United States v. Zackary Sanders
U.S. Court of Appeals for the Fourth Circuit
United States v. Zackary Sanders
Opinion
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACKARY ELLIS SANDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Vifrginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:20-cr-00143-TSE-1)
Argued: March 22, 2024 Decided: July 9, 2024
Before NIEMEYER, KING, and BENJAMIN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King
and Judge Benjamin joined.
ARGUED: Jonathan Shapiro, WASHINGTON & LEE UNIVERSITY SCHOOL OF
LAW, Lexington, Virginia, for Appellant. Joseph Attias, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Nina J. Ginsberg,
DIMUROGINSBERG, PC, Alexandria, Virginia, for Appellant. Jessica D. Aber, United
States Attorney, Aidan Taft Grano-Mickelsen, Assistant United States Attorney,
Richmond, Virginia, William Clayman, Trial Attorney, Annie Zanobini, Assistant United
States Attorney, Seth Schlessinger, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
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NIEMEYER, Circuit Judge:
Following Zackary Sanders’s convictions for violating federal child pornography
laws, the district court ordered the forfeiture, pursuant to 18 U.S.C. § 2253(a), of nine
electronic devices on which Sanders stored child pornography and with which he
committed the crimes. Objecting to the forfeiture, Sanders contended that § 2253(a) is not
so broad as to require the forfeiture of non-contraband items contained on the nine
electronic devices, such as personal photographs, personal business records, and the like.
Accordingly, he requested that the district court order the government “to allow his forensic
expert to segregate and make digital copies of non-contraband” items. The district court
refused his request, concluding that “nowhere does [§ 2253(a)] provide that only some
portion of the property containing child pornography should be subject to forfeiture. Nor
does the statute provide that non-contraband material on the devices should be separated
from contraband materials on the devices and returned to a defendant.”
On appeal from the district court’s order, Sanders challenges the court’s reading of
§ 2253(a). He also claims, for the first time on appeal, that the forfeiture order’s inclusion
of his non-contraband items was “plainly excessive under the Eighth Amendment.”
For the reasons that follow, we affirm.
I
Following an investigation, the FBI uncovered evidence that Sanders had, for over
two years, engaged in communications with underage boys, some as young as 13 years old,
through various social media and communication applications. In these communications,
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Sanders had the minors send him videos and pictures of themselves naked and in
compromising positions — writing degrading words across their bodies, masturbating, or
slapping their testicles repeatedly — some of which he later used as blackmail when one
of the minors threatened to disclose Sanders’s conduct. Sanders stored these videos and
photos, as well as other depictions of child pornography downloaded from the Internet, on
the same electronic devices that he used to communicate with the minors.
Sanders was indicted in 12 counts for the production, receipt, and possession of
child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), 2252(a) and (b). The
indictment also provided Sanders with notice that “all matters that contain visual
depictions” of child pornography and “any property . . . used or intended to be used to
commit” the child pornography offenses, including his various electronic devices, would
be forfeited as part of his sentence upon conviction.
Following a seven-day trial, a jury convicted Sanders on all 12 counts.
Prior to sentencing, the government filed a motion, pursuant to 18 U.S.C. § 2253(a),
for the forfeiture of nine devices — three laptops, two Apple iPads, two Apple iPhones,
and two thumb drives — that it had seized from Sanders and that Sanders had used to
produce, receive, and possess child pornography. Simultaneously, it opposed Sanders’s
contemporaneous motion under Federal Rule of Criminal Procedure 41(g) for return of the
non-contraband files stored on the devices. In his Rule 41(g) motion, Sanders also objected
to the entry of the proposed order of forfeiture. While Sanders acknowledged that he was
not entitled to the return of any property subject to forfeiture, he argued that the forfeiture
statute did not reach so broadly as to require the forfeiture of non-contraband items that
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were also stored on the electronic devices. He claimed that they represented “more than a
decade of [his] life, including personal photographs, personal and business records,
educational records, records of theater performances, contact information and emails.” He
requested that the court “direct the government to allow his forensic expert to segregate
and make digital copies of non-contraband data and image files that are stored on the
electronic devices subject to forfeiture using a protocol that was previously approved by
the FBI and the prosecution team for producing discovery.”
