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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 25-CF-0563
NICOLAS DELGADO, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2020-FD3-005782)
(Carmen G. McLean, Judge)
(Submitted June 2, 2026 Decided September 17, 2026)
Timothy Cone was on the brief for appellant.
Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb and Nicholas G. Miranda, Assistant United States Attorneys, were on the brief for appellee.
Before EASTERLY, DEAHL, and SHANKER, Associate Judges.
SHANKER, Associate Judge: After a jury convicted appellant Nicolas Delgado
of first-degree theft and threatening to injure or kidnap a person, the trial court, in
addition to sentencing him to a period of incarceration and supervised release,
imposed assessments of $1,000 for each count pursuant to the Victims of Violent
Crime Compensation Act (VVCCA). D.C. Code §§ 4-515 & -516. On appeal, Mr.
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Delgado argues that the assessments violate the Eighth Amendment to the United
States Constitution because they are excessive fines. We assume without deciding
that VVCCA assessments are punitive for purposes of the Eighth Amendment but
conclude that the assessments imposed in this case were not excessive. We therefore
affirm.
I. Background
On a July morning in 2020, Mr. Delgado was at the home of his romantic
partner, C.P. The pair had been seeing each other for about a year and a half, and
Mr. Delgado had moved into C.P.’s condominium. While preparing for their day,
the couple started arguing, with Mr. Delgado accusing C.P. of cheating on him.
Although C.P. denied his accusations, Mr. Delgado grew angry and began to
physically and verbally abuse C.P. He grabbed C.P. and dragged her to the bathroom,
where he forced her to sit on the toilet while he “chopp[ed]” off her hair. Mr.
Delgado then “grabbed” designer handbags that C.P. kept in her closet and several
pieces of her valuable jewelry and “stuffed” them in “several gym bags.” Mr.
Delgado instructed C.P. to head to her car. Before the two left the condo, Mr.
Delgado told C.P. that he would kill her and her family if she reported the incident
to the police.
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After driving to an automatic teller machine and forcing C.P. to withdraw
hundreds of dollars, Mr. Delgado took the money and drove C.P. back to her
residence. When they arrived, he reminded C.P. not to call the police and reiterated
his threat that he would “come for” her if she reported him. He then left in C.P.’s
car, with her handbags and jewelry still in his possession. C.P. reported the incident
to law enforcement about a week later.
A grand jury indicted Mr. Delgado on eleven counts related to the incident,
including first-degree theft, in violation of D.C. Code §§ 22-3211 and -3212(a), and
threatening to injure or kidnap a person, in violation of D.C. Code § 22-1810. A jury
convicted Mr. Delgado of only those two counts. The trial court sentenced Mr.
Delgado to concurrent terms of twenty-eight months of imprisonment to be followed
by three years of supervised release and ordered him to pay $3,638.60 in restitution
in connection with C.P.’s stolen possessions. The court also imposed on Mr. Delgado
assessments of $1,000 for each conviction to be paid to the Crime Victims
Compensation Fund pursuant to the VVCCA. D.C. Code §§ 4-515 & -516. Mr.
Delgado did not object to the VVCCA assessments at sentencing. He timely
appealed.
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II. Analysis
Mr. Delgado argues that the VVCCA assessments imposed by the trial court
violate the Eighth Amendment’s Excessive Fines Clause. In his view, the VVCCA
assessments satisfy the two-prong inquiry the Supreme Court has established for
determining whether a forfeiture violates the Excessive Fines Clause: (1) the
assessments are at least partially punitive in nature, Austin v. United States, 509 U.S.
602, 610 & n.6 (1993) (explaining that the question that must be resolved when
deciding whether the Eighth Amendment’s Excessive Fines Clause applies is
“whether punishment is being imposed”), and (2) the assessments are “grossly
disproportional to the gravity” of his offenses, United States v. Bajakajian, 524 U.S.
321, 334 (1998) (holding that “a punitive forfeiture violates the Excessive Fines
Clause if it is grossly disproportional to the gravity of a defendant’s offense”). The
government disagrees on both fronts and also contends that Mr. Delgado failed to
preserve his argument in the trial court and cannot satisfy the plain-error standard of
review.
We decline to address the issue of forfeiture and instead assume without
deciding that Mr. Delgado preserved his constitutional challenge to his sentence. We
also need not decide whether VVCCA assessments are punitive for purposes of the
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Eighth Amendment. 1 Because we conclude that the assessments here were not
excessive, we affirm on that basis.
A. Legal Framework and Standard of Review
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII. As mentioned, when addressing whether the Excessive Fines
Clause applies, “two fundamental principles” shape our analysis. One 1995 Toyota
Pick-Up Truck v. District of Columbia (1995 Toyota), 718 A.2d 558, 560 (D.C.
