*1 301 adopted prior may that Defendant’s convictions approach” The “common-sense Supreme under ACCA. The Court majority essentially qualify shifts the bur clearly held that Defendant must have to De has proof from the Government den of However, necessarily ge- elements of the in the face of a silent admitted fendant. reasons, foregoing For the record, that we find the neric offense. Shepard requires mandatory fifteen-year respectfully sen I dissent. and its ACCA wholly rather inapplicable, tence to be the Gov
than seek to find facts allow through rea to meet its burden
ernment in the speculation inference and
sonable Evans- of actual evidence. See
absence 899, n. 22 Taylor, v. 19 F.3d 908
Smith (“While (4th Cir.) all inferences must be America, UNITED STATES prosecution, leaps in favor of the made Plaintiff-Appellee, denied, be.”), cert. 513 logic should not 298, 919, L.Ed.2d 211 v. 130 U.S. (1994); Aguila- v. see also United States MARTIN, Paulette Mur- Paulette a/k/a (9th Oca, 655 F.3d 935-37
Montes de phy, Akuffo, Paulette Pau- a/k/a a/k/a Cir.2011) emphasizing that (repeatedly Murphy, Auntie, la Defendant- a/k/a the defendant’s con “the factual basis for Appellant. by looking at the viction” is “determined Shepard America, documents” limited universe of United States of exercise caution in Plaintiff-Appellee, and that “a court must a conviction ‘neces determining what facts v. enough on.... It is not that sarily rested’ Bynum, Bo, Derrek Lewis a/k/a merely allege a certain fact an indictment Defendant-Appellant. fact; that the admit to a or necessary convicting fact must be America, United States of defendant.”). Plaintiff-Appellee, assertion, Contrary to the v. “divorced-from-reality, is not some law- Goodie, Learley Goodwin, Reed a/k/a school-professor-type hypothetical[ ] Ross, Lonnie Defendant- a/k/a goes no resemblance to what on.” bear[s] Appellant. p. (quoting Ante United States Cir.2010), (11th Rainer, 10-5301, 10-5304, Nos. 10-5306. — denied, -, rt. U.S. ce Appeals, United States Court of (2011)). L.Ed.2d 796 This is S.Ct. Fourth Circuit. a sentence of twen the difference between of fif ty-seven prison months and one 20, 2011. Argued: Sept. years prison. impose teen To sort 30, 2011. Decided: Nov. penalty, of criminal the Government sim possibility, ply must show more than the logic, solely
based on common sense and majority’s holding knowledge— yet, map personal ture? And under deuce such as that the "Sunrise-Sunset Restaurant” in Maui today, will be the law in this Circuit. building definitively or struc- located in *2 Montemarano, PA, Elkridge, D. Michael Martin; Maryland, Appellant Anthony *3 Martin, Martin, PC, Anthony D. D. Greenbelt, Maryland, Appellant for Good- win; Mitchell, Timothy Law S. Office of Mitchell, Greenbelt, Timothy Maryland, S. Rosenstein, Bynum. Appellant for Rod J. Attorney, United States Deborah A. John- ston, Attorney, Assistant United States Bonnie Greenberg, S. Assistant United Cassella, Attorney, States Stefan D. As- Attorney, sistant United States Office of Attorney, Baltimore, States United Breuer, Maryland; Lanny A. Assistant General, Andres, Attorney Greg D. Acting General, Deputy Attorney Assistant Dan- Goodman, iel Steven United States De- Justice, D.C., partment Washington, for Appellee. MOTZ, GREGORY,
Before and DUNCAN, Judges. Circuit Affirmed published opinion. Judge opinion, DUNCAN wrote the in which joined. Judge Judge MOTZ GREGORY opinion concurring part wrote an and dissenting in part.
OPINION
DUNCAN,
Judge:
Circuit
Martin,
juryA
convicted Paulette
Lear-
Goodwin,
ley
Bynum,
Derrek
and Lavon
(collectively “Appellants”)
Dobie
of various
drug
related offenses. As
of their
sentences,
Biddle,
Ap-
Robert
Na-
the district court ordered
ARGUED:
Whelen
Biddle, LLP, Baltimore, Mary-
to forfeit assets connected to their
pellants
thans &
land,
crimes
to 21
Appellants. Anthony
drug
pursuant
for
William
U.S.C.