Following additional briefing on the issue, the district court ordered the forfeiture
of the nine electronic devices in their entirety and denied Sanders’s request to copy non-
contraband items. The court observed that, as a textual matter, § 2253(a) made no
exception for “non-contraband material” or “non-contraband portions of property,” and it
therefore concluded that “there [was] no doubt that the plain and unambiguous text of 18
U.S.C. § 2253(a) require[d] the forfeiture of the electronic devices in their entirety.” The
district court also observed that the process of distinguishing contraband and non-
contraband material in this case would have been “more complicated than merely
separating pornographic images from non-pornographic ones” because evidence at trial
had “demonstrated that [Sanders] offered employment in his businesses to several of the
minor victims.” As such, “some of the business files [Sanders] [sought] to be returned may
[have] contain[ed] information identifying [Sanders’s] minor victims,” requiring a
“detailed review of each file to ensure that no contraband material was inadvertently
disclosed to the defendant,” which would have been “entirely unworkable given finite
government resources.” Finally, the court observed that any burden on Sanders from the
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loss of access to non-contraband files was “a result of [his] own wrongdoing,” as he was
“the one who decided to commingle family photographs and business records with images
of child pornography.”
From the district court’s order, dated August 19, 2022, Sanders filed this appeal.
And for the first time on appeal, he also challenges the district court’s forfeiture order as
an “excessive fine” under the Eighth Amendment.
II
The criminal forfeiture statute at issue and as relevant provides:
A person who is convicted of an offense . . . involving a visual depiction [of
child pornography] . . . shall forfeit to the United States such person’s interest
in —
(1) any visual depiction . . . or any book, magazine, periodical, film,
videotape, or other matter which contains any such visual depiction . . . ;
[and]
* * *
(3) any property, real or personal, used . . . to commit . . . such [child
pornography] offense . . . .
18 U.S.C. § 2253(a). Thus, these provisions require the forfeiture, following convictions
involving child pornography, of (1) all depictions of child pornography, (2) any matter
containing such depictions, and (3) any property used to commit the crimes involving
depictions of child pornography.
In this case, the district court found that all nine of the electronic devices at issue
contained visual depictions of child pornography and that all nine devices were used to
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commit the child pornography offenses of conviction. Accordingly, it ordered the
forfeiture of all nine devices “in their entirety” to the government.
While Sanders agrees that the nine devices were used to commit the crimes and
therefore were forfeitable, he contends that the scope of the forfeiture must be limited to
the devices themselves and the actual depictions of child pornography in the devices and
may not include non-contraband items, such as family pictures and business documents
that he had stored on them. To make his argument, he focuses on the definitional scope of
two terms — “other matter,” as used in § 2253(a)(1), and “property,” as used in
§ 2253(a)(3). He argues that “other matter” refers to “any computer file,” not the entire
electronic device, and similarly that “property” refers to the devices themselves and only
the contraband computer files, but not the non-contraband computer files. Accordingly,
he contends that the district court erred in refusing to order the government to return to him
non-contraband files contained on the nine electronic devices.
Before addressing the reasoning underpinning each of Sanders’s arguments, we will
begin with the text of the forfeiture statute, see Taylor v. Grubbs, 930 F.3d 611, 616 (4th
Cir. 2019), and, in light of Sanders’s arguments, specifically with the text of the two
subsections at issue, § 2253(a)(1) and § 2253(a)(3).
A
As to § 2253(a)(1), the text provides that a defendant convicted of a crime involving
child pornography forfeits two classes of things: (1) “any visual depiction” of child
pornography and (2) “any book, magazine, periodical, film, videotape, or other matter
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which contains any such visual depiction” of child pornography. 18 U.S.C. § 2253(a)(1)
(emphasis added). While the forfeiture of any “depiction” does not give rise to any
argument here, the second portion, forfeiting any “matter” that contains such a depiction,
does.
To be sure, standing alone, “any . . . other matter” is a broad term. But “[t]o strip a
word from its context is to strip that word of its meaning.” Biden v. Nebraska, 143 S. Ct.
