14

‐ 4176

‐ cr

United States v. Viloski



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2015

No. 14

‐ 4176

‐ cr

U NITED S TATES OF A MERICA

,

Appellee

,

v.

B ENJAMIN V ILOSKI

,

Defendant

‐ Appellant

. 

On Appeal from the United States District Court

for the Northern District of New York

A RGUED : O CTOBER 22, 2015

D ECIDED : F EBRUARY 17, 2016

 The Clerk of Court is directed to amend the caption of this appeal as

indicated above.2 Before: K EARSE

, W ALKER

, AND C ABRANES

, Circuit Judges

.

The question presented is whether the criminal forfeiture

imposed on defendant

‐ appellant Benjamin Viloski (“Viloski”)

violates the Excessive Fines Clause of the Eighth Amendment.

Viloski argues that the United States District Court for the Northern

District of New York (David N. Hurd, Judge ) erred when it declined

to consider Viloski’s age, health, and financial condition in

determining whether its previously issued forfeiture order of

$1,273,285.50 was unconstitutionally excessive. Viloski also argues

that even if the District Court properly ignored his personal

circumstances, the forfeiture is nonetheless unconstitutional in light

of the four factors described in United States v. Bajakajian

, 524 U.S. 321

(1998).

We hold that a court reviewing a criminal forfeiture under the

Excessive Fines Clause may consider—as part of the proportionality

determination required by Bajakajian —whether the forfeiture would

deprive the defendant of his future ability to earn a living. We further

hold, however, that courts should not consider a defendant’s

personal circumstances as a distinct factor. Applying these

conclusions to the present case, we conclude that the challenged

forfeiture is constitutional because it is not “grossly disproportional”

to the gravity of Viloski’s offenses. We therefore AFFIRM the

October 16, 2014 Order of the District Court.3 P ETER G OLDBERGER (Pamela A. Wilk, on the

brief ), Ardmore, PA, for Defendant

‐ Appellant

.

G WENDOLYN E. C ARROLL (Steven D. Clymer,

on the brief ), Assistant United States

Attorneys, for Richard S. Hartunian, United

States Attorney for the Northern District of

New York, Syracuse, NY, for Appellee

.

J OSÉ A. C ABRANES

, Circuit Judge :

The question presented is whether the criminal forfeiture

imposed on defendant

‐ appellant Benjamin Viloski (“Viloski”)

violates the Excessive Fines Clause of the Eighth Amendment.

Viloski argues that the United States District Court for the Northern

District of New York (David N. Hurd, Judge ) erred when it declined

to consider Viloski’s age, health, and financial condition in

determining whether its previously issued forfeiture order of

$1,273,285.50 was unconstitutionally excessive. Viloski also argues

that even if the District Court properly ignored his personal

circumstances, the forfeiture is nonetheless unconstitutional in light

of the four factors described in United States v. Bajakajian

, 524 U.S. 321

(1998).

We hold that a court reviewing a criminal forfeiture under the

Excessive Fines Clause may consider—as part of the proportionality4 determination required by Bajakajian —whether the forfeiture would

deprive the defendant of his future ability to earn a living. We further

hold, however, that courts should not consider a defendant’s

personal circumstances as a distinct factor. Applying these

conclusions to the present case, we determine that the challenged

forfeiture is constitutional because it is not “grossly disproportional”

to the gravity of Viloski’s offenses. We therefore AFFIRM the

October 16, 2014 Order of the District Court.

I. BACKGROUND

Viloski was a lawyer and real

‐ estate broker who worked with

Dick’s Sporting Goods (“DSG”) on a number of development

projects. 1 From 1998 through 2005, he participated in a kickback

scheme involving the construction of new DSG stores, in which

developers or landlords paid “consulting” fees—sometimes in

exchange for work never performed—to Viloski in his capacity as

DSG’s broker. Viloski passed all or part of each payment to

codefendant Joseph Queri, Jr. (“Queri”), a senior DSG executive, who

took the payments without DSG’s knowledge. Viloski sometimes

paid Queri through a real

‐ estate company owned by codefendant

Gary Gosson (“Gosson”).

