Appeal from the United States District Court for the Central District of Illinois. No. 95 C 1043 -- Joe B. McDade, Judge.
Before CUMMINGS, FLAUM and DIANE P. WOOD, Circuit Judges.
DECIDED FEBRUARY 23, 1996
This case involves the question of whether a defendant who pleaded guilty to a criminal offense and entered into a stipulated judgment in a parallel civil forfeiture action, and is later sentenced in the criminal action, may challenge that sentence on double jeopardy grounds. The district court held that he could not and thus denied his 28 U.S.C. sec. 2255 motion for habeas corpus. We affirm the district court's decision.
On December 4, 1991, defendant was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. secs. 841 and 846. He entered a plea of not guilty. On December 5, 1991, the government filed a civil forfeiture action in rem pursuant to 21 U.S.C. sec. 881(a)(7), seeking a forfeiture of defendant's residence in Peoria, Illinois. *fn1 The complaint was based on the same criminal conduct underlying the parallel criminal action, alleging that the residence was used to store cocaine and distribute hashish and marijuana in violation of federal drug laws.
In January 1993, defendant began simultaneous settlement negotiations with the U.S. Attorney for both the civil and criminal actions against him. The result was that on January 13, 1993, defendant pleaded guilty to the criminal action pursuant to a plea agreement and entered into a stipulated judgment of forfeiture in the civil action, under which he forfeited his residence to the United States. The stipulated judgment of forfeiture was filed with the district court on that day and was entered as a final judgment on January 22, 1993.
On October 8, 1993, defendant was sentenced in the criminal case to 105 months of imprisonment, followed by a ten-year term of supervised release. Defendant did not appeal either the civil forfeiture judgment or his criminal conviction. However, on February 13, 1995, he filed a motion to vacate the criminal sentence under 28 U.S.C. sec. 2255 on double jeopardy grounds. This motion was denied on May 11, 1995, and this appeal followed.
Two years after he voluntarily pleaded guilty to criminal violations and forfeited his residence to the United States, defendant now contends that his criminal sentence was imposed in violation of the Double Jeopardy Clause of the Fifth Amendment. In order to follow defendant's argument, it is helpful to review the chronological order of the four relevant events: (1) defendant pleaded guilty and was convicted on January 13, 1993; (2) he simultaneously entered into a stipulated forfeiture judgment in the parallel civil action; (3) the judgment of civil forfeiture was entered January 22, 1993; (4) defendant was sentenced in October 1993. Defendant challenges only the fourth event, his sentencing.
Defendant's argument is somewhat complex. First, he notes that some Courts of Appeals have interpreted United States v. Austin, 113 S. Ct. 2801 (holding that a civil penalty can be so extreme as to violate the Eighth Amendment), and United States v. Halper, 490 U.S. 435 (holding that a civil penalty can be so extreme as to constitute a punishment for double jeopardy purposes), *fn2 to mean that the Double Jeopardy Clause prohibits parallel actions for criminal sanctions and civil forfeiture. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994) (dismissing a civil judgment of forfeiture that occurred after the defendant had been convicted and sentenced in a parallel criminal case), certiorari granted, 1996 WL 12801 (Jan. 12, 1996); United States v. Ursery, 59 F.3d 568 (6th Cir. 1995) (dismissing a conviction that occurred after the defendant had judgment entered against him in a parallel civil forfeiture action), certiorari granted, 1996 WL 12801 (Jan. 12, 1996); United States v. Perez, 70 F.3d 345, 349 (5th Cir. 1995) (dismissing an indictment that occurred after the defendant had a judgment entered against him in a parallel civil forfeiture action). Under the logic of these cases, because defendant's civil forfeiture occurred after his conviction in the criminal action, that forfeiture might have been a double jeopardy violation. But defendant is not challenging the forfeiture, he is challenging only the criminal sentence.
We also note that under the logic of these cases, if defendant had been found guilty after the civil forfeiture, the criminal conviction might have been a double jeopardy violation. But that is not what occurred; his conviction was completed prior to the forfeiture. To overcome this hurdle, defendant asks us not only to apply the holdings of the cases discussed above -- that a civil forfeiture is a separate jeopardy -- but to extend them in a rather innovative manner. Namely, to hold that jeopardy attaches at a different point in time for the prohibition against multiple punishments than for the prohibition against multiple prosecutions.
Defendant acknowledges that courts have generally held that "a defendant is considered to be convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him, and jeopardy therefore attaches with acceptance of his guilty plea." United States ex rel. Stevens v. Circuit Ct. of Milwaukee County, Wis., Branch VIII, 675 F.2d 946, 948 (7th Cir. 1982) (emphasis added). Because the district court accepted defendant's guilty plea prior to jeopardy attaching in the civil action, one would think it impossible to argue that his criminal sentence was a second jeopardy. However, defendant notes that the Double Jeopardy Clause prohibits both multiple prosecutions and multiple punishments. See United States v. Dixon, 113 S. Ct. 2849, 2855-2856. He contends that for purposes of the prohibition against multiple prosecutions, jeopardy attaches at the time a defendant either enters a guilty plea, is judged guilty, or is acquitted, after which he may not be prosecuted a second time for that same offense. However, for the purposes of the prohibition against multiple punishments, jeopardy attaches at the time a defendant suffers an initial punishment, after which he may not be punished a second time. Thus defendant contends that because he is making a "multiple punishments" claim, we should look to when he was punished, not when he was convicted, to determine when jeopardy ...