was

dropped as part of the plea agreement.

In October 1991, the United States filed this civil action in
 1

The statute refers to a "violation of this title" and the

code to a "violation of this subchapter," both of which are

references to title II of the Comprehensive Drug Abuse Prevention

and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236. Title

II of that Act is the Controlled Substances Act. See Controlled

Substances Act § 100, 84 Stat. at 1444, 21 U.S.C. § 801 note

(1994). 

 2See U.S. Const. amend. VIII ("Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted."). 

rem for forfeiture of the entire parcel of real property, pursuant

to section 511(a)(7) of the Controlled Substances Act, Pub.L. No.

91-513, Title II, 84 Stat. 1236, 1276 (1970), 21 U.S.C. 881(a)(7)

(1994), which authorizes the forfeiture of real property "which is

used, or intended to be used, in any manner or part, to commit, or

to facilitate the commission of a violation of [the Controlled

Substances Act] punishable by more than one year's

imprisonment...."1 In December 1991, Jenkins filed an answer in

the forfeiture proceeding, as claimant to the property. After a

bench trial, the district court ordered the property forfeited to

the government. See United States v. One Parcel of Property

Located at 427 & 429 Hall St., 842 F.Supp. 1421 (M.D.Ala.1994).

The court subsequently denied Jenkins's motion for a new trial.

See United States v. One Parcel of Property Located at 427 & 429

Hall St., 853 F.Supp. 1389 (M.D.Ala.1994).

Jenkins appeals, contending that: (1) the underlying offense

was not "punishable by more than one year's imprisonment," as

required by statute, and (2) the forfeiture constitutes an

"excessive fine" in violation of the Eighth Amendment.2

II.

 Generally speaking, civil forfeiture is the forfeiture of
 3

When used as an adjective, "quit" means "released from

obligation, charge, or penalty." Webster's Third New

International Dictionary 1867 (1993). Thus, the ox responsible

for the goring was forfeit, and its owner subject to no (other)

penalty. 

 4See also 1 Bouvier's Law Dictionary 844 (8th ed. 1914)

(deodand was personal chattel "forfeited to the king to be

distributed in alms by the high almoner "for the appeasing,' says

Coke, "of God's wrath.' "). The word comes from the Latin deo

dandum, "a thing that must be offered to God." Id. 

real or personal property to the state after that property is shown

to be linked to a violation of the state's laws. As such, it has

a long and varied history. The specific provision before the court

today retains some of the characteristics of its antecedents—and

those similarities will dispose of Jenkins's first argument. In

one significant way, however, the provision departs radically from

its precedents. The nature of this departure leads us to disagree

with our sister circuit courts about the appropriate analysis of

civil forfeiture under the Excessive Fines Clause, and it guides

our disposition of Jenkins's second claim.

A.

Some trace the roots of civil forfeiture to the Old Testament.

See Exodus 21:28 (King James) ("If an ox gore a man or a woman,

that they die: then the ox shall be surely stoned, and his flesh

shall not be eaten; but the owner of the ox shall be quit.")3

Blackstone, for example, noted the scriptural origin of one

particular species of common law forfeiture—the deodand, according

to which chattel was forfeit if it caused the death of a subject.

See 1 William Blackstone, Commentaries *301.4 In addition to the

deodand, however, English common law recognized several other forms

of forfeiture. See, e.g., 2 William Blackstone, Commentaries *267-
287 (eight ways in which real property could be forfeit, including

crime of the owner and bankruptcy). At the time our Bill of Rights

was ratified, the English common law recognized three kinds of

forfeiture: deodand, forfeiture upon conviction for a felony or

treason, and "statutory forfeiture," pursuant to which an object

would be forfeited if it were used in violation of the customs and

revenue laws, which included, for example, the Navigation Acts of

1660. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,

680-83, 94 S.Ct. 2080, 2090-91, 40 L.Ed.2d 452 (1974); Austin v.

