* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 7 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. $14,344.50 IN U.S. CURRENCY and 14 FIREARMS,

Defendants, and MIGUEL MONTOYA,

Claimant - Appellant, and BERTHA MONTOYA,

Claimant. No. 02-2145 (D.C. No. CIV-01-357-LH/LFG) (D. New Mexico)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and HARTZ , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. On March 29, 2001, the United States filed a Verifi ed Complaint for Forfeiture in Rem, alleging that $14,344.50 and 14 firearms were subject to forfeiture under 21 U.S.C. § 881(a)(6). On May 14, 2001, appellant pro se Miguel Montoya filed an Answer to the complaint, inwhich he identified himself as a claimant and asserted an interest in the $14,3 44.50 that the Government sought to forfeit. In a motion filed November 29, 2001, the Government moved the district court to dismiss and/or strike Mr. Montoya’s answer for lack of standing. On April 9, 2002, the district court ent ered an order granting the Government’s motion to dismiss, and on April 17, 20 02, the district court entered a Final Judgment and Order of Forfeiture. Mr. Mont oya appeals the district court’s decisions to dismiss him from this forfeitu re action and to order the forfeiture of the $14,344.50 to the Government. Federal and local agents found the money and firear ms during a search of Mr. Montoya’s home on July 1, 1998. After being ch arged with various offenses relating to drug distribution, Mr. Montoya entered into a plea agreement on July 28, 1999. The agreement included a provision stating that Mr. Montoya-3-

would “forfeit to the United States all of his righ t, title, and interest in” the cash and weapons found during the July 1, 1998, search. The district court found that Mr. Montoya had waive d his interest in the property through the terms of his plea agreement an d therefore lacked standing to challenge the forfeiture. Given that the parties d o not dispute the central fact relevant to standing in this case—Mr. Montoya’s entry into a plea agreement containing a forfeiture provision—we review the dis trict court’s determination de

novo. See Guides, Ltd. v. Yarmouth Group Prop. Mgmt, Inc. , 295 F.3d 1065, 1072 (10th Cir. 2002) (“We review issues of standin g de novo.”); Locke v. Saffle , 237 F.3d 1269, 1270-1271 (10th Cir. 2001) (“Because the parties do not dispute the facts, we have before us a purely legal questio n, and thus we review the matter de novo.”). A party challenging a forfeiture must show “‘a faci ally colorable interest in the proceedings sufficient to satisfy the case-or-c ontroversy requirement and prudential considerations defining and limiting the role of the court.’” United States v. Rodriguez-Aguirre , 264 F.3d 1195, 1204 (10th Cir. 2001), quoting United States v. 116 Emerson St. , 942 F.2d 74, 78 (1st Cir. 1991). “[A]n allegation of ownership and some evidence of owners hip are together sufficient . . . .” United States v. U.S. Currency , $81,000 , 189 F.3d 28, 35 (1st Cir. 1999).-4-

Here, however, whatever interest Mr. Montoya once h ad in the currency, he relinquished in his plea agreement. This court has recognized that defendants can surrender their claims to seized property by assent ing to forfeiture provisions included in plea agreements. In United States v. Le , 173 F.3d 1258, 1263 (10th Cir. 1999), a criminal defendant entered into a ple a bargain under which he “agree[d] to forfeit and otherwise waive any owners hip right he might possess in all items seized during the investigation of any of the acts alleged.” The defendant then filed a motion for the return of his property under Federal Rule of Criminal Procedure 41(e), and the district court de nied the motion. Id. We affirmed the district court’s decision, observing that “[t]he district court was entirely correct in denying Le’s motion because Le . . . relinquished any ownership rights he may have had in the property.” Id. at 1278. See also United States v. Grover , 119 F.3d 850, 852 (10th Cir. 1997) (holding that a Rule 41(e) claimant “relinquished any possessory claim h e had to the property” when he signed a forfeiture agreement at the time he ent ered into a plea bargain). On appeal Mr. Montoya suggests that he should not b e bound by his promise to forfeit the $14,344.50, because his due process rights were violated when he entered into the plea agreement with the Un ited States. Mr. Montoya alleges that at the time of his plea, he was not gi ven an adequate opportunity to object to the provision under which he abandoned hi s ownership interest in the-5-

money. But the record shows that Mr. Montoya faile d to raise this argument before the district court. “Generally, an appellat e court will not consider an issue raised for the first time on appeal.” Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1232 (10th Cir. 1997). Therefore, for substantially the reasons cited by the district court, we conclude that Mr. Montoya lacks standing to contestthis forfeiture action. The district court’s order granting the United States’ motion to dismiss and the Final Judgment and Order of Forfeiture are AFFIRMED.
Entered for the Court

Harris L Hartz Circuit Judge