853.1
Vitarelli,
Department
Appellants
of On
seek vacature of the
appeal,
United States
D.C.,
Justice,
district court’s orders of forfeiture.2 For
Washington,
Appellee.
Montemarano,
follow,
affirm.
BRIEF: Michael D.
the reasons
we
ON
$400,000
Appellants
challenges to the
over
in cur-
made identical
1. These assets included
separately filed
rency
by Appellants, a
criminal forfeiture orders in a
from accounts held
Martin,
appeal
owned
under Case No. 07-4059.
Mercedes automobile
appeal
appeal
representing drug pro-
difference between this
and the
dollars
several million
07-4059,
joined
Dobie
in 07-4059 is
ceeds.
made,
90-day
a claim is
clock begins to
I.
run.
expiration
Before the
of that period,
A.
government
must do one of three
large
drug
This case involves
traffick-
(1)
things:
complaint
“file a [civil]
for for-
supplied
ing operation
drugs through-
(2)
feiture,”
“obtain a criminal indictment
Columbia, Maryland,
out the District
an
containing
allegation
that the
May
Virginia.3
grand
On
and take
forfeiture[]
jury
Appellants
indicted
numerous
steps necessary
preserve
right
its
relating to their
charges
participation
*4
custody
maintain
property
pro-
the
as
operation.
drug trafficking
the
Authori-
applicable
vided in the
criminal forfeiture
Appellants
ties
on June
2004.
arrested
(3)
statute,”
property.”
“return the
to,
arrests,
Upon,
subsequent
983(a)(3)(B)
added).
§
(emphasis
U.S.C.
government
various
belong-
seized
assets
If
government
complete
fails to
one of
ing Appellants pursuant
to
to civil forfei-
these three steps
days
before the 90
ex-
ture warrants
issued under 18 U.S.C. pires, it
required
to “promptly release
§ 981
civil
proceed-
and initiated
forfeiture
the property.” Id.
ings.
After waiting several months for the
19, 2005,
January
grand jury
On
hand-
government
action,
to take
Martin filed a
superseding
ed down a fourth
indictment
motion with the district
“Prompt
court for
against Appellants
included criminal
Return of Property Pursuant
to Federal
against
forfeiture allegations
Appellants’
Rule of
41(g).”4
Criminal Procedure
Mar-
Thus,
by January
assets.
the gov-
tin asserted that
timely
she
filed
claim
pursuing
ernment was
both civil and crimi-
22, 2005,
February
govern-
and that the
nal
property.
forfeiture of the same
ment
complete any
failed to
of the three
challenged
Martin
the civil forfeiture of
983(a)(3)(B)
§
actions listed in
within 90
22, 2005,
her
February
by
assets on
filing
days.5 Martin
govern-
contended that the
a claim
Department
with the U.S.
of Cus-
ment’s
possession
continued
of her proper-
toms and Border Protection. The Civil
ty despite its failure to act violated
Act,
Asset Forfeiture Reform
18 U.S.C.
983(a)(3)(B).
§
(“CAFRA”),
§ 983
creates a process by
which a
challenge
motion,
claimant can
In response
the civil
gov-
Martin’s
forfeiture of assets in which she has an ernment obtained criminal seizure war-
provides
interest. CAFRA
that when such rants6 for Martin’s assets based on the
orders,
appeal
deadline,
allegations
forfeiture
ture
before the
it had
join
appeal.
whereas she does not so
in this
completed
step
"tak[ing]
steps
dispose
challenges
We
of all
to the criminal
necessary
preserve
right
its
to maintain
opinion.
forfeiture orders in this
custody
provided
ap-
in the
plicable criminal
forfeiture statute.” The
3.
thorough
For a more
treatment of the facts
government had
complaint
also failed to file a
surrounding
drug operation,
opin-
this
see the
property.
forfeiture or return the
ion in Case No. 07-4059 and United States v.