2355, 2378 (2023) (Barrett, J., concurring). In context, “matter” is given meaningful
definition from at least three separate textual sources. First, its context with “any book,
magazine, periodical, film, [or] videotape” suggests that “matter” shares meaning with
those neighboring words, giving it a more precise meaning under the interpretive canon of
noscitur a sociis. See United States v. Williams, 553 U.S. 288, 294 (2008) (recognizing
the canon to “counsel[] that a word is given more precise content by the neighboring words
with which it is associated”). Thus, “matter” cannot be read, by force of that canon, to
refer to earth, rock, air, or water; rather, it would refer to any medium, like a “videotape”
or a “film,” that could contain a recording of visual depictions, such as electronic devices.
Second, “any other matter” is restricted to things that can contain visual depictions,
inasmuch as the term “matter” is followed in the text by the modifying clause, “which
contains any such visual depictions.” While trees, bushes, and grass are matter, they cannot
contain visual depictions; but electronic devices can. Thus, the latter, but not the former,
falls within the statute’s scope.
Third, the statute limits “any other matter” to something that can contain visual
depictions of child pornography, and “visual depictions” is a term defined to include “data
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stored on [a] computer disk.” 18 U.S.C. § 2256(2)(B)(5). Thus, because matters
containing visual depictions include matters that can contain data stored on a computer
disk, the nine devices at issue in this case would qualify as “matter.”
Moreover, the forfeiture statute’s inclusion of “any other matter” was deliberately
broad so as to serve as a catchall to encompass devices or media that could hold or contain
visual depictions of child pornography. This is evidenced by Congress’s direction that the
scope of forfeiture be liberally construed. See 18 U.S.C. § 2253(b) (incorporating
provisions of the Controlled Substances Act, 21 U.S.C. § 853 (addressing the criminal
forfeiture of property)); 21 U.S.C. § 853(o) (providing for the liberal construction of
forfeiture “to effectuate its remedial purposes”).
We thus readily conclude that § 2253(a)(1) requires the forfeiture of electronic
devices that contain visual depictions of child pornography.
Sanders argues to the contrary that “any other matter” refers only to contraband
computer files, not the entire electronic device. We find, however, that this reading is
textually unsupportable. Sanders argues that books, magazines, periodicals, films, and
videotapes, unlike electronic storage devices, are items that can be “separately viewed,
copied, and transmitted, and from which content cannot be removed without destroying the
original form.” He maintains that the devices themselves, unlike the files stored within
them, “share none of these features.” He explains,
Nor does child pornography often appear in books, magazines, periodicals,
films, and videotapes that are not also dedicated to that content further
distinguishing them from storage devices like computers and cellphones
which rarely store information solely devoted to child pornography. Because
the focus of § 2253(a)(1) is to remove depictions of child pornography from
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circulation, forfeiting physical devices storing large quantities of personal
information unrelated to any child pornography offense does not advance the
purposes of subsection (a)(1) or reduce the amount of child pornography in
circulation and was not a proper basis upon which to forfeit Sanders’s legally
possessed file[s].
Yet, Sanders overlooks that the criminal forfeiture of matters containing child pornography
does not simply serve the function of removing the visual depictions of child pornography
themselves. That is covered by the first portion of § 2253(a)(1) (providing for the forfeiture
of all visual depictions). Rather, the purpose of the entire forfeiture provision is also to
serve as punishment and deterrence. See Kaley v. United States, 571 U.S. 320, 323 (2014).
Sanders does, however, raise a legitimate policy argument based on the fact that
today computers and cellphones regularly store large quantities of personal information,
even though they may also contain contraband. And this argument has gained traction in
the context of Fourth Amendment searches and seizures. See Riley v. California, 573 U.S.