1998).
“First, the limitation on excessive fines is meant to curb the government’s
power to extract payments, whether in cash or in kind, as punishment for some
offense.” Id. (emphasis in original) (citation modified). “Therefore, whether or not
a government-initiated forfeiture of property is a ‘fine’ for purposes of the Excessive
1
Our decisions in Tornero v. United States, 335 A.3d 104 (D.C. 2025), and Lopez-Ramirez v. United States, 171 A.3d 169 (D.C. 2017), that VVCCA assessments are not “fines” as a statutory matter are not controlling on the constitutional question whether such assessments are punitive. See Austin, 509 U.S. at 610-11 (noting that how a sanction is characterized does not dictate whether, as a constitutional matter, it at least partially serves punitive purposes). Cf. Jenkins v. United States, 80 A.3d 978, 1003 (D.C. 2013) (recognizing the principle that a statutorily-compliant sentence does not shield that sentence from constitutional scrutiny).
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Fines Clause depends not on its outward characterization as either civil or criminal,
but rather on whether it is a form of punishment.” Id. (citing Austin, 509 U.S. at 610).
“If there is an element of punishment in the forfeiture, it comes within the purview
of the Excessive Fines Clause notwithstanding the fact that it may also serve
remedial purposes.” Id.
The second “controlling principle relates to the severity of a fine allowed by
the Eighth Amendment.” Id. at 561. “Once it is established that a forfeiture is a fine
within the meaning of the Eighth Amendment, a gross disproportionality test must
be applied to determine constitutional excessiveness . . . .” Id. That test, as
established by the Supreme Court, requires that “[t]he 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. Thus, “a punitive forfeiture violates the Excessive Fines
Clause if it is grossly disproportional to the gravity of a defendant’s offense.” Id.
The Supreme Court adopted the “gross disproportionality” standard based on
the principles that “judgments about the appropriate punishment for an offense
belong in the first instance to the legislature” and that “any judicial determination
regarding the gravity of a particular criminal offense will be inherently imprecise.”
Id. at 336. Although the Court did not establish a specific test for analyzing whether
a particular fine is “grossly disproportional,” several guideposts can be distilled from
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Bajakajian. These include the “essence” or nature of the defendant’s crime and its
relation to “other illegal activities”; whether the defendant “fit[s] into the class of
persons for whom the statute [under which he was punished] was principally
designed”; the “maximum” sentence and fine that “could have been imposed” and
how they reflect on the defendant’s culpability; and the “harm” caused by the
defendant’s conduct. See id. at 337-39; 1995 Toyota, 718 A.2d at 565-66; cf.
Pimentel v. City of Los Angeles, 115 F.4th 1062, 1067-69 (9th Cir. 2024) (employing
similar factors for evaluating whether a forfeiture was “grossly disproportional to
the gravity of the defendant’s offense”); United States v. Viloski, 814 F.3d 104,
113-14 (2d Cir. 2016) (same).
We review the proportionality determination of the trial court de novo.
Bajakajian, 524 U.S. at 336-37 & n.10. 2
2
Mr. Delgado did not object to the VVCCA assessments in the trial court. In Tornero, where we addressed a statutory challenge to VVCCA assessments, the appellant likewise had not challenged the legality of the assessments in the trial court, but we reviewed the appellant’s claims de novo on the ground (with which the government agreed) that an “illegal sentence . . . may be corrected at any time.” 335 A.3d at 107. Rather than wade into this thicket, we assume without deciding that Mr. Delgado can raise his constitutional challenge for the first time on appeal because, for the reasons set forth below, we conclude that his argument fails under any standard of review.
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B. Discussion
As observed above, “a punitive forfeiture violates the Excessive Fines Clause
if it is grossly disproportional to the gravity of a defendant’s offense.” Bajakajian,
524 U.S. at 334. We have little difficulty concluding that the $1,000 assessments the
trial court imposed pass constitutional muster. Considering the “gravity” of Mr.
Delgado’s offenses, the assessments are not “grossly disproportional.” Id. at 337.