United States, --- U.S. ----, ----, 113 S.Ct. 2801, 2897, 125

L.Ed.2d 488 (1993).

Of these three, only statutory forfeiture became part of the

American legal tradition. Austin, --- U.S. at ----, 113 S.Ct. at

2807. Indeed, during the colonial period, while adoption and use

of forfeiture varied from colony to colony, every colony enacted

some form of statutory forfeiture. Matthew Q. Giffuni, Civil

Forfeiture and the Excessive Fines Clause Following Austin v.

United States, 31 Crim.L.Bull. 502, 506 (1995). So, eventually,

did the new federal government. In 1789, the First Congress

authorized forfeiture of ships (and their cargoes) that were

involved in customs offenses. Act of July 31, 1789, § 12, 1 Stat.

39; see also Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 1 Stat. 157,

161, 163; Austin, --- U.S. at ----, 113 S.Ct. at 2707. In the

years since, Congress has authorized forfeiture to aid enforcement

of many statutory schemes, including the navigation laws, food and

drug laws, copyright laws, and antitrust laws.

In 1970, Congress enacted the Controlled Substances Act as
part of the Comprehensive Drug Abuse Prevention and Control Act and

in it authorized civil forfeiture. See Controlled Substances Act

§ 511, 84 Stat. at 1276, 21 U.S.C. § 881. In 1984, Congress added

the provision under which the Government proceeded in this case.

See Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, Title

II, Chap. III, § 306, 98 Stat. 2040, 2050 (amending Controlled

Substances Act § 511(a), 21 U.S.C. § 881(a)). As noted, that

section authorizes the forfeiture of real property used, or

intended to be used, to commit, or to facilitate the commission of,

a violation of the Controlled Substances Act punishable by more

than one year of imprisonment.

 Forfeiture pursuant to 21 U.S.C. § 881(a)(7) retains many

characteristics of its ancestors. Notably, "[a] civil forfeiture

action is not an action in personam against the claimant of the

property; rather, it is an action in rem against the property

itself." United States v. Four Parcels of Real Property, 941 F.2d

1428, 1435 (11th Cir.1991) (en banc). The property, and not its

owner, is "guilty." This is traditional in rem forfeiture. Among

its implications: the acquittal, or even non-prosecution, of the

owner on criminal charges is irrelevant as to the forfeitability of

the property. See The Palmyra, 25 U.S. (12 Wheat.) 1, 15, 6 L.Ed.

531 (1827) ("[T]he proceeding in rem stands independent of, and

wholly unaffected by any criminal proceeding in person."); The

Brig Malek Adhel, 43 U.S. (2 How.) 210, 233, 11 L.Ed. 239 (1844)

("The vessel which commits the aggression is treated as the

offender, as the guilty instrument or thing to which the forfeiture

attaches, without any reference whatsoever to the character or
 5

See infra part II.B. 

 6Jenkins argues that the field testing (rather than

laboratory testing) and subsequent destruction of the cocaine

purchased during the controlled buys mean the government has no

conduct of the owner."). A related implication: the government

bears a lower burden of proof. To justify a forfeiture under

section 881(a)(7), the government must merely establish that it had

"probable cause" to believe that a crime punishable by a year or

more has occurred. United States v. Four Parcels of Real Property,

941 F.2d at 1438.

 At this juncture, Jenkins's first argument can be disposed of

briefly. The Government proceeded in rem against property linked

to a violation of the Controlled Substances Act. Jenkins claims

that forfeiture is improper because the "underlying offense" in

question is possession of three grams of cocaine (i.e., the cocaine

found on his person on August 30), which is a misdemeanor

punishable by "a term of imprisonment of not more than 1 year."