1 Because Viloski’s appeal follows his conviction by a jury, we must view

the evidence “in the light most favorable to the Government.” Evans v. United

States

, 504 U.S. 255, 257 (1992); accord United States v. Weingarten

, 632 F.3d 60, 62

(2d Cir. 2011).5 In 2009, Viloski was charged in a twenty

‐ count indictment

related to these activities. After a three

‐ week trial, a jury convicted

him of one count of conspiracy to commit mail and wire fraud, two

substantive counts of mail fraud, one count of conspiracy to commit

money laundering, three counts of aiding and abetting money

laundering, one count of aiding and abetting transactions in

criminally derived property, and one count of making false

statements. He was acquitted on the remaining counts.

On January 13, 2012, the District Court sentenced Viloski

principally to a below

‐ Guidelines term of five years’ imprisonment

and a three

‐ year term of supervised release. The Court also ordered

Viloski to pay a total of $75,000 in restitution to two developers

and—most relevant here—to forfeit $1,273,285.50, which equaled the

amount of funds Viloski had acquired from landlords and

developers, laundered through two entities he controlled, and passed

on to Queri. 2 The District Court ordered forfeiture pursuant to 18

U.S.C. § 982(a)(1), the criminal forfeiture statute; 18 U.S.C.

§ 981(a)(1)(C), the civil forfeiture statute; and 28 U.S.C. § 2461(c),

which “integrate[s § 981(a)(1)(c)] into criminal proceedings,” United

States v. Contorinis

, 692 F.3d 136, 145 n.2 (2d Cir. 2012).

Viloski appealed to this Court, which affirmed his conviction

and sentence but remanded the case to the District Court to

2 Viloski is jointly and severally liable with Queri for the forfeiture related

to two counts, and jointly and severally liable with Gosson for the forfeiture

related to a third count.6 determine whether its forfeiture order violated the Excessive Fines

Clause, U.S. Const. amend. VIII. 3 United States v. Viloski

, 557 F. App’x

28, 36 (2d Cir. 2014) (“ Viloski I ”). We specifically directed the District

Court to evaluate the forfeiture in light of Bajakajian

, 524 U.S. at 321.

On remand, the District Court interpreted Bajakajian as

requiring courts to consider the following four factors, known as the

“ Bajakajian factors,” in determining whether a challenged forfeiture

violates the Excessive Fines Clause:

(1) the essence of the crime and its relation to other

criminal activity; (2) whether the defendant fits into the

class of persons for whom the statute was principally

designed; (3) the maximum sentence and fine that could

have been imposed; and (4) the nature of the harm

caused by the defendant’s conduct.

United States v. Viloski

, 53 F. Supp. 3d 526, 530 (N.D.N.Y. 2014).

Viloski agreed that these factors were relevant but argued that

the Court should also consider his age, “poor health,” 4 “physical and

civic disabilities,” and inability to pay the forfeiture. Id. at 532.

3 The Eighth Amendment of the U.S. Constitution provides that “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.”

4 The District Court noted that Viloski “is in poor health and suffers from

several physical ailments,” including complications from double bypass surgery

in September 2009 and a cancer diagnosis in 2004. Viloski

, 53 F. Supp. 3d at 532.7 Viloski also emphasized “his lack of culpability and lack of profit

from the scheme compared to co

‐ defendant Queri.” Id. Although the

District Court expressed sympathy for some of these considerations,

it declared them irrelevant, because “[t]he Supreme Court [had]

limited the inquiry to the four Bajakajian factors.” Id. Accordingly,

after considering only those factors, the District Court concluded that

the forfeiture did not violate the Eighth Amendment. Id. This appeal

followed.

II. DISCUSSION

The Supreme Court first applied the Excessive Fines Clause in

United States v. Bajakajian

, 524 U.S. 321 (1998), which established a

two

‐ step inquiry for determining whether a financial penalty is

excessive under the Eighth Amendment. 5 At the first stage, we

determine whether the Excessive Fines Clause applies at all. Id. at

334. If we conclude that it does, we proceed to the second step and

determine whether the challenged forfeiture is unconstitutionally

excessive. Id. In applying Bajakajian

, we determine de novo “whether a

fine is constitutionally excessive,” although we must accept the

District Court’s factual findings “unless clearly erroneous.” Id. at 336

5 The Supreme Court had previously discussed the Excessive Fines Clause

in Browning

‐ Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.