373, 396–97 (2014) (noting the special considerations at play with searches of cellphones
under the Fourth Amendment because “[a] phone not only contains in digital form many
sensitive records previously found in the home; it also contains a broad array of private
information never found in a home in any form”). But this argument fails to recognize the
distinction between Fourth Amendment searches and statutory criminal forfeitures. In
requiring the forfeiture of devices “containing” contraband, Congress imposed a penalty
both to punish and to discourage the production, receipt, and possession of child
pornography. Kaley, 571 U.S. at 323. Necessary to the imposition of that punishment,
which comes at the end of process, is the prior adjudication of guilt with the attendant
procedural protections afforded by the Constitution. See, e.g., 18 U.S.C. § 2253(a) (“A
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person who is convicted of an offense under this chapter . . . .”). In contrast, the Fourth
Amendment provides on the front end safeguards that ensure that searches and seizures
conducted to collect evidence to prosecute crimes reflect certain property and privacy
interests. See Carpenter v. United States, 585 U.S. 296, 304 (2018). As such, Sanders’s
argument compares apples to oranges. Moreover, any such policy argument designed to
modify the punishment of forfeiture must be addressed to Congress. See Nickey Gregory
Co., LLC v. AgriCap LLC, 597 F.3d 591, 608 (4th Cir. 2010) (“The judiciary . . . should
not insert itself in these policy matters by questioning or debating legislative judgments, as
it is constituted only to comprehend, interpret, and apply what Congress has duly
provided”).
We hold that by the clear text, § 2253(a)(1) provides for the forfeiture of electronic
devices containing child pornography.
B
As to § 2253(a)(3), the second provision placed at issue by Sanders, the text provides
for the forfeiture of “any property . . . used . . . to commit” crimes involving child
pornography. Again, “property” is restricted by the text to refer to property used to commit
the offense of conviction. We conclude that “property” as used in § 2253(a)(3) is not
ambiguous and includes the nine electronic devices that were concededly used to commit
the crimes of which Sanders was convicted.
In this case, the forfeited electronic devices were made up of mechanisms and
components such as central processing units, memories, hard drives, and other items
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allowing for communication with the Internet, all of which enabled Sanders to
communicate with the underage boys, to produce visual depictions of child pornography,
to receive images of child pornography both from the boys and from the Internet, or to
store and possess the images on his devices. While the images themselves were certainly
contraband and therefore forfeitable, they were not themselves the property used to commit
the relevant crimes. The entire devices were, and therefore they were subject to forfeiture.
Sanders acknowledges that the electronic devices are forfeitable as property used to
commit the child pornography offenses but argues that the non-contraband files contained
on them are not. More specifically, relying on the statutory definition of property, which
includes both tangible and intangible property, see 18 U.S.C. § 2253(b);21 U.S.C. § 853
(b)
(defining property to include “tangible and intangible property”), Sanders argues that
§ 2253(a)(3)’s authorization to forfeit “property” applies only to the electronic devices and
does not reach non-contraband property contained within them. He reasons that while the
definition of property includes two forms — tangible and intangible — the district court
treated them as the same. If they were treated as separate property, he argues, the court
would have been required to order the government to return the separate non-contraband
property, as “numerous other courts have previously held,” citing Fourth Amendment
cases, such as Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001), United States v. Williams,
592 F.3d 511(4th Cir. 2010), and In re Search Warrant Issued June 13, 2019,942 F.3d 159
(4th Cir. 2019). Sanders explains further that “[n]either case law nor common sense
suggests any reason to distinguish a computer from an analogous file cabinet containing a
large number of documents when determining whether property was improperly seized.”
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He argues that the same, by analogy, should apply to forfeitures of electronic devices and
their contents.
Sanders’s argument, however, faces several barriers that he has not hurdled. First,
the cases to which he cites are Fourth Amendment cases, and not forfeiture cases. As
noted, forfeiture is a punishment created by Congress that is circumscribed by the
requirements of the Eighth Amendment and not by the scope of seizures regulated by the
Fourth Amendment.
But more importantly, § 2253(a)(3) does not so limit the term “property” when
requiring that any property used to commit a child pornography offense must be forfeited.
If property referred separately to electronic devices and the files on them, as Sanders
contends, such that files on the devices could be sorted into contraband and non-contraband
files, then the files themselves, whether contraband or not, would have to fit the definition
of property in § 2253(a)(3). Yet they do not do so. Property as used in § 2253(a)(3), is
defined to be property “used to commit” the child pornography offense. 18 U.S.C.
§ 2253(a)(3) (emphasis added). But the files in the electronic devices here — whether
pornographic or not — were not used to commit the offenses. They did not enable Sanders
to communicate with underage boys; they did not enable Sanders to instruct the boys about
how to create sexual images; they did not enable Sanders to receive images; they did not
enable Sanders to store them. They were themselves the product of the electronic devices’
various mechanisms and components and Sanders’s use of them. Thus, property, as used
in § 2253(a)(3), could not refer simply to the files to which Sanders refers.