Controlled Substances Act § 404(a), 84 Stat. at 1264, 21 U.S.C. §

844(a) (1994). To be sure, the forfeiture provision requires that

the underlying drug offense be one punishable by more than one

year's imprisonment. But Jenkins has misidentified the underlying

offense. The government premised the forfeiture on possession with

the intent to distribute, aggravated in this instance by the

property's proximity to a junior high school. The minimum

imprisonment for this felony is fifteen months in prison. 5 That

Jenkins was only convicted of simple possession, and that the

government might not have been able to satisfy the high burden of

criminal prosecution with respect to intent to distribute,6 are
evidence admissible in a criminal trial pertaining to intent to

distribute. We make no comment on the merits of this argument. 

We simply note that the dispositive question is whether the

government had "probable cause" to believe the crime occurred,

not whether it could prove Jenkins's guilt beyond a reasonable

doubt in a criminal trial. 

simply irrelevant. In this respect, the theory of civil forfeiture

has changed very little.

B.

Civil forfeiture under the Controlled Substances Act, however,

diverges from its roots in a very fundamental way. Specifically,

Congress has provided an "innocent owner" defense: "[N]o property

shall be forfeited under this paragraph, to the extent of an

interest of an owner, by reason of any act or omission established

by that owner to have been committed or omitted without the

knowledge or consent of that owner." 21 U.S.C. § 881(a)(7). There

was no innocent-owner defense at common law, although there was

some discretion to mitigate based on the moral innocence of the

party incurring the penalty. See Calero-Toledo, 416 U.S. at 683 n.

27, 94 S.Ct. at 2091 n. 27. The innocent-owner defense included in

section 881(a)(7) strongly suggests that Congress intended to

punish persons intentionally involved in drug trafficking. See

Austin, --- U.S. at ---- - ----, 113 S.Ct. at 2810-11 ("These

exemptions serve to focus the provisions on the culpability of the

owner in a way that makes them look more like punishment, not

less."). The legislative history of the section confirms the

punitive nature of the provisions. Id. at ---- - ----, 113 S.Ct.

at 2811, citing S.Rep. No. 98-225, 98th Cong., 2d Sess. 191 (1983).

This brings us to Jenkins's second argument, that the forfeiture of
his real property constitutes an "excessive fine" in violation of

the Eighth Amendment.

 It has been established that the Excessive Fines Clause of

the Eighth Amendment applies to in rem civil forfeiture proceedings

under 21 U.S.C. § 881(a)(7). See Austin, --- U.S. at ----, 113

S.Ct. at 2812. The Austin Court declined, however, to articulate

a test for determining whether a particular forfeiture violates the

Excessive Fines Clause. See id. ("Prudence dictates that we allow

the lower courts to consider that question in the first instance.")

In his concurring opinion, Justice Scalia contended that the

appropriate test is an "instrumentality" test that focuses on "the

relationship of the property to the offense" or, in other words, a

test that asks, "Was [this relationship] close enough to render the

property, under traditional standards, "guilty' and hence

forfeitable?" Id. at ----, 113 S.Ct. at 2815 (Scalia, J.,

concurring in part and concurring in the judgment). The majority

simply responded that it would "not rule out the possibility that

the connection between the property and the offense may be relevant

... in determining whether [a] forfeiture ... [is] excessive." Id.

at ---- n. 15, 113 S.Ct. at 2812 n. 15.

 The tests laid out by lower courts since Austin generally

fall into two categories. Some have followed Justice Scalia's

suggestion and applied an instrumentality test, focusing on the use

of the property in the commission of the illegal act, asserting

that this test is the only way to preserve the "guilty property

fiction" of traditional in rem forfeiture. See, e.g., United

States v. Chandler, 36 F.3d 358 (4th Cir.1994), cert. denied, ---
 7

Proportionality review under the Cruel and Unusual

Punishments Clause was laid out by a five-justice majority of the

Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77

L.Ed.2d 637 (1983). Many contend that eight years later, in

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d

836 (1991), the Court "retreated" from its earlier holding. We

make no comment, of course, on the dispute; the Cruel and

Unusual Punishments Clause is not before us. 