, 492 U.S. 257

(1989), which held that the clause does not apply to awards of punitive damages

in suits between private parties, and Austin v. United States

, 509 U.S. 602 (1993),

which held that the clause applies to in rem civil

‐ forfeiture proceedings. Bajakajian

was the first time the Court invalidated a fine as excessive under the Eighth

Amendment.8 & n.10. “The burden rests on the defendant to show the

unconstitutionality of the forfeiture.” United States v. Castello

, 611 F.3d

116, 120 (2d Cir. 2010). 6

A. Step One: Does the Excessive Fines Clause Apply?

1. Legal Framework

First, we must determine whether the forfeiture at issue

constitutes “a ‘fine’ within the meaning of the Excessive Fines

Clause.” Bajakajian

, 524 U.S

. at 334. That clause applies only to those

forfeitures that may be characterized, at least in part, as “punitive”—

i.e.

, forfeitures for which a defendant is personally liable. Id. at 327–

28; see also United States v. An Antique Platter of Gold

, 184 F.3d 131, 139

(2d Cir. 1999) (describing as “punitive” those forfeitures “imposed at

the culmination of a criminal proceeding that required a conviction

of the underlying felony and could not have been imposed upon an

innocent party”). In contrast, purely “remedial” forfeitures— i.e.

,

those in rem forfeitures intended not to punish the defendant but to

compensate the Government for a loss or to restore property to its

6 The Government urges us to apply “plain error” review to Viloski’s

argument about the sufficiency of the Bajakajian factors, because he did not

present it below. Gov’t Br. 16–21. The requirement that litigants raise all possible

arguments before the district court serves principally to “give[ ] the district court

the opportunity to consider and resolve” questions in the first instance. See Puckett

v. United States

, 556 U.S. 129, 134 (2009). Here, the District Court not only

considered the sufficiency of the Bajakajian factors but found that Viloski made

“compelling arguments” on that topic. 53 F. Supp. 3d at 532. We accordingly

consider the question de novo

. See Bajakajian

, 524 U.S. at 336 & n.10.9 rightful owner—fall outside the scope of the Excessive Fines Clause.

Bajakajian

, 524 U.S. at 329; see also Paroline v. United States

, 134 S. Ct.

1710, 1726 (2014) (“The primary goal of restitution is remedial or

compensatory, but it also serves punitive purposes. That may be

sufficient to bring it within the purview of the Excessive Fines

Clause.” (internal quotation marks, citations, and alteration

omitted)).

2. Application

As we concluded in Viloski I

, the Excessive Fines Clause applies

here. See 557 F. App’x at 36. The challenged forfeiture—which the

District Court expressly linked to specific offenses—fits easily within

the definition of punitive forfeitures we just expounded: it was

“imposed at the culmination of a criminal proceeding that required a

conviction of the underlying felony,” and it “could not have been

imposed upon an innocent party.” Cf. Platter of Gold

, 184 F.3d at 139. 7

7 The Government argues that the challenged forfeiture is necessarily

constitutional because it “involves only the proceeds of criminal conduct.” Gov’t

Br. 32. Revealingly, its brief cites only out

‐ of

‐ circuit cases, half of which predate

Bajakajian

. One of the two post

‐ Bajakajian cases the Government cites, United States

v. Betancourt

, 422 F.3d 240, 250 & n.5 (5th Cir. 2005), distinguished Bajakajian based

on a “drug proceeds” exception to the Excessive Fines Clause. Betancourt and

analogous cases, however, essentially characterized drug proceeds as “guilty

property,” forfeiture of which was in rem and purely remedial. See id. at 250 (“The

forfeiture of drug proceeds does not constitute punishment

. . . .” (alteration and

internal quotation marks omitted)); cf. United States v. Sum of $185,336.07 U.S.

Currency Seized from Citizen’s Bank Account L7N01967

, 731 F.3d 189, 194 (2d Cir.

2013) (“[T]he forfeiture of ‘guilty property,’ such as illicit drug proceeds, has been

traditionally regarded as non

‐ punitive

. . . .” (some internal quotation marks10 B. Step Two: Is the Forfeiture Unconstitutionally Excessive?