Johnson,
(4th Cir.2009).
handing down each individual no B. objected one to the district court’s omis- sion. began trial on June Appellants’ 31, 2006, jury Ap- convicted August
On 5, 2007, January January Between charges on various related to their pellants the court entered its drug trafficking opera- participation Appellants. government as to deliv- Subsequent Appellants’ tion. convic- ered its modified order for preliminary *5 tions, post-trial proceedings took forfeiture to January the district court on place. 19, 2007, and the district court entered the 14, 2007, day. order that On June 21, 2006, Beginning on November district court issued a final order of forfei- hearings, district court held two forfeiture judgments ture but did not amend the the connection taking regarding evidence include that order. Appellants between the crimes for which property were convicted and the for which later, years 15, April Almost three sought forfeiture. After government 2010, Appellants filed a motion in the dis- hearing on December the second prior trict court to vacate the criminal the district court stated: forfeiture orders and to return all forfeited property. Appellants argued that the dis- testimony
I have considered the
... as
trict court missed the deadline to finalize
of counsel
I
arguments
[and]
well as the
forfeiture as set forth in Federal Rule of
government’s prelimi-
conclude that the
32.2,
Procedure
Criminal
therefore
nary
fully supported
forfeiture order is
jurisdiction
lost
to enter the forfeiture or-
by the evidence at trial and ...
Appel-
ders. The district court denied
presented
prior
to me at the
evidence
lants’ motion and amended the
on forfeiture in this case.
proceeding
to include the final order of forfeiture.
530. The district court referred to
J.A.
appeal
This
followed.
gov-
proposed
order submitted
the parties
ernment and noted that
had
II.
agreed
change
to a minor
that order
concerning joint
liability.
appeal, Appellants challenge
and several
On
government
property.
then told the
the criminal forfeiture of their
district
you
individually argues
gov
Martin
lawyer,
prepare
will
modified
“[I]f
[joint
violation of the civil
pre-trial
order that addresses
and several
ernment’s
liability],
glad
I will be
to enter the or-
forfeiture statute rendered invalid its later
addition,
In
why
pro-
Appel-
....
I see no reason
not to
criminal forfeiture.7
der
property.
property
Martin
of
We have considered this
of the
for forfeiture.”
asserts
her
argument
reject
it.
finding
that a
that the district court erred
853(e)
protective order under
would not
argument,
of
Martin claims that
As
availability
have been sufficient to assure
property
possession
of the
unlawful
collectively argue
the district
criminal forfeiture —that
lants
she seeks. The
jurisdiction
illegal
property
without
to order the
seizure of
court was
does not immu-
of
property
property
criminal forfeiture
their
after
nize that
long
forfeiture as
sentencings
entry
judg-
government
and the
of
as the
can
their
sustain the forfei-
proceed-
In criminal forfeiture
ture claim with independent
ments.
evidence.
See, e.g.,
Pierre,
review the district court’s find-
ings,8 we
United States v.
484 F.3d
(1st
Cir.2007);
ings
fact for clear error and the district
see also
v.
INS
Lo-
interpretations
1032, 1039-40,
legal
pez-Mendoza,
court’s
de novo.
468 U.S.
(1984)
Morgan,
(noting
United States
S.Ct.
the defendant a criminal proceeding, the A. unlawful seizure property does not re- sult in the suppression property of that first consider argument We Martin’s Here, a forfeiture proceeding). Martin government’s pre-trial actions dispute does not pro- the evidence respect to her violated the duced government, independent statute, thereby civil forfeiture rendering the property, was sufficient to justify the the later criminal forfeiture of proper- reject forfeiture. We therefore ty argues invalid. Martin that the district challenge. Martin’s claim holding court erred both in that her *6 untimely holding was gov- B. attainment of criminal ernment’s seizure challenge mooted her warrants to its un- next Appellants’ We consider argument possession property. lawful of her As a that the district jurisdic- court was without remedy government’s illegal for the sei- tion to order the criminal forfeiture of zure, Martin seeks the vacature of the property their after sentencing and the subsequent criminal prop- entry forfeiture of her judgments.
erty.9 Criminal part forfeiture is of a de assuming,
Even
without deciding,
fendant’s sentence. Libretti v. United
States,
government
prop
29, 38-39,
seized Martin’s
516 U.S.
116 S.Ct.
erty illegally,
(1995).
we
grant
cannot
the reme
States,
555 U.S.
129 S.Ct.
172
government
damages pursuant
to the Fed-
(2009).
contrast,
L.Ed.2d
govern-
In
2680(c).
§
eral Tort Claims Act. See 28 U.S.C.
instance,
any,
ment’s error in this
if
"ar[ose]
unavailable, however,
remedy
Such a
is
as to
nonrecurring
negligence
and attenuated
Martin's,
property,
ultimately
like
that is
for-
[and]
thus far removed from the core con-
2680(c)(2).
§
feited.
Id. at
adopt
cerns that led [the Court] to
the [exclu-
sionary]
place.”
rule in the first
Id.