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Moreover, Sanders points to no court precedent, and we have found none, that
interprets “property” in § 2253(a)(3) to refer to electronic devices as distinct from the files
contained on them. Indeed, courts have rejected that “the text of § 2253(a)(3) allows for
subdivision of the property” at issue. United States v. Hull, 606 F.3d 524, 528 (8th Cir.
2010).
Sanders’s argument that computer files are “property” that can be distinguished
from the device itself also fails to acknowledge the physical reality of electronic devices.
Computer files representing “images” are simply data contained as electronic pulses stored
on magnetic fields in hard drives and other computer memory, which can be accessed with
instructions from a central processing unit, programs, and applications also functioning
with electronic pulses. See AOL, Inc. v. St. Paul Mercury Ins. Co., 347 F.3d 89, 94–95 (4th
Cir. 2003). In physical terms, thus, the recorded electronic pulses are incorporated by
magnetism into the physical mechanisms of the devices, such that they are one.
In that vein, Sanders has thus not explained how the government would give him
such files as “property” and how he would receive them. Computer files are not like
photographs in a box, some of which could simply be selected, removed, and physically
returned. Rather, they are nothing but invisible electronic pulses stored in computer
memory. As such, they can be erased or copied, but they cannot, as electronic matter, be
extracted as is and delivered. See AOL, 347 F.3d at 95 (“All data, information, and
instructions used in a computer are codified into a binary language, and the binary language
is processed by the computer by the operation of switches that are . . . configured on or off
by electricity”). Yet, even as Sanders argues that computer files are distinct property that
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can be “returned” to him, he seeks relief that belies the argument. He does not seek the
extraction and return of the electronic data representing non-contraband files, even if that
were possible. Rather, he seeks a court order “direct[ing] the government to allow his
forensic expert to segregate and make digital copies of non-contraband data and image files
that [were] stored on the electronic devices subject to forfeiture.” (Emphasis added). As
such, he does not argue that the government unlawfully possesses the non-contraband files,
but rather that he, as well as the government, should have access to them. Such a right to
access, however, must, in the first instance, be authorized by Congress.
We conclude that in the context of § 2253(a)(3), “property” can only mean the entire
device used to commit the offense, including the image files stored on it. See United States
v. Noyes, 557 Fed. App’x 125, 127 (3d Cir. 2014) (“There is nothing in [§ 2253(a)(3)]
which indicates that only a portion of the ‘property’ can be forfeited”).
At bottom, in enacting § 2253(a)(3), Congress made clear that it requires the
forfeiture of any property used to commit an offense involving child pornography, and
therefore, we conclude that the district court did not err in ordering forfeiture of the nine
electronic devices in their entirety as property that Sanders used in committing the offenses
of conviction.
III
Sanders also contends, for the first time on appeal, that the “district court’s forfeiture
of non-contraband files . . . was unconstitutionally excessive under the Eighth
Amendment’s Excessive Fines Clause.” He acknowledges that because he failed to present
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the argument to the district court, it is “reviewable for plain error.” See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731 (1993).
Sanders argues that the forfeiture of “personal, family and business” files was
“unconstitutionally excessive,” because such property had “incalculable value” — some
were “one-of-a-kind.” Thus, their forfeiture was a “disproportional” penalty. Other than
making that claim in his briefing, however, he provides no further detail or evidentiary
support of the claim. Nor does he provide nor attempt to provide any monetary value of
the non-contraband files stored on those devices. Indeed, he does not even purport to
provide the value of the nine electronic devices forfeited. Rather, citing Riley’s recognition
that cellphones for many Americans hold “the privacies of life,” 573 U.S. at 403 (cleaned
up), he claims that because the non-contraband contents of his electronic devices were
important to him, their forfeiture was excessive punishment.
It is now well-established that criminal forfeiture is punishment subject to the
Excessive Fines Clause of the Eighth Amendment. See United States v. Bajakajian, 524
U.S. 321, 334(1998); United States v. Jalaram, Inc.,599 F.3d 347, 351
(4th Cir. 2010).