1. Legal Framework

If we determine that a forfeiture is punitive, we must proceed

to step two, which asks whether the forfeiture is unconstitutionally

excessive. A forfeiture is unconstitutionally excessive “if it is grossly

disproportional to the gravity of a defendant’s offense.” Bajakajian

,

524 U.S. at 334. Although Bajakajian did not provide a test for gross

disproportionality, we have interpreted that decision as requiring us

to consider the following four factors, which have become known as

the “ Bajakajian factors”:

(1) the essence of the crime of the defendant and its

relation to other criminal activity, (2) whether the

defendant fits into the class of persons for whom the

statute was principally designed, (3) the maximum

sentence and fine that could have been imposed, and (4)

the nature of the harm caused by the defendant’s

conduct.

United States v. George

, 779 F.3d 113, 122 (2d Cir. 2015) (quoting

Castello

, 611 F.3d at 120).

omitted)). Here, in contrast, the Government has moved not against the proceeds

themselves—which Viloski transferred to Queri in the very act of money

laundering—but against Viloski personally.11 The principal question in this appeal is whether these factors

are exhaustive—a question we have never addressed directly. Our

cases interpreting Bajakajian have neither added to the four factors

nor described them as comprehensive. See, e.g.

, George

, 779 F.3d at 122

(“Consistent with Bajakajian

, this court has identified the following

factors as relevant to the proportionality assessment

. . . .”); Castello

,

611 F.3d at 120 (“Four factors, distilled from Bajakajian

, guide our

analysis

. . . .”). In some cases, however, we have implicitly cautioned

against applying the Bajakajian factors too rigidly. See, e.g.

, United

States v. Collado

, 348 F.3d 323, 328 (2d Cir. 2003) (“ Among the factors

that the [Supreme] Court considered

. . . .” (emphasis supplied));

accord United States v. Varrone

, 554 F.3d 327, 331 (2d Cir. 2009); see also

United States v. Elfgeeh

, 515 F.3d 100, 139 (2d Cir. 2008) (determining

whether a forfeiture was excessive based on three of the factors when

the record was silent as to the fourth).

Our unwillingness in past cases to describe the Bajakajian

factors as exhaustive reflects Bajakajian itself, which never prescribed

those factors as a rigid test. 8 To the contrary, the Supreme Court

expressly noted that the defendant in that case had “not argue[d] that

8 The Supreme Court often declines to provide definitive tests when

interpreting constitutional provisions for the first time. See, e.g.

, District of

Columbia v. Heller

, 554 U.S. 570, 635 (2008) (“[S]ince this case represents this

Court’s first in

‐ depth examination of the Second Amendment, one should not

expect it to clarify the entire field

. . . .”); Austin

, 509 U.S. at 622–23 (declining to

adopt a test for whether an in rem forfeiture is unconstitutionally excessive,

because “[p]rudence dictates that we allow the lower courts to consider that

question in the first instance”).12 his wealth or income [were] relevant to the proportionality

determination or that full forfeiture would deprive him of his

livelihood.” Bajakajian

, 524 U.S. at 340 n.15. And several circuits have

recognized the potential relevance of additional factors. 9

Indeed, Bajakajian itself leads us to conclude that one

additional factor is especially important. The opinion emphasizes

that the Excessive Fines Clause grew out of the English constitutional

tradition, including Magna Carta, which required that a fine “should

not deprive a wrongdoer of his livelihood.” Bajakajian

, 524 U.S. at

335; see also Browning

‐ Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc.

, 492

U.S. 257, 269, 271 (1989) (noting Magna Carta’s requirement that an

“amercement”—a payment to the Crown as a penalty for some

offense—“not be so large as to deprive [an offender] of his

livelihood”). As the First Circuit has recognized, hostility to

livelihood

‐ destroying fines became “deeply rooted” in Anglo

‐

American constitutional thought and played an important role in

shaping the Eighth Amendment. United States v. Levesque

, 546 F.3d 78,

84 (1st Cir. 2008). In light of this strong constitutional pedigree, it

9 See, e.g.

, Collins v. S.E.C.

