United States of America v. Kenneth Taylor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH TAYLOR,
Defendant-Appellant.
No. 19-10381
D.C. No. 4:17-cr-00191-JST-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon Tigar, District Judge, Presiding
Submitted January 14, 2021**
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,*** District
Judge.
Kenneth Taylor pleaded guilty to conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349, and to making and subscribing a false tax return, in
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violation of 26 U.S.C. § 7206(1). At sentencing, the district court ordered a forfeiture
money judgment against Taylor, which he challenges as an unlawful form of
punishment. Because the parties are familiar with the facts, we do not recount them
here, except as necessary to provide context to our ruling. We have jurisdiction over
Taylor’s timely appeal pursuant to 28 U.S.C. § 1291. Because Taylor has waived his
right to appeal his sentence, we dismiss.
We review de novo whether a defendant has waived his right to appeal. United
States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016). Generally, a “waiver of appellate
rights is enforceable if (1) the language of the waiver encompasses [the defendant’s]
right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily
made.” Id. (citation and quotations omitted). In Lo, we held that this standard was
met where: “[t]he district court reviewed the plea agreement thoroughly during the
Rule 11 colloquy;” the district court “warned [the defendant] that the sentence could
be greater than he had been told;” and “the scope of [the] appeal waiver clearly
include[d]” forfeiture, with the statement, “‘I also agree to waive any right I have to
appeal any aspect of my sentence, including any orders relating to forfeiture and or
restitution.’” Id. at 786–87. Here, the district court was similarly thorough in its
review and warning, and the plea agreement contained language regarding waiving
the right to appeal “any aspect of [Taylor’s] sentence, including any orders relating
to forfeiture and/or restitution.” Accordingly, Taylor’s waiver of appellate rights is

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enforceable, absent an applicable exception. A waiver of appellate rights would not
be enforceable where “the sentence violates the law,” United States v. Watson, 582
F.3d 974, 987 (9th Cir. 2009), and Taylor primarily argues that forfeiture money
judgments are unlawful. Our court, however, has already decided that forfeiture
money judgments are permissible in the criminal forfeiture context, even after the
Supreme Court handed down its decision in Honeycutt v. United States, 137 S. Ct.
1626 (2017). United States v. Nejad, 933 F.3d 1162 (9th Cir. 2019) (“We have
regarded such [money] judgments as necessary to avoid undermining Congress’
objectives in enacting mandatory forfeiture sanctions, pointing in particular to the
substitute-property provision found in 21 U.S.C. § 853(p).”). Therefore, Taylor’s
waiver of appellate rights is enforceable.
DISMISSED.

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