And “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the
principle of proportionality: The amount of the forfeiture must bear some relationship to
the gravity of the offense that it is designed to punish.” Bajakajian, 524 U.S. at 334. “[I]f
it is grossly disproportional to the gravity of a defendant’s offense,” a criminal forfeiture
violates the Eighth Amendment. Id. (emphasis added).
To make the determination of whether a forfeiture is “grossly disproportional,” we
consider four factors: “(1) the amount of the forfeiture and its relationship to the authorized
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penalty; (2) the nature and extent of the criminal activity; (3) the relationship between the
charged crime and other crimes; and (4) the harm caused by the charged crime.” United
States v. Bennett, 986 F.3d 389, 399 (4th Cir. 2021); see also Jalaram, 599 F.3d at 355–
56. And the party challenging the constitutionality of the forfeiture under the Eighth
Amendment must carry the burden of demonstrating gross disproportionality by addressing
the relevant factors. See United States v. Ahmad, 213 F.3d 805, 816 (4th Cir. 2000).
In this case, Sanders has failed to satisfy, by any measure, any relevant factor. First,
he has produced no evidence to value the forfeited information or even to support his bald
assertion that the files he seeks — “personal photographs, personal and business records,
educational records, records of theater performances, contact information and emails” —
are unavailable anywhere else. This failure alone is particularly stark given that the
authorized penalty for his twelve counts of conviction was $250,000 per count, plus other
special assessments, for potential liability of over $3 million. See 18 U.S.C. § 3571(b).
Moreover, he has failed even to show or claim the value of the nine forfeited electronic
devices, which surely could not have exceeded even $25,000, as two of the devices were
thumb drives, two were Apple iPhones, and two were Apple iPads. While he has, to be
sure, asserted a genuine interest in having non-contraband files returned — or copied, as
he requests — he has provided no authority that would justify evaluating non-contraband
files on the basis of his subjective interest. Thus, Sanders has provided no evidence to
establish that the value of the forfeited data nears, much less exceeds, the authorized fines
for the conduct. See Jalaram, 599 F.3d at 356–57 (concluding that a $385,000 forfeiture
was not grossly disproportionate in light of the offense’s $350,000 maximum fine).
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Sanders also fails to address the second and fourth factors relating to the nature and
extent of his criminal activity and the harm that it caused — generally, the “gravity” of his
criminal conduct. But the record shows that Sanders was convicted of five counts of
production of child pornography, six counts of receipt of child pornography, and one count
of possession of child pornography. It also shows that for a period of over two years,
Sanders communicated with minor boys and had them record videos of themselves
engaged in sexualized conduct. His offenses occurred over a period of years and caused
substantial harm and indeed life-long trauma to several minors and their families. Courts
have consistently recognized that child pornography offenses of this type are serious
offenses that cause substantial harm. See Hull, 606 F.3d at 530; see also New York v.
Ferber, 458 U.S. 747, 758 n.9 (1982) (recognizing scientific literature showing that many
“sexually exploited children are unable to develop healthy affectionate relationships in later
life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults”).
At bottom, the nature and extent of Sanders’s criminal activity was extensive, and the harm
that his activity caused was serious.
Finally, the third factor — the relationship between the charged crime and other
crimes — also does not weigh in Sanders’s favor. Though the child pornography crimes
here were not necessarily “connected with other offenses,” Jalaram, 599 F.3d at 356,
Sanders clearly “fit[s] into the class of persons for whom the statute was principally
designed,” Bajakajian, 524 U.S. at 338. He has thus not been punished pursuant to a
prophylactic measure without having committed the underlying malum in se crime, a
circumstance about which the Bajakajian Court was concerned. 524 U.S. at 338.
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Under the plain error standard, Sanders was required to show at least (1) that there
was an error; (2) that the error was plain; and (3) that the error affected his substantial
rights. See Olano, 507 U.S. at 734. In this case, however, he has not carried his burden
of even showing error. The forfeiture of the nine electronic devices, with the data contained
on them at the time of forfeiture, was clearly authorized by statute and was not grossly
disproportional to the gravity of the offenses for which Sanders was convicted.
Accordingly, we reject his Eighth Amendment argument.
* * *
The judgment of the district court is
AFFIRMED.
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Reference
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