Full Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. 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. 2 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. 3 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. 4 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 5 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). 6 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 7 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. 8 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 9 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 10 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 twenty- eight 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 13 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. 15 III. Conclusion For the foregoing reasons, we affirm the judgment of the Superior Court. So ordered.