First,
analogous
Following
guid-
context.
government
in Rule 32.2.
forth
ance,
allegation
missing
in the
we conclude that
the dead-
include a forfeiture
must
deprive
in Rule 32.2 does not
a
the defendant. Fed.
line set
against
indictment
32.2(a).
conviction,
jurisdiction
After
district court
to enter orders
R.Crim.P.
long
a
be- of criminal forfeiture so
as the sen-
must establish
nexus
government
seeking tencing
prior
it is
court
clear
to sentenc-
for which
makes
tween
plans
that it
to order
preponder-
ing
and the crime
forfeiture.
32.2(b)(1)(A).10
Id. at
ance of the evidence.
—
States,
In Dolan v. United
U.S.
burden,
satisfies its
government
If the
-,
2533, 177
L.Ed.2d 108
order of
preliminary
district court enters
(2010), the Court examined a statute that
32.2(b)(2).
32.2,
it
Id.
as
forfeiture.
specifying
set forth a deadline without
Appellants’
at the time of
sentenc-
existed
consequence,
provided
analytical
an
that,
sentencing ...
ings,11 provided
“[a]t
There,
applicable
construct
here.
becomes final as to
the order of forfeiture
defendant,
the district
ordered the
part
be made a
the defendant and must
sentence,
pay
his
restitution to
in the judg-
the sentence and be included
the victim of his crime. Id. at 2537. The
32.2(b)(3) (2004
Pro.
ment.” Fed. R.Crim.
governing
provided,
statute
“the court
added).
version) (emphasis
shall set a date for the final determination
losses,
days
of the victim’s
not to
exceed
correctly note that
the dis-
Appellants
3664(d)(5).
sentencing.”
after
18 U.S.C.
trict court neither referenced forfeiture
It
undisputed
both that the defendant
nor
sentencing Appellants,
included final
was on notice that the district court would
judgments.
in their
In
orders of forfeiture
order restitution and that the district court
fact, the district court failed to enter the
missed the deadline to order restitution
until
order of forfeiture
after
preliminary
and failed to include an order of restitution
and did not enter a
entered
in the
judgment.
defendant’s
until
later.
final order of forfeiture
months
*7
at 2538.
S.Ct.
by missing
the dead-
Appellants argue
32.2,
in Rule
the district court lost
line set
categories
Dolan established three
jurisdiction
enter orders of forfeiture
in which to consider statute- and rule-
to include the
and to amend
depending
deadlines
on the dead
based
orders of forfeiture.
by purpose,
line’s
as evidenced
statute
32.2,
2004,
language
as it existed in
or rule’s
and context.12 Id. at
Although Rule
first,
“jurisdictional
court to finalize forfei- 2538-39. The
a
condi
required a district
tion,”
consequence:
at
and include them
has the strictest
“The
ture orders
‘jurisdictional’
pre
a
judgment,
expiration
in a final
did not set forth the
deadline
consequences
missing
permitting
taking
that would flow from
vents the court from
Court,
Supreme
the action to which the statute attached
that deadline. The
how-
ever,
recently
guidance
prohibition
in an
deadline. The
is absolute.
provided
has
preponderance
10. The
standard is set forth in
decision in Dolan around the issue of restitu-
law,
See,
Instead,
e.g., United
case
not the statute.
tion.
the Court in Dolan set forth
Smith,
1045,
(6th
States v.
1050-53
guidance
broad
for courts faced with these
1992).
Cir.
consequence
to determine the
circumstances
of missed deadlines. See
The the deadline is missed.” equitable that deadline for at court extend 130 S.Ct. 2538. type at 2538. This reasons.” Id. dead- The Dolan court aspects focused six unlikely line is to be inferred when a stat- of the deadline created the restitution specify consequence ute or rule fails to statute in concluding that it is a “time- (find- at noncompliance. for See id. First, deadline, related directive.” ing specified consequence that the lack of a “shall,” though even it contains the word
weighs against imposing a coercive sanc- does “not specify
consequence
a
for non-
tion).
jurisdictional
Examples of
condi-
(internal
compliance.” Id. at 2539
quota-
filing ap-
tions include the deadlines for
omitted). Second,
tions
the substantive
See,
Russell,
peals.
e.g., Bowles v.
551 purpose of the restitution statute is to aid
205, 209-10,
U.S.
S.Ct.
crime,
victims of
rather than provide some
(2007).