 8The Excessive Fines Clause has received little attention

from the Supreme Court. The first decision interpreting the

U.S. ----, 115 S.Ct. 1792, 131 L.Ed.2d 721 (1995). A few have

applied a proportionality test, the core of which is a comparison

of the severity of the forfeiture with the seriousness of the

crime. See, e.g., United States v. One Parcel of Real Property

Located at 461 Shelby County Rd. 361, 857 F.Supp. 935

(N.D.Ala.1994). Many, including the district court in this case,

have combined the two approaches in some fashion. See, e.g.,

United States v. Premises Known as Rural Route No. 1 Box 224, 14

F.3d 864 (3d Cir.1994); United States v. Real Property Located in

El Dorado County at 6380 Little Canyon Road, 59 F.3d 974 (9th

Cir.1995). See generally Sarah N. Welling & Medrith Lee Hager,

Defining Excessiveness: Applying the Eighth Amendment to Civil

Forfeiture After Austin v. United States, 83 Ky.L.J. 835 (1994-

1995).

Courts and commentators rejecting a proportionality test have

relied heavily on what they perceive to be a retreat from

proportionality review in Cruel and Unusual Punishments Clause

jurisprudence.7

 See, e.g., United States v. Chandler, 36 F.3d at

365. Reliance on the Cruel and Unusual Punishments Clause cases

for an interpretation of the Excessive Fines Clause is, however,

inappropriate.8

 The clauses are distinct. Alexander v. United
provision was handed down in 1989. See Browning-Ferris Indus. v.

Kelco Disposal Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d

219 (1989). The Framers, too, paid much less attention to it

than they did to other clauses. 

 9The instrumentality test adopted in part by the district

court is required by the statute itself, but not by the Eighth

Amendment. Section 881(a)(7) authorizes forfeiture of real

property "which is used, or intended to be used, in any manner or

States, --- U.S. ----, ----, 113 S.Ct. 2766, 2775, 125 L.Ed.2d 441

(1993). We conclude that the appropriate inquiry with respect to

the Excessive Fines Clause is, and is only, a proportionality test.

We rely on: (1) the reasoning used by the Austin Court in its

conclusion that the clause applies; (2) the plain meaning of the

clause; and (3) the history of the clause.

 First, the Austin Court reasoned that the Excessive Fines

Clause applies because forfeiture under section 881(a)(7)

"constitutes "payment to a sovereign as punishment for some

offense.' " --- U.S. at ----, 113 S.Ct. at 2812, quoting BrowningFerris Indus. v. Kelco Disposal Inc., 492 U.S. 257, 265, 109 S.Ct.

2909, 2915, 106 L.Ed.2d 219 (1989). Specifically, forfeiture is

tied to "the commission of drug offenses." Id. at ----, 113 S.Ct.

at 2811. And the inclusion of an innocent-owner defense reveals

Congress's intent "to punish only those [i.e., those owners ]

involved in drug trafficking." Id. In other words, section

881(a)(7) is designed to, and does, punish individuals involved in

drug trafficking. It is primarily for this reason that the

instrumentality test is inappropriate. When the Eighth Amendment's

Excessive Fines Clause, which constrains the power of the sovereign

to punish, comes in to play, it necessarily protects the person

punished, i.e. the owner.9
part" to facilitate a violation of the Controlled Substances Act. 

21 U.S.C. § 881(a)(7). The government must present evidence

furnishing a reasonable ground for belief that a substantial

connection exists between the property to be forfeited and the

illegal activity. See United States v. $121,100.00 in U.S.

Currency, 999 F.2d 1503, 1505 (11th Cir.1993) (§ 881(a)(6)); 

United States v. Approximately 50 Acres of Real Property Located

at 42450 Highway 441 N. Fort Drum, 920 F.2d 900, 902 (11th

Cir.1991) (§ 881(a)(6)). See also United States v. Parcel of

Land and Residence at 28 Emery St., 914 F.2d 1, 3-4 (1st

Cir.1990) (§ 881(a)(7); United States v. One Parcel of Real

Estate Located at 7715 Betsy Bruce Lane, 906 F.2d 110, 112-13

(4th Cir.1990) (§ 881(a)(7)); United States v. Premises Known as

3639-2nd St., N.E., 869 F.2d 1093, 1096-97 (8th Cir.1989) (§

881(a)(7)). 