With Bajakajian as our guide, we first examine the “essence” or nature of the
defendant’s crime and its relation to “other illegal activities.” Id. Mr. Delgado’s
crimes were not mere “reporting offense[s],” id., or “minor crime[s],” 1995 Toyota,
718 A.2d at 565, but more serious violations, which supports the constitutionality of
the trial court’s VVCCA assessments. See Solem v. Helm, 463 U.S. 277, 292-93
(1983) (“[N]onviolent crimes are less serious than crimes marked by violence or the
threat of violence.”). Here, Mr. Delgado’s conviction under the felony threats statute,
D.C. Code § 22-1810, required the jury to find beyond a reasonable doubt that he
acted “with the purpose to threaten” C.P. and her family’s lives or “with the
knowledge that his words would be perceived as a threat.” Carrell v. United States,
165 A.3d 314, 324 (D.C. 2017) (en banc). In other words, the statute required the
government to show that Mr. Delgado at least acted with the knowledge that his
conduct would sow fear and intimidate C.P. See id.; Moore v. United States, 342
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A.3d 1222, 1232 (D.C. 2025) (en banc) (discussing the harmful effect criminal
threats have on society, including by “sowing fear and intimidating others into
acquiescing to demands”). Regarding his first-degree theft conviction, the jury
needed to find beyond a reasonable doubt that Mr. Delgado “wrongfully obtain[ed]
or use[d] the property of another” valued at $1,000 or more with the intent to either
“deprive the other of a right to the property or a benefit of the property” or
“appropriate the property to his or her own use or to the use of a third person.” D.C.
Code §§ 22-3211 & -3212.
We also have little doubt that Mr. Delgado “fit[s] into the class of persons for
whom the statutes [under which he was punished] w[ere] principally designed.” See
id. at 338; 1995 Toyota, 718 A.2d at 566. Indeed, Mr. Delgado’s unsanctioned taking
of C.P.’s handbags and jewelry, which were valued at well over $1,000, falls
squarely within the conduct that the first-degree theft statutes proscribe. See D.C.
Code §§ 22-3211 & -3212. And Mr. Delgado’s sinister warnings about what he
would do to C.P. and her family “sowed exactly the harm at the core of the
prohibition against criminal threats—[he] has caused the target of [his] threat[s] to
fear for [her] life.” Moore, 343 A.3d at 1234; see D.C. Code § 22-1810.
The proportionality of the trial court’s VVCCA assessments is further
supported by the maximum penalties available under the statutes that Mr. Delgado
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violated. See Bajakajian, 524 U.S. at 338-39; 1995 Toyota, 718 A.2d at 565-66.
Section 22-1810, criminalizing felony threats, dictates that violators “shall be fined,”
imprisoned for up to twenty years, “or both.” And Section 22-3212, the first-degree
theft statute, requires offenders to be “be fined,” incarcerated for up to ten years, “or
both.” Although Mr. Delgado was sentenced to concurrent terms of only twentyeight months of incarceration for both offenses—well shy of ten, let alone twenty,
years—this was the “maximum” carceral sentence recommended by D.C.’s
Voluntary Sentencing Guidelines for someone with Mr. Delgado’s criminal history
score. See D.C. Voluntary Sentencing Guidelines Manual App. A (listing sentencing
ranges); Bajakajian, 524 U.S. at 338-39 & n.14 (noting that the maximum statutory
penalties “are certainly relevant evidence” of “an offense’s gravity,” but looking first
to the federal sentencing guidelines); 1995 Toyota, 718 A.2d at 565 n.16 (noting that
“it suffices to consider the actual penalty range applicable to the particular defendant
as a way to estimate his subjective culpability”).
In addition to his top-of-the-guidelines term of imprisonment, the maximum
fines that “could have been imposed” further show Mr. Delgado’s high “level of
culpability.” See Bajakajian, 524 U.S. at 338-39. The statutory maximum fine for
violating Section 22-1810 is $50,000, which suggests that the D.C. Council did not
view this offense as trivial. D.C. Code §§ 22-1810 & -3571.01(b)(9). To frame this
point slightly differently, the maximum fine available under the felony threats statute
11
was twenty-five times higher than the $2,000 in VVCCA assessments that the trial
court imposed—and fifty times higher than the $1,000 assessment for his felony
threats conviction on its own. D.C. Code §§ 22-1810 & -3571.01(b)(9). The same
can be said for Mr. Delgado’s conviction for first-degree theft, which carries a
maximum possible fine of $25,000—twelve-and-a-half times higher than the
combined assessments imposed by the trial court. D.C. Code §§ 22-3212
& -3571.01(b)(7). 3 On their face, these numbers reveal a significant delta in
monetary repercussions between the assessments imposed and the sanctions to
which Mr. Delgado could have been subjected. See United States v. Suarez, 966 F.3d
376, 387 (5th Cir. 2020) (“[B]ecause the forfeiture is less than double the Guidelines
maximum of $30,000, the amount of the forfeiture militates against a finding that it
is grossly disproportional.” (citation modified)); Tillman v. Lebanon Cnty. Corr.
Facility, 221 F.3d 410, 420-21 (3d Cir. 2000) (“It can hardly be said that a sum that
is less than one-twentieth the legally permissible fine is grossly disproportional to
the gravity of a defendant’s offense.” (citation modified)). They also pale in
comparison to, for example, the forfeiture in 1995 Toyota, where the claimant was
ordered to forfeit his vehicle “valued at $15,500,” which was “fifty times” higher
3
Likewise, the $2,000 VVCCA assessments imposed on Mr. Delgado
comprise only about fifty-five percent of the $3,638.60 the court ordered him to pay in restitution.