L.Ed.2d 96
protection
Third,
for defendants.
Id.
statute’s
primarily
deadline “is
designed
deadline,
category
second
a
help
victims of crime
prompt
secure
rule,”
“claims-processing
not limit
“do[es]
restitution
provide
rather
than to
defen-
jurisdiction,
court’s
regú
but rather
dants with certainty as to the amount of
timing
latelas] the
of motions or claims
Fourth,
their liability.” Id.
“depriving the
Dolan,
brought before the court.”
sentencing court of the power to order
S.Ct.
2538. No sanction
applied
restitution would harm those—the victims
missing
type
of deadline “[u]nless a
of crime—who likely bear no responsibility
party points out to the court that another
for the
being
deadline’s
missed and whom
litigant has missed such a deadline.” Id.
the statute also seeks to benefit.” Id. at
An example of a claims-processing rule is
Fifth,
“previously
Court had
the deadline for filing a motion for a new
interpreted similar
similarly.”
statutes
Id.
See,
trial in a criminal
e.g.,
case.
Eberhart
Finally,
restitution,
in the case of
“the
States,
v. United
546 U.S.
normally
can mitigate any harm
(2005)
curiam).
“time-related is the most forgiv Considering the facts before us ing. A time-related keeps pro directive through the lens of we conclude moving by cess creating a 32.2(b)(3), deadline “that is existed, as it then *8 legally enforceable but not deprive does a established a time-related directive.13 judge public or other First, official of the power 3664(d)(5), like the 2004 version of to take the action to which the deadline Rule 32.2(b)(3)—although used the word argues 13. The dissent that this case is distin- blank provision left to be filled awas on joint because, liability, and guishable change several a to which Dolan unlike in Do- 504, 518, 520, Appellants consented. J.A. lan, presents only missing case not of Likewise, assuming 532. the dissent is cor- deadline, statutory elapsing "but also the of rect that it was not error Rule under 35 for the timeframe may in which a court amend a the district court in Dolan to miss the statuto- Post, sentence” under Rule 35. at 311. We restitution, ry governing deadline it was simi- misreading believe this a Although of Dolan. larly not error under Rule 35 for the district the dissent is correct that all that was left for court here to make an almost identical mis- district court to do in Dolan was to fill in the take, missing governing the deadline forfei- restitution, amount of this “fill in the blank” Accordingly, ture. closely we believe Dolan is is no less an amendment of a sentence than analogous to these circumstances and thus Indeed, happened what compels in this case. here the our decision here. notes, Advisory change in consequence Committee specify not “must”—did Second, substance, the substantive the rule not one of but was noncompliance. clarify is to criminal forfeiture instead intended “to what the dis- purpose of but to provide protection required for defendants trict court to at sentenc- is do of the fruits their ...” ing. advisory criminals of 32.2 com- deprive Fed.R.Crim.P. (2009 amendment). crimes. and deter future illegal acts mittee’s This *9 added). 32.2(b)(4)(B) (emphasis sentencing As the the district court would record, 853(1) ("With respect appears 14. See 21 U.S.C. to 15. From the it the time be- section, stating unequivocally tween the district court property ordered forfeited under intended to enter—after a minor Attorney to General is authorized ... take change pre- was forfeiture order —which rights action to protect other of inno- —the government, copies sented to it persons jus- interest cent which is in the given Appellants beginning ...”). —and tice. sentencings approximately individual minutes. See J.A. 543. orders, majority enter forfeiture we refuse to va- heavily relies Dolan United — States, U.S. -, 2533, tardy cate the district court’s forfeiture (2010). L.Ed.2d 108 That case held that a orders. statutory deadline to order restitution deprive III. “does not power the court of the restitution,” order id. “where ... reasons, foregoing For the we affirm the the sentencing court made clear prior to criminal of Appellants’ forfeiture assets. the deadline’s expiration that it would or AFFIRMED (for restitution, der leaving open more days) only amount,” than 90 id. at GREGORY, Judge, concurring Circuit Dolan, however, does not stand for dissenting part: and contention that as long as Although I concur in Parts I II.A and the defendant has penalty notice that a Judge opinion rejecting appel- Duncan’s ordered, would be sentencing requested remedy suppression, lant’s I authority retains to impose penalty such compelled am to dissent from Parts II.B statutory after the relevant deadline. See and III. supra at 307 (“[Mjissing the deadline set in Rule deprive 32.2 does not a district case, Not