F I L E D

United States Court of Appeals

Tenth Circuit

JUL 8 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWINA CODDINGTON,

Defendant-Appellant.

No. 96-2103

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 95-353 JP)

Submitted on the briefs:

Ralph C. Binford, Deming, New Mexico, for Defendant-Appellant.

John J. Kelly, United States Attorney; Kelly H. Burnham, Assistant United States

Attorney; Albuquerque, New Mexico, for Plaintiff-Appellee.

Before HENRY, LOGAN, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.
1 After examining the briefs and appellate record, this 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 case is therefore ordered

submitted without oral argument.

2

Defendant Edwina Coddington appeals the district court’s decision declining to

depart downward from the range of sentences established by the United States Sentencing

Guidelines (USSG) for her offense level and criminal history. She argues that because

her personal property was forfeited in administrative proceedings, the district court should

have departed downward pursuant to 18 U.S.C. § 3553(b) and USSG § 5K2.0. We

conclude that forfeiture of a defendant’s property is not a valid basis for departure under

18 U.S.C. § 3553(b) and USSG § 5K2.0. Additionally, because there is no indication in

the record that the district court incorrectly interpreted the Guidelines or erroneously

believed that it lacked the authority to depart downward, we conclude that we lack

jurisdiction and dismiss this appeal.1

I. BACKGROUND

Ms. Coddington was charged in a second superseding indictment with conspiracy

to distribute cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and possession

with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. She pled guilty to both counts.
3

Prior to sentencing, Ms. Coddington filed a motion to suspend sentence and a

motion for downward departure. In the motion to suspend sentence, Ms. Coddington

argued that because some of her personal property (a truck, a camper, and $1,493.00 in

cash) had been forfeited through administrative proceedings, the district court lacked the

“capacity to impose any additional imprisonment as the aforesaid [administrative]

forfeiture constitutes punishment.” Rec. vol. I, doc. 206 at 2 (Motion and Memorandum

filed Apr. 1, 1996). Ms. Coddington cited several Supreme Court cases suggesting that

certain kinds of administrative forfeitures may constitute punishment. See id. at 1 (citing

Department of Revenue v. Kurth Ranch, 511 U.S. 767 (1994); Austin v. United States,

113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S. 435 (1989)). She also cited

this court’s decision in United States v. 9844 South Titan Court, 75 F.3d 1470, 1482-91

(10th Cir. 1996), which concluded that civil forfeiture may constitute punishment under

the Double Jeopardy Clause of the Fifth Amendment. See Rec. vol. I, doc 206 at 2. 

In her motion for downward departure, Ms. Coddington noted her cooperation

with the government investigation, her lack of a criminal record, and her family

responsibilities. See Rec. vol. I, doc.198 at 4-5 (Motion for Downward Departure filed

Apr. 11, 1996). She said that “her participation in a drug dealing venture was totally out

of character” and that she “[was] qualified for a downward departure for ‘aberrant

behavior.’” Id. at 5.
4

The government opposed both of these motions, and the district court denied them.

The court sentenced Ms. Coddington to concurrent sentences of 135 months on each of

the two counts.

II. DISCUSSION

On appeal to this court, Ms. Coddington argues that the district court erred when it

denied her motion for downward departure. She contends that because the effect of the

forfeiture of a defendant’s property on his or her sentence is not discussed in the

Sentencing Guidelines, such a forfeiture constitutes a “mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different from that described.” 

18 U.S.C. § 3553(b); see also USSG § 5K2.0. Because her truck, camper, and $1,493.00

in cash were forfeited, Ms. Coddington says, the district court should have departed

downward from the applicable guideline range in imposing her sentence.

Ms. Coddington did not raise this argument before the district court. As noted, in

the district court proceedings, Ms. Coddington argued that the forfeiture of her property

barred the imposition of any sentence of incarceration. She did not argue that forfeiture

constituted a basis for downward departure.

