Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

MEMORANDUM^** 

Ignacio Velasco-Contreras pleaded guilty under a plea agreement to aiding and abetting the possession of fentanyl, a controlled substance, with intent to deliver. The presentence report recommended a fine of $50,000 to deprive Velasco-Contreras of whatever gains he had from selling drugs. The report found that he had almost $45,000 equity in his residence at 1001 Darwin Place in San Diego, California and suggested that he also had equity in another house. In response, Velasco-Contreras objected to the report's assessment of his equity in his residence and denied any interest in the other house. He contended that half of the $30,000 down-payment on the Darwin Place house was a loan on which he was still obligated, but whose existence the presentence report incorrectly discounted.

The district court sentenced Velasco-Contreras to 150 months imprisonment and a fine of $35,000, which it prescribed "shall be paid from the equity of the sale of the defendant's house if any amount is left after the government's forfeiture sale." The district court did not, however, rule on his objections. Nor did it announce that it was not relying on the contested items in the presentence report. Velasco-Contreras appeals on the ground that his fine violated Fed.R.Crim.Proc. 32(c) (3) (D).¹ 

The government contends that Velasco-Contreras' stipulation in a civil forfeiture action to forfeit his entire interest in the residence moots the appeal. See United States v. Pemberton, 852 F.2d 1241, 1243-44 (9th Cir. 1988). Velasco-Contreras filed no reply brief and therefore has not disputed either the government's characterization of the stipulation or the government's conclusion that his forfeiture moots his appeal. Based on the record before us, we agree with the government. Because by the terms of the district court's sentence, Velasco-Contreras' forfeiture reduces his fine to zero, his appeal is moot.

AFFIRMED.