a single published or unpub- jurisdiction court of to enter orders of lished, has today’s majority done what long forfeiture so as the sentenc does: it holds that even if a punishment of ing court prior makes clear to sentencing forfeiture is not discussed at forfeiture.”). it plans to order The judgment, ordered in a defendant can still Dolan decision is much narrower: the sen subject be to that punishment if she has tencing court authority retains to deter notice that punishment may such be or- mine the amount penalty of a after the dered. statutory relevant deadline when the sen It is undisputed the district court tencing court makes the defendant aware did not preliminary enter a order of forfei- at sentencing that the defendant will be ture before sentencing judgment. and to that penalty. majority Nor proper actions, were remedial such as takes Dolan out of its context gives and its amendment of pursuant the sentence holding narrow breadth in a qualitatively timely pursued under the Federal different area of the law. I respectfully Rules of Criminal Procedure. Because the dissent. appellants’ sentences pur- became final for There are two differences between the poses of Rule 32.2 before the district court present case and Dolan that I believe war- entered the preliminary order of forfei- rant vacatur of the district court’s orders. ture, I would hold that the district court First, narrowly Dolan was conscribed to did not authority have prelimi- enter the cover restitution cases in which the nary and final orders of forfeiture penalty amount of the the fact of the —not and judgments the amended and penalty Second, itself—was left blank. therefore the district court’s orders and restitution statutory amended should be vacated. schemes have purposes different In order to reach its conclusion that the structures. I deal with each in turn. appellants must forfeit their de- I.
spite no discussion about forfeiture at their
*10
sentencing hearings and no inclusion of
It is incontrovertible that forfeiture was
forfeiture in their written judgments,
the
in
included neither
the oral sentence nor in
at
Critically,
squarely
Rule 35 is
issue on
any
appel-
of the
judgment for
written
facts,
from Dolan
although
by
difference
it is not addressed
The factual
these
lants.
35(a)
sentence and
striking. Both Dolan’s
majority.
See Fed.R.Crim.P.
going
he was
state that
judgment
(2008) (“Within
order
days
sentencing,
after
restitution;
only the
it was
subject to
to be
may
the court
correct a sentence
re-
open.
that was left
penalty
amount
arithmetical, technical,
from
or oth-
sulted
knowing
not
between
The difference
error.”). That Rule 35 is so
er clear
Dolan,
in
punishment,
of a
as
amount
highlights the le-
squarely presented here
all,
at
punishment
to a
being
not
merely filling
between
in
gal difference
kind,
degree.
not
here,
is a difference
issuing pun-
blank” and
“amount-related
notes,
true,
majority
appel-
It
as the
Dolan district
ishment. Because the
that their sentences
lants were on notice
in an amount-
judge
merely filling
was
supra at
include forfeiture. See
would
blank,
apply:
Rule 35 did not
there
related
judg-
with
being
But
sentenced
307-08.
in the sentence.
was no error
correct
fun-
you is likewise
against
ment entered
Dolan,
only
its The Dolan Court of Rule 32.2 without more does violation covers the case which that its decision necessarily an order of forfeiture void (currently lacking sufficient judge “a who See, authority. e.g., for lack of United information) open, say, to leave wishes 1, 6, 14, Yeje-Cabrera, 430 F.3d States fine, condition of special of a or a amount (1st Cir.2005); United States v. Ben- release.” Id. at 2543. What’s supervised (3d Cir.2005). nett, Two give judges needed in such cases is remedy exist for a court avenues “essentially fill in an amount- flexibility to a defen- failure to include judgment in a that made related blank mentioned, already sentence. As dant’s applicable.” Id. that restitution was clear And Rule 36 path. is one such Rule 35 in the significant difference at 2544. “[Ajfter giving any no- provides another: just is that it wasn’t appellants’ cases may appropriate, the court tice it considers awaited, they of the forfeiture amount in a a clerical error time correct very fact of forfeiture it was the order, of the rec- or other judgment, sentencing hearing open left in the record ord, correct an error judgment. *11 312 violation,