, 736 F.3d 521, 526–27 (D.C. Cir. 2013) (adopting

the four

‐ factor test we specified in Collado

, 348 F.3d at 328, but noting that “the

four factors derived from Bajakajian hardly establish a discrete analytic process”);

United States v. Dodge Caravan Grand SE/Sport Van, VIN # 1B4GP44G2YB7884560

,

387 F.3d 758, 763 (8th Cir. 2004); United States v. Carpenter

, 317 F.3d 618, 628 (6th

Cir. 2003) (“While these factors were clearly fact

‐ specific to the case before the

Court, they are instructive as to the type of analysis that must be undertaken in

assessing the gravity of the offense.”), reh’g granted, judgment vacated (Apr. 14,

2003), opinion reinstated in relevant part on reh’g, 360 F.3d 591 (6th Cir. 2004).13 seems unlikely that the Bajakajian Court meant to preclude courts

from considering whether a forfeiture would deprive an offender of

his livelihood.

We therefore hold that, when analyzing a forfeiture’s

proportionality under the Excessive Fines Clause, courts may

consider—in addition to the four factors we have previously derived

from Bajakajian —whether the forfeiture would deprive the defendant

of his livelihood, i.e.

, his “future ability to earn a living,” see Levesque

,

546 F.3d at 85. 10

In so holding, we heed the Supreme Court’s instruction that

“the test for the excessiveness of a punitive forfeiture involves solely a

proportionality determination.” Bajakajian

, 524 U.S. at 333–34

(emphasis supplied). 11 Whether a forfeiture would destroy a

10 As we note below, our test differs somewhat from the First Circuit’s. See

note 12 and accompanying text, post

.

11 We take this opportunity to note that there is a significant difference

between a district court’s role in determining the appropriate length of a sentence

and its role in ordering a criminal forfeiture. In general, a sentencing court is

empowered by statute to consider a wide range of factors when determining what

sentence to impose. See, e.g.

, 18 U.S.C. § 3553(a) (requiring a court to consider

factors such as “the nature and circumstances of the offense and the history and

characteristics of the defendant”); id. § 3661 (“No limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.”). In the case of

forfeiture, however, once a court determines that property sought by the

government was “involved in” or “traceable to” property involved in money

laundering, for example, the court “shall” order that such property be forfeited.

Id. § 982(a)(1). 28 U.S.C. § 2461(c) includes similar mandatory language. As long as14 defendant’s livelihood is a component of the proportionality analysis,

not a separate inquiry. 12 Accordingly, a forfeiture that deprives a

defendant of his livelihood might nonetheless be constitutional,

depending on his culpability or other circumstances. 13 Moreover,

courts need not consider this fifth factor in all cases. Indeed, neither

Bajakajian nor our previous cases have done so. We hold only that the

proportionality determination required by Bajakajian is sufficiently

flexible to permit such consideration.

We also emphasize that asking whether a forfeiture would

destroy a defendant’s future livelihood is different from considering

as a discrete factor a defendant’s present personal circumstances,

including age, health, and financial situation. While hostility to

livelihood

‐ destroying fines is deeply rooted in our constitutional

tradition, consideration of personal circumstances is not. See

the factual predicate for the application of these statutes has been satisfied,

therefore, a district court has no discretion not to order forfeiture in the amount

sought. The court’s only role is to conduct the gross disproportionality inquiry

required by Bajakajian. Cf. Bajakajian

, 524 U.S. at 339 n.11 (declining to address

“whether a court may disregard the terms of a statute that commands full

forfeiture”).

12 Here we part ways with the First Circuit. See Levesque

, 546 F.3d at 85

(adopting a three

‐ factor test and requiring a separate inquiry as to whether a

forfeiture would deprive a defendant of his livelihood).

13 If the Eighth Amendment permits the Government to end some

offenders’ lives, see, e.g.

, Gregg v. Georgia

, 428 U.S. 153 (1976), it surely permits the

Government to destroy other offenders’ livelihoods.15 Bajakajian

, 524 U.S. at 335–36 (noting that Magna Carta “required

only that amercements (the medieval predecessors of fines) should be

proportioned to the offense and that they should not deprive a

wrongdoer of his livelihood”); cf. San Antonio Indep. Sch. Dist. v.

Rodriguez

, 411 U.S. 1, 22 (1973) (noting in the equal protection context

that no “constitutional mandate” requires judges to consider “the

defendant’s ability to pay” a fine).

