UNITED STATES of AMERICA v. Joshua Yancey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0511n.06
CASE NO. 15-6138
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
JOSHUA YANCEY,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. The defendant appeals the district court’s
denial of his post-judgment motion for relief from a forfeiture judgment. We affirm.
Joshua Yancey was one of 39 defendants charged together in a single indictment dated
April 11, 2013. R. 364. That indictment contained a “forfeiture allegation,” which specifically
included—among a lengthy list of property—a “money judgment” of $1,825,510 and an
assertion that “any and all interest [that all defendants, including Yancey] have in the above
described property is vested in . . . and hereby forfeited to the United States.” R. 364 at 9-11.
On August 6, 2013, Yancey entered into a plea agreement in which he agreed to “forfeit
to the United States all interest in the property listed in the forfeiture allegation in the Indictment
and [to] execute any documents necessary for this forfeiture.” R. 864 at ¶8. He also waived his
right to appeal “any determination made by the Court at sentencing with the sole exception that
[he] may appeal the length of the sentence if . . . [it] exceeds 162 months.” Id. at ¶7.

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On September 12, 2013, the district court issued a “preliminary judgment of forfeiture,”
which specifically named Yancey (and one other defendant) in the caption; began with the
statement that this order was “[b]ased upon the plea agreements”; and specifically ordered the
“money judgment” of $1,825,510 forfeited to the United States. R 883. Yancey did not respond.
On January 23, 2014, the district court held a sentencing hearing, at which it heard
argument about the sentence, considered the sentencing factors, and announced Yancey’s
sentence on the record. Specifically, the court announced that Yancey had “agreed to the
forfeiture allegations so I’ll enforce that.” R. 1493 at 32:16. The subsequent written judgment
says: “The defendant shall forfeit [his] interest in the following property to the United States: All
items listed in the forfeiture allegation of the superseding indictment.” R. 1139 at p. 6. In
apparent accordance with his appellate waiver, Yancey did not appeal the judgment.
Consequently, his conviction, sentence, and the forfeiture order were final at that time. 1
Some 18 months later, on August 7, 2015, Yancey raised a post-judgment collateral
challenge, moving the court for an order absolving him of responsibility for the money judgment
on the basis that, in his plea agreement, he “did not agree to be held jointly and severally liable
for [the] $1,825,510 money judgment”; that “the money judgment was not orally announced at
[his] sentencing hearing”; and “the money judgment was not included in [his] judgment entry.”
R. 1398 at 2. Thus, he claimed the forfeiture was not part of his sentence.
The district court denied the motion on three bases: (1) Yancey had waived the challenge
in his plea agreement, (2) Yancey’s motion was untimely, and (3) Yancey had “entered into [a]
1 In this appeal, Yancey has cited the recent decision of Honeycutt v. United States, 137 S. Ct. 1626, 1635
(2017) (“Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the
result of the crime.”), to argue that the forfeiture was improper. But the question in this appeal is not whether the
forfeiture was proper and our analysis is unchanged even if it was not. Yancey’s sentence, including the forfeiture
order, was final in February 2014, upon the expiration of his time for direct appeal. The question here is whether
Yancey waived his challenge to that (presumptively improper) order. And the answer is that he did.

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plea agreement[] in which [he] specifically agreed to the forfeiture[, and] [t]here is no question,
therefore, that [he] ‘knew of the forfeiture at sentencing.’” R. 1443.
Yancey appealed the denial of that motion, claiming that he is not responsible for the
money judgment because it “was never mentioned in his plea agreement, nor mentioned at the
sentencing hearing, nor included in his judgment entry.” Appellant Br. at 1 (Issue Presented).
The government responded that Yancey “had notice of and agreed to a legitimate forfeiture
money judgment.” Appellee Br. at 16. In reply, Yancey said that his “entire argument on appeal
is that the district court never imposed a money judgment against [him] at sentencing[, and] [t]he
district court’s failure to explicitly state the existence of a money judgment at the sentencing and
its omission of the money judgment from the judgment entry indicate that a money judgment
was never imposed against Yancey.” Appellant Reply Br. at 1.
Meanwhile, the government had moved to dismiss the appeal on the basis that Yancey
had waived his right to challenge any determination made by the district court at sentencing.
Yancey responded that he was not challenging “a determination made by the district court at
sentencing”; instead, his claim was solely that the district court had never imposed a money
judgment, never stated a money judgment at sentencing, and did not include a money judgment
in the judgment of conviction. In denying the government’s motion, we noted that we have
previously permitted a direct appeal to a forfeiture order despite the presence of an appellate-
waiver provision, relying on United States v. Droganes, 728 F.3d 580, 586-87 (6th Cir. 2013), in
which we acknowledged that Droganes had signed the broad appellate waiver but specified on
the particular facts that:
Droganes neither knowingly nor voluntarily waived his right to appeal the
forfeiture order. During the rearraignment colloquy, Droganes’s attorney
specifically stated his understanding that the issue of the number and value of any
returnable consumer fireworks would remain open after entering into the plea
agreement. The district court offered confirmation, noting (perhaps incorrectly)

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that the issue was not part of the criminal case. The district court again intimated
that the issue remained unresolved at sentencing. For another thing, the express
terms of the appellate-waiver provision are silent regarding the issue raised here.
And it is at least ambiguous whether the ‘any sentence’ language in the provision
extends to a corresponding forfeiture order. Because plea agreements are to be
interpreted strictly, with ambiguities construed against the government, we
decline to apply the appellate-waiver provision in this instance.
Id. (quotation marks, editorial marks and citations omitted).
The facts in Droganes are drastically different from the facts in the present case. Here,
Yancey waived any challenge to any determination by the court at sentencing and the plea
agreement included an express provision in which Yancey agreed to “forfeit to the United States
all interest in the property listed in the forfeiture allegation in the Indictment”; the State included
the money judgment in the forfeiture provision of the indictment, which was thereafter referred
to—consistently and accurately—in Yancey’s plea agreement, the preliminary judgment of
forfeiture, the sentencing hearing, and the criminal judgment; Yancey never once questioned or
challenged the money judgment or the forfeiture (in the indictment, the plea agreement, the
preliminary judgment of forfeiture, the sentencing hearing, or the criminal judgment); the court
never suggested that the issue was unresolved; and there were no ambiguities.
Moreover, Yancey is not arguing that his plea agreement waiver was not knowing or
voluntary, or that there is any ambiguity. He is arguing that the government never alerted him to
the money judgment, that his plea agreement did not include the money judgment, and that the
court did not state the money judgment at sentencing or include it in the judgment of conviction.
That is incorrect. The indictment lists the money judgment; the plea agreement cites the
forfeiture items in the indictment; the sentencing hearing refers to that forfeiture; and the
judgment of conviction does likewise. This is a purely factual claim and Yancey has his facts
wrong.
For these reasons, we AFFIRM the judgment of the district court.

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