arising oversight expira- Fed. tur. coupled omission.” That (2010). timeline, 36 tion of Rule 35’s R.Crim.P. determinative. “only Rule makes back- against 35 sense Here, amend the district court did its that trial ground change rule courts cannot judgment years four after its initial some at will.” sentences 130 at S.Ct. entry it error through when discovered its (Roberts, C.J., im- dissenting). 2548 An the appellants’ the motion to vacate orders posed subject is final sentence the forfeiture. states ex Rule 36 indeed exceptions Congress explicitly has time,” plicitly, any “at and the 2009 Addonizio, permitted. United States v. clear amendments to Rule 32.2 make 2235, 442 U.S. 99 60 S.Ct. may a district court correct its failure to (1979). L.Ed.2d 805 Before Rule 35 was the judg include forfeiture order “trial adopted, courts had no ... authori- “at any through ment time” the use of modify ty” imposed at sentences. Id. 32.2(b)(4)(B) Rule 36. See Fed.R.Crim.P. 16, 99 today’s major- 189 n. S.Ct. 2235. Yet (2010). But far in advance of amend ity read Rule say would 35 to that trial judgment, seven-day ment window authority courts have to amend sentences closed, to amend the oral had sentences any at time—the clear textual limit sev- appellants’ and the had become sentences days notwithstanding en despite By modifying final. its four Supreme Court’s clear command that Rule through 36, years sentencing after Rule “jurisdictional limit may 35’s time sweep district court attempts Rule 189, not be extended.” Id. at rug. 35 under the The fact that the court judgment years modified some four later Rule any telling via 36’s “at time” allowance can It is that the majority does not trump seven-day Rule precedent 35’s window to cite to con the forfeiture sentencing. correct “clear error” in holding. text for its In all other cases on Rule 35 necessary deadlines, would never be if we so missed Rule 32.2 even in the broadly read Rule power. 36’s corrective egregious scenarios, most factual there is To allow such backdoor routes would at cast least a discussion at Rule 35 out of the Federal Rules Crimi in which hearing the court confirms undermine nal Procedure and the finality the will subject defendant be to forfeiture. See, of criminal sentences. Grasso, See United States e.g., United States v. 376 Fed. Pease, (11th 809, Cir.2003) (3rd 816 Appx. Cir.2010); 167 n. 1 Brief of (“Rule Ereme, 36 can be used to correct Appellee ‘clerical’ at United States v. errors; used, here, (4th it Cir.2009) (No. cannot be Fed.Appx. 08- make a 5094), (defense substantive alteration to a crim WL 958911 at *19 sentence.”) inal (citing acknowledged United States v. at sentencing that de “[t]he (11th Whittington, 918 F.2d Cir. already fendant has been the of a 1990); Werber, United $367,500, States v. 51 F.3d forfeiture order for which will (2d Cir.1995)) (“Rule 342, 347 bankrupt 36 is not a indeed if per it’s mitted”). vehicle for the vindication of court’s unexpressed sentencing expectations, or Furthermore, the changes wrought for the correction of made errors the 2009 amendments to the Federal Rules itself.”) (internal quotation marks of Criminal Procedure do not support the omitted). position, contests, as it su- see 309;
It is therefore not the violation of pra support amendments 32.2’s compels command alone that vaca- present view that the beyond facts are *12 states, means that the court mention the amended Rule “The must pale. The orally include the forfeiture when when court must the sentence is an- announcing the sentence or must orally Cassella, nounced.” Stefan D. Asset For- that the defendant knows ensure otherwise feiture Law In The United States 600 sentencing.” Fed. the forfeiture at (2007). 32.2(b)(4)(B) (2010) (emphasis R.Crim.P. A in finality defendant’s interest the added). nothing is in the record There greater his sentence is in cases in which sentencing that demonstrates the no indication in there is the sentence or that the defendants knew of court ensured judgment the that the defendant is say not forfeiture. The Rule does to a certain sanction than cases like Dolan previous hearings notice from suffices. in the sentencing which court and the Furthermore, rule, the amended relied judgment both state that the defendant is court, upon by Fed.Appx. Grasso subject to a certain sanction in an amount 168, highlights important factual at to be determined later. Rule 35’s time case present difference between the limits, if they apply even don’t to the “fill- cases, Ereme. In the latter Grasso and ing in the blanks” of a restitution order at hearing, forfeiture was discussed included in the in judg- sentence and demonstrating knowledge the defendant’s ment, surely must in force apply to the going imposed. was to be that forfeiture simple Contrary fact of forfeiture. to the certainly have been written The Rule could view, Dolan dissent’s a defendant’s inter- that a so that it would be sufficient defen- finality est in the of his sentence was not penalty dant is on notice of a of forfeiture. squarely in that it presented case as however, It, was not so written. here. only factually case identical to this The reported one is a district court case II. King,
this
See
Circuit.
