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United States v. 360 Frosty Creek Road

*fn* submitted: October 13, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
360 FROSTY CREEK ROAD, TONASKET, WASHINGTON, ET AL., DEFENDANTS, AND ANTHONY F. ZAK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CV-91-00357. Wm. Fremming Nielsen, District Judge, Presiding

Before: Beezer, Kozinski, and Kleinfeld, Circuit Judges.

MEMORANDUM

Anthony F. Zak appeals pro se the district court's denial of his motion to reconsider the denial of his Fed. R. Civ. P. 60(b) motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the denial of a motion to reconsider for an abuse of discretion, see Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989), and we will reverse "only upon a clear showing of [an] abuse of discretion." Id. Zak's property was forfeited to the United States pursuant to 21 U.S.C. § 881(a)(7), which provides that the whole of any lot or tract of land used, in any manner, to commit a violation of this subchapter punishable by more than one year's imprisonment is forfeited to the United States. The forfeiture decree was entered pursuant to a stipulated agreement negotiated between the United States and Zak's counsel.

A review of the record indicates that, after a jury trial, Zak was convicted under 21 U.S.C. § 841(b)(1), which imposes a mandatory minimum sentence of five years. Despite the district court's decision to depart from the United States Sentencing Guidelines and to sentence Zak to probation because of Zak's age, ill health, and exemplary life. Zak's crime was punishable by more than five years imprisonment. Because the property used in the commission of this crime was properly forfeited to the United States, the district court did not abuse its discretion in denying reconsideration of the previously entered orders denying a stay of the stipulated forfeiture decree.

AFFIRMED.

Disposition

AFFIRME ...


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