Nevertheless, even if Ms. Coddington had raised this argument, it still would have

provided no basis for downward departure. District courts are authorized to depart
5

downward from the range of sentences specified in the Sentencing Guidelines if “the

court finds that there exists . . .[a] mitigating circumstance of a kind . . . not adequately

taken into consideration by the Sentencing Commission in formulating the guidelines that

should result in a sentence different from that described.” 18 U.S.C. § 3553(b); see also

USSG § 5K2.0; United States v. Maples, 95 F.3d 35, 37 (10th Cir. 1996) (discussing

grounds for downward departure under 18 U.S.C. § 3553(b) and USSG 5K2.0), cert.

denied, 117 S. Ct. 716 (1997); United States v. Zeigler, 39 F.3d 1058, 1060-61 (10th Cir.

1994) (same). Forfeiture of a defendant’s property, the grounds on which Ms.

Coddington seeks downward departure in the instant case, is expressly considered in the

Sentencing Guidelines. USSG § 5E1.4 provides that “[f]orfeiture is to be imposed on a

convicted defendant as provided by statute.”

In light of § 5E1.4, the Third, Fourth, Seventh, and Ninth Circuits have held that

forfeiture of a defendant’s property does not constitute a basis for downward departure

under 18 U.S.C. § 3553(b) and USSG § 5K2.0. See United States v. Shirk, 981 F.2d

1382, 1397 (3d Cir. 1992) (“We interpret the Guidelines’ straightforward mandate that

‘forfeiture is to be imposed . . . as provided by statute’ to mean that the Commission

viewed monetary forfeiture as entirely distinct from the issue of imprisonment.”), vacated

on other grounds, 510 U.S. 1068 (1994); United States v. Weinberger, 91 F.3d 642, 644

(4th Cir. 1996) (“Reducing a sentence based on a defendant’s exposure to forfeiture

would link the precise matters that the Commission intended to keep separate.”); United
6

States v. Hendrickson, 22 F.3d 170, 175 (7th Cir. 1994) (“[W]e find that the Sentencing

Commission adequately considered both the possibility of statutory forfeiture and degree

of hardship a forfeiture could work when constructing the Guidelines.”); United States v.

Crook, 9 F.3d 1422, 1426 (9th Cir. 1993) (“By considering forfeiture in § 5E1.4 but not

providing that forfeiture may be considered in setting a term of incarceration, the

Commission indicated that forfeiture and incarceration are to be considered separately.”). 

In reaching this conclusion, several of these courts have observed that the fact that a

defendant’s property has been forfeited does not demonstrate the reduced culpability that

might warrant a reduction in a defendant’s sentence. See Weinberger, 91 F.3d at 644;

Hendrickson, 22 F.3d at 176.

These decisions are persuasive. We therefore conclude that the forfeiture of a

defendant’s property does not constitute a basis for downward departure under 18 U.S.C.

§ 3553(b) and USSG § 5K2.0.

This conclusion establishes that the district court properly applied the guidelines

and understood its authority in denying Ms. Coddington’s request for departure. “Absent

the trial court’s clear misunderstanding of its discretion to depart, or its imposition of a

sentence which violates the law or incorrectly applies the guidelines, we have no

jurisdiction to review a refusal to depart.” United States v. Belt, 89 F.3d 710, 714 (10th

Cir. 1996) (citing 18 U.S.C. § 3742(a); United States v. Rodriguez, 30 F.3d 1318, 1319
2 During the pendency of this appeal, after the filing of all the briefs, Ms.

Coddington sent this court a letter alleging that her attorney in the district court

proceedings and in this appeal has not effectively represented her. We will not consider

these matters in this appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th

Cir. 1995) (en banc) (concluding that, in most instances, ineffective assistance of counsel

claims are not properly decided on direct appeal).

7

(10th Cir. 1994); United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)). 

That principle bars further review here.

III. CONCLUSION 

Accordingly, we conclude that the forfeiture of Ms. Coddington’s property does

not constitute a basis for downward departure under 18 U.S.C. § 3553(b) and USSG §

5K2.0 and DISMISS Ms. Coddington’s appeal for lack of jurisdiction.2