United States
(D.S.C.2005).
F.Supp.2d 509
Despite
reliance on Do-
King
authority
court found it had no
factors,
policy
many
lan ’s
of those factors
preliminary
enter a
order of forfeiture af-
actually
in
have little relevance
the forfei-
sentencing
ter
when forfeiture had not
they
in
appellants
ture context or
favor the
been raised at
or entered
Even if I
this case.
were to conclude that
(The
judgment.
court went further to con-
Dolan’s
framework covered the instant
clude that Rule 36 cannot be used to sub-
despite the fact that
isn’t a “fill in
case
stantively alter a
sentence.
defendant’s
Id.
case, I
the blank”
would hold
the six
512;
Part
I.B. (discussing
at
see infra
policy and statutory-purpose
consider-
36).) Crucially,
govern-
“the
Rules 35 and
compel
ations of Dolan
vacatur of the for-
regarding
ment
...
raised no issue
forfei-
judgments.
feiture orders and amended
sentencing.”
ture at
Id.
512-13. The
First,
heavily
the Dolan Court relied
it
that forfeiture
record below makes
clear
importance
compensation
of full
of vic-
sentencing,
not mentioned at
nor
tims in restitution cases.
(Martin); 788-89 (Bynum); J.A. J.A. 688
(Goodwin). had an also government the court’s mistake to correct
opportunity § appeal, use of an 18 U.S.C.
through Pease, 331 F.3d at it chose not to. See
but not use Rule 36 (government could 811-12 IDEARC, In the Matter of correcting a sen- judgment to amend INCORPORATED, forfeiture when that did not mention tence Debtor. under appeal not use government did 3742). attorney To insist a defense Equity Committee, Spencer ad hoc is not as object when a sentence should Appellant, principle expected violates high as she adver- advocacy required our of zealous Idearc, Incorporated, Appellee. system. sarial No. 10-10858. whole, policy Taken as a determinative structural considerations Appeals, United States Court import in the have little Dolan either Fifth Circuit. actually support the context or forfeiture Nov. con- if I were to appellants’ case. Even a Dolan present these facts clude that alone, I Rule 32.2 respect
issue with between
would find the differences com- and restitution schemes court’s or- of the district
mand vacatur
ders. notes Cf. Ben-Hur, States United emphasizes purpose clarification that Cir.1994) (7th (“[T]he purpose behind a coercive of deadline is not create 853 not forfeiture under section sanction, that but to ensure a defendant is conduct, just but also to illegal to sanction sentence, notice aspects on as to all of his pow dealers of their economic strip drug including forfeiture. er.”). Third, that the there is no indication colleague’s comprehensive Our dis set in Rule 32.2 is purpose of the deadline notwithstanding, dispute sent there is no certainty as to provide defendants Appellants fully that were of both aware Fourth, liability. of their be the amount and, beyond the pending forfeiture itself may go from forfeiture proceeds cause Dolan, even facts of the exact amount. crime,14 preventing forfeiture victims Notably, Appellants not— themselves do on the failure to meet Rule 32.2 based they and argue indeed could those like not— would often harm who deadline were caught off-guard. The district court ly responsibility no for the deadline’s bear comprehensive hearings held multiple, the statute also being missed whom forfeiture, liability in which both the fact of Fifth, benefit. as demonstrated seeks to and the amount were See determined. Dolan, previously the Court has inter by 364-461, J.A. 480-532. court The district preted similarly. Finally, similar statutes made clear at the end the final forfei mitigated could have harm Appellants hearing prior ture mere minutes15 might the missed deadline have —a sentencing Appellants it intended to respective their objecting caused at —that enter the lack Appellants forfeiture order.’ finality to the as sentencings lack of to the surprise further the fact evidenced orders. at forfeiture See S.Ct. they challenge did not the forfeiture failed They to do so. years until three the district almost after relevant of the current language the final entered order of forfeiture. supports Rule 32.2 further our conclusion jurisdictional Accordingly, this deadline is not a because the Rule 32.2 that, deadline, existed, provides per- It now it then “[t]he condition. as is most suasively forfeiture court must include the when understood a time-related orally announcing jurisdictional directive than the sentence must rather condition, ensure because were Appellants otherwise that the knows sentencing.” indisputably at on notice the time of