12
than the maximum fine available and “one hundred times the fine actually imposed.”
718 A.2d at 565-66; see also Bajakajian, 524 U.S. at 339-40 (concluding that the
seventy-to-one ratio between the forfeiture imposed and the maximum available fine
was “grossly disproportional to the gravity of [the] offense”).
Moreover, the imposed amount of $1,000 for each felony conviction was
within the range prescribed by the D.C. Council for VVCCA assessments and well
short of the maximum amount allowable. D.C. Code § 4-516 (requiring that “an
assessment of between $100 and $5,000 for each felony offense . . . be imposed”).
This bolsters our conclusion that the VVCCA assessments were constitutional
because “judgments about the appropriate punishment for an offense belong in the
first instance to the legislature.” Bajakajian, 524 U.S. at 336; see United States v.
Varrone, 554 F.3d 327, 332 (2d Cir. 2009) (“[I]f the value of forfeited property is
within the range of fines prescribed by Congress, a strong presumption arises that
the forfeiture is constitutional.” (quoting United States v. 817 N.E. 29th Drive,
Wilton Manors, Fla., 175 F.3d 1304, 1309 (11th Cir. 1999))); United States v.
Sherman, 262 F.3d 784, 795 (8th Cir. 2001) (“If the value of the property forfeited
is within or near the permissible range of fines using the sentencing guidelines, the
forfeiture almost certainly is not excessive.” (citation modified)). Thus, all told, Mr.
Delgado’s culpability, as reflected by the maximum penalties that “could have been
imposed,” weighs in favor of the VVCCA assessments’ constitutionality. See
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Bajakajian, 524 U.S. at 337-39. Cf. id. at 337-39 & n.14 (concluding that Mr.
Bajakajian had a “minimal level of culpability” based on the type of his offense and
the minimal penalties available to impose on someone with his criminal history);
1995 Toyota, 718 A.2d at 565-66 (reaching a similar conclusion based on claimant’s
minimal criminal exposure and “minor” nature of his crime).
The harm caused by Mr. Delgado also supports the conclusion that the
assessments were not “grossly disproportional.” See Bajakajian, 524 U.S. at 337.
While Mr. Delgado tries to frame the harm that he caused exclusively in monetary
terms—as represented by the $3,638.60 in restitution ordered by the court—he fails
to account for the less tangible but highly relevant nonmonetary harm that he
inflicted on C.P. See Pimentel, 115 F.4th at 1068 (noting that courts “generally
consider both monetary and nonmonetary harms” in a Bajakajian analysis). C.P.
testified that she feared for her life and the lives of her family on the day that Mr.
Delgado stole her possessions and threatened her. She explained that Mr. Delgado’s
threats were the reason she did not attempt to escape or seek assistance from the
various people she encountered after leaving the condo with him. And she stated
that, because she “thought he was going to kill me and my family,” she “was trying
not to get him to do it, so [she] was doing whatever he asked [her] to do.” C.P. also
revealed that she stayed away from her home for about three weeks after the incident
because she “thought someone was going to come to [her] house and hurt [her].” In
14
her victim impact statement submitted for Mr. Delgado’s sentencing, C.P. disclosed
that, because of Mr. Delgado’s actions, she no longer trusts “anyone,” “fear[s] for
[her] life every day,” and is being treated for post-traumatic stress disorder and
anxiety. She stated that she continues to “look[ ] around everywhere for him” and
that she and her family “have been very exposed by this whole process.” In short,
Mr. Delgado “caused [C.P.] . . . to fear for [her] life,” the exact “harm at the core of
the prohibition against criminal threats.” Moore, 342 A.3d at 1234. Accordingly, the
harm caused by Mr. Delgado further strengthens our determination that the VVCCA
assessments imposed by the trial court did not violate the Excessive Fines Clause.
See Bajakajian, 524 U.S. at 337.
All told, the total assessments imposed were significantly less than both the
restitution Mr. Delgado owes and the maximum fines available, and there is a clear
correlation between the amounts imposed and the harms suffered by C.P. Cf.
Bajakajian, 524 U.S. at 339-40 (holding that the forfeiture imposed bore “no
articulable correlation to any injury suffered by the Government”). Therefore,
comparing the gravity of Mr. Delgado’s offenses with the $2,000 in VVCCA
assessments imposed by the trial court, we hold that the assessments are not “grossly
disproportional” and, as a result, are constitutional. See id. 337.
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court.
So ordered.