Second, the Excessive Fines Clause on its face prohibits fines

which are "excessive"—i.e. fines that are (in amount) just too

much. And because the clause protects the individual punished,

this turn of phrase necessarily implies a comparison of the amount

of the fine with the acts of the individual. This is simply a

logical reading of the provision in question: excessive fines are

not to be imposed. See Harmelin v. Michigan, 501 U.S. 957, 967,

111 S.Ct. 2680, 2687, 115 L.Ed.2d 836 (1991) (Scalia, J. and

Rehnquist, C.J.) (rejecting a proportionality review under the

Cruel and Unusual Punishments clause in part because "the drafters

of the [English] Declaration of Rights did not explicitly prohibit

"disproportionate' or "excessive' punishments"); see also id. at

1009, 111 S.Ct. at 2709 (White, Blackmun, and Stevens, JJ.,

dissenting) ("The language of the Amendment does not refer to

proportionality in so many words, but it does forbid "excessive'

fines, a restraint that suggests that a determination of

excessiveness should be based at least in part on whether the fine

imposed is disproportionate to the crime committed.").

Finally, the historical antecedents of our Excessive Fines
 10Amercements were an "all-purpose monetary sanction used to

penalize both criminal and civil wrongdoing." Even before Magna

Charta, a writ de moderata misericordia would lie if the penalty

"was disproportionately large in relation to the offense." 

Calvin R. Massey, The Excessive Fines Clause and Punitive

Damages: Some Lessons From History, 40 Vand.L.Rev. 1233, 1259

(1987). 

 11One justification for the Magna Charta's failure to

address the proportionality of fines may have been the "well

established common-law tradition invalidating excessive fines." 

Massey, supra, at 1254 n. 124. What we today call a "fine," of

course, is not the same as what a seventeenth century Englishman

called a "fine" or what he called an "amercement." Each,

however, involved payment to a sovereign and each was linked to

the commission of a wrong. 

Clause themselves required proportionality review. Magna Charta,

for instance, contained several provisions regulating the amount of

amercements, fines which were imposed at the discretion of the

court for illegal conduct.10 See Magna Charta § 20 ("A freeman

shall not be amerced for a small fault but after the manner of the

fault; and for a great crime according to the heinousness of

it....") (emphasis added); Harmelin, 501 U.S. at 968-69, 111 S.Ct.

at 2687-88 (Scalia, J., and Rehnquist, C.J.); Massey, supra note

10, at 1251. By the time of the Glorious Revolution, it was clear

that Magna Charta afforded no protection from extravagant "fines,"

which were typically criminal penalties,11 but which were also

levied ruthlessly on enemies of James II and Charles II. Massey,

supra, at 1253, 1263. Accordingly, those who drafted the 1689

English Declaration of Rights (and its statutory counterpart, the

Bill of Rights), included an excessive-fines clause: "excessive

Baile ought not to be required nor excessive Fines imposed nor

cruell and unusuall Punishments inflicted." 1 Wm. & Mary, 2d

Sess., ch. 2, 3 Stat. at Large 440, 441 (1689), cited in Solem v.
 12See Massey, supra, at 1264 ("It was this unwelcome flexing

of royal authority that undoubtedly was the immediate political

target of the Declaration of Rights."). 

