UNITED STATES of America, Appellee, v. Anthony TAGGERT, Defendant-Appellant, 484 F. App'x 614

SUMMARY ORDER Defendant-appellant Anthony Taggert appeals from the district court’s judgment, entered on June 8, 2011, convicting him of various drug conspiracy, distribution, and possession charges and sentencing him to ninety-six months’ imprisonment, five years’ supervised release, and forfeiture in the amount of $2,248,000. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Taggert appeals only the forfeiture amount ordered by the district court, contending that the amount imposed created an unwarranted sentencing disparity among similarly situated defendants, and that the district court therefore failed to consider the need to avoid such disparities pursuant to 18 U.S.C. § 8553(a)(6) (“The court ... shall consider ... the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar con-duct_”).

Specifically, Taggert argues that the district court should have ordered a forfeiture amount in line with what it imposed on Brian Gaul, Taggert’s wholesale middleman supplier of methamphetamine, who cooperated with and testified for the government at Taggert’s trial. The district court sentenced Gaul prior to Taggert, ordering forfeiture in the amount of $20,000. We review a sentence challenged on appeal for procedural and substantive reasonableness. United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir.2008).

Where the defendant did not object to or raise the issue before sentencing below, as Taggert concedes he did not here, we review any procedural claim for plain error. See United States v. Uddin, 551 F.3d 176, 181 (2d Cir.2009). In examining a sentence for substantive reasonableness, we review it under a ‘“deferential abuse-of-discretion standard.’ ” Cavera, 550 F.3d at 189 (2d Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). With respect to calculation of the forfeiture amount, we review factual findings for clear error and legal conclusions de novo.

United States v. Roberts, 660 F.3d 149, 165 (2d Cir.2011). We have reviewéd the district court’s forfeiture order below in light of these principles and conclude that the district court committed no error and did not abuse its discretion in imposing forfeiture in the amount of $2,248,000. First, even assuming § 3553(a)(6) applies to forfeiture orders, we have previously held that § 3553(a)(6) “requires a district court to consider nationwide sentence disparities, but does not require a district court to consider disparities between co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d Cir.2008).

Here, the district court was not required to consider any disparity in this respect between Gaul and Taggert. Second, Gaul and Taggert were not similarly situated defendants in any event. Gaul acted as a middleman in some of Taggert’s drug purchases, sometimes brokering transactions with funds provided by Taggert, while Taggert arranged for transport of drugs to New York and carried out their sale and distribution in New York— including transactions not involving Gaul.

Further, Gaul pled guilty and cooperated with the government, whereas Taggert went to trial and only provided assistance to the government after his conviction following trial. Third, the district court’s findings with respect to the calculation of forfeiture were not clearly erroneous, see Roberts, 660 F.3d at 165, and the district court did not abuse its discretion in ordering the forfeiture amount. The government attributed approximately 44 pounds, or roughly 20 kilograms, of methamphetamine to Taggert based on his proffer with the government. Defense counsel agreed to this amount at sentencing. (See Sent.

Tr. 2-8 (“[M]y belief is, and I think it’s borne out by the government’s own submission, that the total quantity was around 44 pounds, which comes out to about 20 kilos.”)). The government provided a breakdown of the monies attributed to this amount in its sentencing memorandum. (See Gov’t Sent. Mem. 15). The district court reviewed the government’s calculations and found that “they adequately demonstrate that the proceeds here from ... at least a portion of [Taggert’s] methamphetamine sales would result in a forfeiture of $2,248,000.” (Sent Tr. 18).

Finally, even assuming the district court did err as to Gaul’s forfeiture amount in light of the subsequent calculations involving Taggert, it is of no consequence as the district court’s forfeiture order with respect to Taggert was not plainly erroneous nor was it located outside “the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal citation and quotation marks omitted). We have considered Taggert’s remaining arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. .

Taggert only raised the issue in a letter submitted to the district court almost three weeks after the sentencing and after already filing a notice of appeal. . It is not apparent that § 3553(a)(6) applies to an order of forfeiture. Title 18, United States Code,

Section 3554 governs an order of criminal forfeiture, making it mandatory for various drug offenses. See 18 U.S.C. § 3554. In addition, 21 U.S.C. § 853 governs criminal forfeitures specifically with respect to drug offenses, mandating that a court, "in imposing sentence ..., shall order, in addition to any other sentence imposed,” forfeiture of any property or proceeds obtained as a result of the offense conduct. See 21 U.S.C. § 853(a). Neither statute incorporates or makes reference to the sentencing factors listed under § 3553(a). See 18 U.S.C. § 3554; 21 U.S.C. § 853(a). In light of our disposition below, we do not decide this issue.