We are mindful of the Supreme Court’s admonition that

“judgments about the appropriate punishment for an offense belong

in the first instance to the legislature.” Bajakajian

, 524 U.S. at 336. Our

role in reviewing criminal forfeitures is solely to examine them for

gross disproportionality; in other respects, we must defer to

Congress. See id. ; Solem v. Helm

, 463 U.S. 277, 290 nn. 16 & 17 (1983).

Bearing that limited role in mind, we hold that courts may not

consider as a discrete factor a defendant’s personal circumstances,

such as age, health, or present financial condition, when considering

whether a criminal forfeiture would violate the Excessive Fines

Clause. 14 In so holding, we are in accord with every sister circuit that

has addressed the question directly. 15

14 We make no pronouncement as to civil forfeitures. See George

, 779 F.3d at

123 n.4 (noting the difference between civil and criminal forfeitures); von Hofe v.

United States

, 492 F.3d 175, 184–86 (2d Cir. 2007) (same).

15 Our approach aligns most closely with that of the First Circuit. See

United States v. Fogg

, 666 F.3d 13, 19 (1st Cir. 2011). The Eighth, Ninth, and

Eleventh Circuits have also held that the Eighth Amendment bars inquiry into a

defendant’s personal circumstances when a court reviews a criminal forfeiture,16 A contrary interpretation would conflict with one of

Congress’s basic premises in providing for criminal forfeitures: that

forfeitures should be “concerned not with how much an individual

has but with how much he received in connection with the

commission of the crime.” See United States v. Awad

, 598 F.3d 76, 78

(2d Cir. 2010) (internal quotation marks omitted). Such an

interpretation would be untenable in view of the Supreme Court’s

insistence that legislatures have the primary responsibility—subject,

of course, to constitutional constraints—for “determining the types

and limits of punishments for crimes.” Bajakajian

, 524 U.S. at 336

(internal quotation marks omitted). 16

It is possible, of course, “that a person’s health and financial

condition” might “bear on his ability to make a living.” See Def.

although those circuits have not distinguished such an inquiry from the question

of whether a forfeiture would destroy a defendant’s livelihood. See United States v.

Smith

, 656 F.3d 821, 828 (8th Cir. 2011) (“A defendant’s inability to satisfy a

forfeiture at the time of conviction, in and of itself, is not at all sufficient to render

a forfeiture unconstitutional, nor is it even the correct inquiry.” (quoting Levesque

,

546 F.3d at 85) (alteration omitted)); United States v. Seher

, 562 F.3d 1344, 1371

(11th Cir. 2009) (“We do not take into account the impact the fine would have on

an individual defendant.”); United States v. Dubose

, 146 F.3d 1141, 1146 (9th Cir.

1998) (“[A]n Eighth Amendment gross disproportionality analysis does not

require an inquiry into the hardship the sanction may work on the offender.”); see

also United States v. Dicter

, 198 F.3d 1284, 1292 n.11 (11th Cir. 1999) (declining to

consider the impact of a forfeiture on a defendant’s livelihood because “we do not

take into account the personal impact of a forfeiture on the specific defendant”).

16 In this context, we note that Congress has authorized the Attorney

General to remit forfeitures “on the grounds of hardship to the defendant.” See

Levesque

, 546 F.3d at 85.17 Reply Br. 6. Personal circumstances might thus be indirectly relevant

to a proportionality determination, to the extent that those

circumstances, in conjunction with the challenged forfeiture, would

deprive the defendant of his livelihood. Our holding bars only the

separate consideration of personal circumstances as a distinct factor.

2. Application

In light of the framework we have described, we now consider

whether Viloski’s forfeiture was unconstitutionally excessive. In

doing so, we are mindful of Bajakajian ’s admonition “that any judicial

determination regarding the gravity of a particular criminal offense

will be inherently imprecise.” 524 U.S. at 336. Therefore, although we

review the constitutionality of the challenged forfeiture de novo

, we

may invalidate it only if it “is grossly disproportional to the gravity of

the defendant’s offense.” Id. at 337 (emphasis supplied); see also

United States v. Blackman

, 746 F.3d 137, 144 (4th Cir. 2014) (“[T]he

Bajakajian test is highly deferential [to the legislature].”).