Helm, 463 U.S. 277, 285, 103 S.Ct. 3001, 3007, 77 L.Ed.2d 637

(1983); see also 4 Blackstone *378-379.12 The provision

"explicitly addressed the issue of fines, while it implicitly

reaffirmed ancient rights with respect to amercements." Massey,

supra, at 1255. William of Orange's acceptance of the English

throne in 1689 was directly linked to his acceptance of the

Declaration of Rights. Id. at 1249-50. And in an often recounted

case, three months after the Bill of Rights was adopted the House

of Lords reviewed the imposition of a thirty thousand pound fine on

the Earl of Devon for an "assault and battery upon Colonel

Culpepper." See Weems v. United States, 217 U.S. 349, 376, 30

S.Ct. 544, 552, 54 L.Ed. 793 (1910); Solem, 463 U.S. at 285, 103

S.Ct. at 3007 (1983). The House of Lords declared the fine

"excessive and exorbitant, against Magna Charta, the common right

of the subject, and the law of the land." Earl of Devon's Case, 11

State Trials 1354, 1372 (1689).

 In sum, the principle that "fines" are not to be "excessive"

(i.e. "out of proportion") was well rooted in English law when our

country came of age. And of course, the Eighth Amendment "was

based directly on Art. I, § 9, of the Virginia Declaration of

Rights (1776), authored by George Mason. He, in turn, had adopted

verbatim the language of the English Bill of Rights." Solem, 463

U.S. at 286 n. 10, 103 S.Ct. at 3007 n. 10 (both emphases added).

These observations lead to the conclusion that application of

the Excessive Fines Clause to civil forfeiture under 21 U.S.C. §
 13See also United States v. One Single Family Residence

Located at 18755 N. Bay Rd., 13 F.3d 1493, 1498 (1994) (finding

in rem forfeiture pursuant to 18 U.S.C. § 1955 to be the

"imposition of a disproportionate penalty" in violation of the

Excessive Fines Clause). 

881(a)(7) requires a review of the proportionality of the fine

imposed.13 That is, a court must ask: Given the offense for which

the owner is being punished, is the fine (imposed by civil

forfeiture) excessive? While the core of proportionality review is

a comparison of the severity of the fine with the seriousness of

the underlying offense, it would be futile to attempt a definitive

checklist of relevant factors. The relevant factors will

necessarily vary from case to case. See United States v. Monroe,

866 F.2d 1357, 1366 (11th Cir.1989) (" "The [E]ighth [A]mendment

prohibits only those forfeitures that, in light of all relevant

circumstances, are grossly disproportionate to the offense

committed.' ") (quoting United States v. Busher, 817 F.2d 1409,

1415 (9th Cir.1987)).

 We turn to the present case. On the one hand, the real

property in question is worth approximately $65,000. Moreover,

Jenkins has never been convicted of a violation of the Controlled

Substances Act, and it is undisputed that the legitimate businesses

that he ran off the property (i.e. his own store and renting out

the other portion of the building) were his primary source of

livelihood. On the other hand, Jenkins's property was forfeited on

the strength of possession with the intent to distribute three

grams of cocaine within five hundred feet of a junior high school.

In 1991, under the United States Sentencing Commission Guidelines,

this was a Level 14 offense, punishable by fifteen to twenty-one
months in prison. See United States Sentencing Commission,

Guidelines Manual at §§ 2D1.1, 2D1.2, 5A (1990). A Level 14

offense also results in a mandatory fine ranging from $4000 to

$40,000. See id. at § 5E1.2. Furthermore, putting aside the

sentencing guidelines, the totality of the circumstances

underscores the seriousness of the offense. Jenkins was found with

marijuana, large amounts of cash, bullets, and a .38 caliber gun,

and he was quite close to a junior high school. Given a possible

sentence of twenty-one months in prison and a $40,000 fine, and

given the additional factors at work in this case, we conclude that

forfeiture of a $65,000 piece of property does not violate the

Excessive Fines Clause.

III.

The district court applied a two-step test to measure the

excessiveness of the fine, a test which emphasized instrumentality

analysis, but which included proportionality review. While we

affirm the judgment of the district court (ordering the property

forfeited to the government), we do so solely on the strength of

proportionality review, which is all that the Excessive Fines

Clause requires. The judgment of the district court is

AFFIRMED.