Case: 15-11201    Date Filed: 11/02/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-11201
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:14-cr-00045-WTH-PRL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellant,

                                   versus

KALEN AMANDA KENNEDY,

                                                              Defendant-Appellee.

                          _______________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (November 2, 2015)



Before MARCUS, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.

PER CURIAM:

     The government appeals the district court’s denial of its motion for a
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forfeiture money judgment against Kalen Kennedy. Kennedy has filed no cross-

appeal. Reversible error has been shown; we vacate the judgment and remand.

      A one-count federal indictment charged Kennedy with stealing funds from

the Social Security Administration (“SSA”), in violation of 18 U.S.C. § 641. The

indictment also included a notice of forfeiture, pursuant to 18 U.S.C. §

981(a)(1)(C) and 28 U.S.C. § 2461(c), in which the government sought to forfeit

$78,648: the amount of loss sustained by the SSA as a result of Kennedy’s

offense. Kennedy pleaded guilty without a plea agreement.

      The government filed a motion for entry of a forfeiture judgment against

Kennedy in the amount of $78,648. At sentencing, the district court denied the

government’s forfeiture motion in the light of the court’s order requiring Kennedy

to pay $78,648 in restitution.

      On appeal, the government contends that the district court erred as a matter

of law by denying its forfeiture motion. We review the district court’s legal

conclusions about criminal forfeiture de novo. United States v. Browne, 

, 1278 (11th Cir. 2007).

      We conclude -- and Kennedy concedes expressly -- that, as a matter of law,

criminal forfeiture was mandatory in this case. Where a defendant is convicted of

an offense giving rise to a congressionally-authorized civil forfeiture and when the

government has included a notice of forfeiture in the indictment, “the court shall


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order the forfeiture of the property as part of the sentence in the criminal case . . .

.” 28 U.S.C. § 2461(c) (emphasis added).

      Kennedy’s offense was subject to civil forfeiture under 18 U.S.C. § 981,

which authorizes the government to seek civil forfeiture of property that either

constitutes or is derived from proceeds traceable to a violation of 18 U.S.C. § 641.

See 18 U.S.C. §§ 981(a)(1)(C), 1956(c)(7)(D). As a result, and because Kennedy’s

indictment included a notice of forfeiture, the sentencing court was required to

order forfeiture as a part of Kennedy’s sentence. See 28 U.S.C. § 2461(c); United

States v. Brummer, 

, 1250-51 (11th Cir. 2010) (when criminal

forfeiture is authorized under section 2461(c), the district court has no discretion

and must order forfeiture); cf. United States v. Padron, 

, 1162 (11th

Cir. 2008) (applying 18 U.S.C. § 981, 1956(c)(7), and 28 U.S.C. § 2461(c) to

affirm the entry of a forfeiture money judgment as part of defendant’s sentence for

mail fraud). Forfeiture funds go to the Department of Justice.

      The district court was also required by statute to order Kennedy to pay

restitution for the full amount of loss suffered by the SSA as a result of Kennedy’s

offense. See 18 U.S.C. § 3663A (when a defendant is convicted of an offense

against property under Title 18, the sentencing court “shall order . . . that the

defendant make restitution to the victim of the offense.”). Moreover, “because

restitution and forfeiture serve distinct purposes,” the district court lacked authority


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to “offset the amount of restitution owed to a victim by the value of property

forfeited to the government, or vice versa.” See United States v. Joseph, 

, 1354 (11th Cir. 2014) (“While restitution seeks to make victims whole by

reimbursing them for their losses, forfeiture is meant to punish the defendant by

transferring his ill-gotten gains to the United States Department of Justice.”).

Restitution goes to the Social Security Administration, an independent agency of

the federal government.

      On appeal, Kennedy acknowledges that the district court was statutorily

required to order both restitution and forfeiture. But she contends that, as applied to

her, imposing both forms of punishment would amount to double jeopardy. The

Double Jeopardy Clause “protects only against the imposition of multiple criminal

punishments for the same offense, and then only when such occurs in successive

proceedings.” Hudson v. United States, 

, 493 (1997) (citations and

emphasis omitted).

      We are unconvinced that the Double Jeopardy Clause is implicated by this

appeal. Kennedy’s case involves no successive proceedings. Instead, the district

court was required by statute to impose simultaneously both a forfeiture and a

restitution order as part of Kennedy’s sentence in a single criminal prosecution.

And we have upheld the imposition of both restitution and forfeiture amounts on




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the basis that “restitution and forfeiture serve distinct purposes.” See 

.

        Our position is also consistent with the other circuits that have addressed the

double jeopardy issue, each of which have concluded that concurrent restitution

and forfeiture orders raise no double jeopardy concerns. See, e.g., United States v.

Kalish, 

, 169 (2nd Cir. 2010) (the “simultaneous imposition [of

restitution and forfeiture] offends no constitutional provision”); United States v.

Taylor, 

, 566 (5th Cir. 2009) (imposition of both restitution and

forfeiture for the same crime results in no double recovery to the government when

the victim agency is an entity distinct from the Department of Justice (“DOJ”));

United States v. Venturella, 

, 1019-20 (7th Cir. 2009) (rejecting

defendant’s double jeopardy argument because restitution and forfeiture serve

different goals and because the victim agencies were separate entities from the

DOJ).

        We vacate the judgment and remand to the district court with instructions to

reimpose Kennedy’s sentence to include both a forfeiture money judgment and a

restitution order, each in the amount of $78,648.

        VACATED AND REMANDED.




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