## Facts

- Tammy Levesque served as a courier in a multi-state marijuana distribution conspiracy.
- After federal surveillance, she was stopped for speeding in Maine; a K-9 alerted to her vehicle, and officers found 94 pounds of marijuana.
- Post-arrest, Levesque admitted she transported marijuana two to three times per week for months, delivering to multiple states and returning with cash.
- She pleaded guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana under 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846.
- Her plea agreement included forfeiture terms, including forfeiture of property used in the offense and entry of a money judgment in an amount set by the court.
- The government calculated a forfeiture money judgment of $3,068,000 by estimating total marijuana transported and multiplying by a per-pound price.
- Levesque objected that she was a low-level participant with limited gain and few assets, and argued the forfeiture was an excessive fine.

## Issues

1. Whether 21 U.S.C. § 853 permits a criminal forfeiture money judgment based on gross drug-trafficking proceeds attributable to the conspiracy, notwithstanding arguments that “proceeds” should mean net profits.
2. Whether a $3,068,000 forfeiture money judgment violates the Eighth Amendment’s Excessive Fines Clause, including whether the court must assess if the forfeiture would deprive the defendant of her livelihood.

## Decision

- The First Circuit upheld the government’s ability, as a statutory matter, to seek a § 853 forfeiture money judgment calculated from drug-trafficking proceeds rather than limiting “proceeds” to net profits.
- The court held the district court’s Excessive Fines analysis was incomplete because it did not address whether the forfeiture would deprive Levesque of her livelihood.
- The forfeiture order was vacated in relevant part and the case was remanded for further proceedings applying the proper Eighth Amendment analysis.

## Legal Principles

- Criminal forfeiture under 21 U.S.C. § 853 may include a money judgment designed to disgorge proceeds obtained directly or indirectly from a drug conspiracy.
- The Supreme Court’s fractured discussion of “proceeds” in a different statutory context does not automatically require construing § 853 “proceeds” as net profits in drug-trafficking forfeitures.
- A forfeiture violates the Eighth Amendment if it is grossly disproportionate to the gravity of the offense.
- Proportionality analysis commonly considers: (1) whether the defendant is within the class targeted by the statute, (2) other authorized penalties, and (3) the harm caused.
- The analysis must also consider whether the forfeiture would effectively deprive the defendant of a future livelihood.
- Inability to pay at sentencing, standing alone, does not make a forfeiture unconstitutional; the inquiry includes realistic future ability to pay and the forfeiture’s practical impact.

## Conclusion

The First Circuit sustained the statutory basis for a § 853 money-judgment forfeiture tied to drug proceeds but required a fuller Excessive Fines inquiry, remanding because the sentencing court did not evaluate whether the multi-million-dollar forfeiture would, in practice, deprive the defendant of her livelihood.


United States v. Levesque, 546 F.3d 78 (1st Cir. 2008)