We begin with the four “traditional” Bajakajian factors. First

,

we consider “the essence of [Viloski’s] crime

. . . and its relation to

other criminal activity.” Castello

, 611 F.3d at 120 (internal quotation

marks omitted). The essence of Viloski’s crime “was no one

‐ time

failure to report otherwise legal activity as in Bajakajian ,” see George

,

779 F.3d at 123. Rather, Viloski engaged in a multi

‐ year conspiracy

involving repeated instances of money laundering, mail fraud, wire

fraud, and related offenses. Viloski

, 53 F. Supp. 3d at 530. Although

Viloski insists on his relative lack of culpability, his “willful18 participation” in that conspiracy, even if less egregious than that of

his codefendants, is sufficient to support the forfeiture. See United

States v. Sabhnani

, 599 F.3d 215, 263 (2d Cir. 2010) (noting that we

have upheld a civil forfeiture against a building owner who was

“willfully blind” to the fact that the building was used to facilitate

drug trafficking (internal quotation marks omitted)); see also United

States v. Jalaram, Inc.

, 599 F.3d 347, 356 (4th Cir. 2010) (“[T]hat [the

defendant] may have received only a small share of the proceeds, in

and of itself, does not demonstrate that it played a minor role in the

conspiracy. That fact establishes only that [the defendant’s]

participation in the conspiracy was not lucrative

. . . .”).

Second

, we consider “whether [Viloski] fits into the class of

persons for whom the statute[s] [under which he was punished were]

principally designed.” Castello

, 611 F.3d at 122 (alteration and internal

quotation marks omitted). Viloski fits squarely within the class of

persons for whom the federal mail

‐ and wire

‐ fraud and money

‐

laundering statutes were designed—namely, those who use facilities

of interstate or foreign commerce to engage in fraudulent schemes

and financial transactions and then seek to conceal or disguise the

nature of the proceeds of the fraud.

Third

, we consider “the maximum sentence and fine that could

have been imposed,” looking especially to the applicable Guidelines

penalties. Id. at 123 (internal quotation marks omitted); cf. Bajakajian

,

524 U.S. at 338–39 & n.14 (noting that the maximum statutory

penalties “are certainly relevant evidence” of “an offense’s gravity,”

but looking first to the Guidelines). Here, the Guidelines range for19 imprisonment was 108 to 135 months, and the maximum Guidelines

fine was $500,000. These figures suggest substantial culpability and

support the conclusion that the challenged forfeiture is constitutional.

We also note that the statutory maximum fine was $3,250,000—more

than two

‐ and

‐ a

‐ half times the $1,273,285.50 forfeiture—which

suggests that Congress did not view offenses like Viloski’s as trivial,

and thus also weighs strongly in favor of the forfeiture’s

constitutionality. See George

, 779 F.3d at 123–24 (finding that the third

Bajakajian factor “points to no disproportionality,” much less gross

disproportionality, even where the challenged forfeiture exceeded

the Guidelines fine, because the forfeiture was “well below” the

statutory maximum); Varrone

, 554 F.3d at 332 (“[I]f the value of

forfeited property is within the range of fines prescribed by

Congress, a strong presumption arises that the forfeiture is

constitutional.” (quoting United States v. 817 N.E. 29th Drive, Wilton

Manors, Fla.

, 175 F.3d 1304, 1309 (11th Cir. 1999))).

Fourth

, we consider “the nature of the harm caused by

[Viloski’s] conduct.” Castello

, 611 F.3d at 123 (internal quotation

marks omitted). The District Court found that the conspiracy in

which Viloski participated inflicted “extensive harm” on DSG and

“various landlords, real estate developers, investors, property

owners, and others involved in the development of new DSG stores.”

Viloski

, 53 F. Supp. 3d at 531. We see no reason to second

‐ guess that

factual finding.

Finally, we address whether the challenged forfeiture would

deprive Viloski of his livelihood. Although Viloski bears the burden20 of showing the unconstitutionality of the forfeiture, see Castello

, 611

F.3d at 120, he has presented no evidence that it would prevent him

from earning a living upon his release from prison. 17 Instead, he

urges us to consider “compelling personal factors concerning [his]

age, health and dire financial circumstances.” Def. Br. 8. But as we

emphasize above, these factors are irrelevant in themselves. We

consider them only insofar as they, in conjunction with the

challenged forfeiture, would deprive a defendant of his livelihood.

Viloski has offered no reason to think that the challenged forfeiture

would have such an effect.

Accordingly, because the four Bajakajian factors support the

conclusion that the forfeiture is not grossly disproportional to the

gravity of Viloski’s offenses, and Viloski has failed to establish that

the forfeiture would deprive him of his livelihood, we reject as

17 Viloski’s appellate brief summarizes discussions in Bajakajian and

Levesque

, 546 F.3d at 83–85, regarding Magna Carta’s protection of an offender’s

livelihood, but he never applies those discussions to his own case. See Def. Br. 12–

13. Viloski also failed to present any facts to the District Court—or to make any

argument at all—regarding his livelihood. See Def. Submissions on Remand, App.

173–91. Accordingly, our review is for “plain error” only. See United States v.

Ubiera

, 486 F.3d 71, 74 (2d Cir. 2007); see also United States v. Messina

, 806 F.3d 55,

65 (2d Cir. 2015) (noting that plain

‐ error review requires “showing of (1) error, (2)

that is clear or obvious, (3) affecting appellant’s substantial rights, which in the

ordinary case means affecting the outcome of the district court proceedings, and

(4) seriously affecting [the] fairness, integrity or public reputation of judicial

proceedings”) (internal quotation marks, ellipsis, and alteration omitted)).

Nonetheless, because Viloski has adduced no facts at all suggesting that the

challenged forfeiture would deprive him of his livelihood, we would come to the

same conclusion even under de novo review.21 meritless Viloski’s Eighth Amendment challenge to the forfeiture

order. We also decline to review Viloski’s remaining claims, which

are not properly before us. 18

III. CONCLUSION

To summarize, we hold as follows:

(1) A punitive forfeiture violates the Excessive Fines Clause of

the Eighth Amendment if it is “grossly disproportional to

the gravity of [the defendant’s] offense.” United States v.

Bajakajian

, 524 U.S. 321, 324 (1998).

a. In determining whether a forfeiture is “grossly

disproportional,” courts may consider not only the

four factors we have previously derived from

Bajakajian

, 19 but also whether the forfeiture would

18 Viloski seeks to “preserv[e]” several “issues not before the present

panel”: (1) whether the challenged forfeiture was not authorized by statute,

because (a) the money at issue “was not possessed by

. . . Viloski as proceeds of

crime,” (b) “proceeds of mail fraud not affecting a financial institution are not

criminally forfeitable,” (c) “no applicable statute authorizes a ‘money judgment’

forfeiture,” or (d) no statute authorizes “‘joint and several forfeiture’”; and (2)

whether joint and several liability for the forfeiture “violated the Fifth and Sixth

Amendments because the indictment did not name that property as forfeitable.”

Def. Br. 2. Because Viloski concedes that these issues “are not open for decision at

this time, or

. . . are precluded

. . . by controlling precedent,” id

. at 31, there is no

need to address them here.

19 These factors are22 deprive a defendant of his “livelihood,” i.e.

, his future

ability to earn a living.

b. Courts should not consider a defendant’s personal

circumstances—such as age, health, or present

financial condition—when making a proportionality

determination, except insofar as they are relevant to

determining whether a forfeiture would deprive a

defendant of his livelihood.

(2) The forfeiture imposed on Viloski was not grossly

disproportional to the gravity of the offenses for which it

had been imposed.

a. Viloski failed to meet his burden of showing that the

challenged forfeiture would deprive him of his

livelihood.

b. The remaining factors described by Bajakajian weigh

in favor of the forfeiture’s constitutionality.

For the foregoing reasons, we AFFIRM the District Court’s

order of October 16, 2014.

(1) the essence of the crime of the defendant and its relation to

other criminal activity, (2) whether the defendant fits into the class

of persons for whom the statute was principally designed, (3) the

maximum sentence and fine that could have been imposed, and

(4) the nature of the harm caused by the defendant’s conduct.

George

, 779 F.3d at 122 (quoting Castello

, 611 F.3d at 120).