UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4131
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CONNELL LEE BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-58)
Argued: October 29, 2004 Decided: January 4, 2005
Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
James E. Todd, Jr., Research and Writing Specialist, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Connell Lee Berry appeals a $10,000 forfeiture requirement
imposed on him as part of his sentence for three drug offenses. We
affirm.
I.
Berry was charged with conspiring to distribute and to possess
with the intent to distribute more than 50 grams of cocaine base,
see 21 U.S.C.A. § 846 (West 1999) (Count One); distributing more
than 50 grams of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West
1999) (Count Two); and distributing more than five grams of cocaine
base, see id. (Count Three). The indictment also contained a
notice alleging the Government was entitled to forfeiture of at
least $10,000 of Berry’s assets. See Fed. R. Crim. P. 32.2(a).
Berry pled guilty to all three counts without a plea
agreement. The Government then proffered that Berry’s offenses
included the sale of 56.4 grams of cocaine base for $1,800 and the
sale of 12.9 grams of cocaine base for $475. Later the same day,
the district court entered an order documenting the forfeiture of
$10,000 to the United States. The district court clerk
subsequently entered a judgment against Berry for the $10,000
forfeiture.
The district court sentenced Berry to 120-month terms of
imprisonment on Counts One and Two and a 108-month term on Count
2
Three, all to be served concurrently. The court also imposed
concurrent five-year terms of supervised release and ordered Berry
to pay a $5,000 fine. Although the fine amount was below the
$15,000-to-$10,000,000 range prescribed by the guidelines, see
United States Sentencing Guidelines Manual § 5E1.2(c) (2002);
21 U.S.C.A. § 841(b)(1)(A), (B) (West 1999 & Supp. 2004), the court
found that Berry would not be able to satisfy a fine in the
guideline range. The district court also ordered that as a special
condition of Berry’s supervised release, he would forfeit the
property specified in the forfeiture order.
II.
Berry contends that the district court erred in ordering him
to forfeit $10,000 in the absence of evidence linking assets in
that amount to his drug trafficking crimes. He concedes that he
never objected to the order and thus that we should conduct plain
error review.1
Our authority to correct forfeited errors is granted by
Federal Rule of Criminal Procedure 52(b), which provides that “[a]
plain error that affects substantial rights may be considered even
1
The Government maintains that Berry waived review of the
forfeiture order by virtue of his guilty plea and his failure to
contest the Government’s forfeiture allegation. The Government
therefore contends that we should not review the forfeiture order
even for plain error. In light of our conclusion that Berry cannot
satisfy the plain error requirements, we do not address this waiver
argument.
3
though it was not brought to the court’s attention.” In order to
establish our authority to notice an error not preserved by timely
objection, Berry must demonstrate that an error occurred, that the
error was plain, and that the error affected his substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993).
Even if Berry can satisfy these requirements, correction of the
error remains within our discretion, which we “should not exercise
... unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks & alteration omitted).
Here, even if we assume that ordering the forfeiture
constituted plain error, Berry cannot demonstrate that the error
affected his substantial rights, i.e., that it was prejudicial.
See id. at 734; United States v. Hastings, 134 F.3d 235, 240 (4th
Cir. 1998) (explaining that an error is prejudicial when it
“actually affected the outcome of the proceedings”). That is so
because the amount of the fine imposed was based on Berry’s ability
to pay, and the fine and the forfeiture were part of the single,
integrated sentence. Berry has failed to show that any reduction
in the amount of the forfeiture would not simply have resulted in
a commensurate increase in the amount of the fine imposed.2
2
We note that even were we to hold that Berry demonstrated
plain error affecting his substantial rights, we would decline to
exercise our discretion to notice the error under the specific
facts of this case. Berry was aware of the forfeiture order and
was the person best positioned to know whether it was based in
4
III.
In sum, because Berry has failed to show that he was
prejudiced by the issuance of the forfeiture order he challenges,
we affirm.
AFFIRMED
fact, yet he did not challenge it when given the opportunity; the
forfeiture did not violate the Excessive Fines Clause of the Eighth
Amendment; and, Berry will be able, via 28 U.S.C.A. § 2255 (West
Supp. 2004) motion, to challenge his counsel’s failure to object.
5
GREGORY, Circuit Judge, dissenting:
I respectfully dissent. I would hold that the district court
committed plain error in imposing a forfeiture on Berry without the
required “factual nexus” between the forfeiture amount and his drug
crimes.
I.
Criminal forfeiture is authorized by 21 U.S.C. § 853, which
provides for the forfeiting of property “constituting, or derived
from any proceeds the person obtained, directly or indirectly, as
the result of” certain controlled substance violations. 21 U.S.C.
§ 853(a)(1) (1999). Property “used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission of” such
a violation is likewise subject to forfeiture. Id. § 853(a)(2).
In Libretti v. United States, 516 U.S. 29 (1995), the Supreme
Court considered 21 U.S.C. § 853 and held that criminal forfeiture
“is less a substantive offense and more an element of the
offender’s sentence.” United States v. White, 116 F.3d 948, 950
(1st Cir. 1997) (citing Libretti, 516 U.S. at 39). Because
forfeiture is part of the sentence, the requirements of Fed. R.
Crim. P. 11 do not apply. Libretti, 516 U.S. at 39-41. “This does
not mean, however, that the government can forfeit assets for the
asking.” White, 116 F.3d at 950. Rather, the Libretti Court made
clear that Ҥ 853 limits forfeiture by establishing a factual nexus
6
requirement: Only drug-tainted assets may be forfeited.” 516 U.S.
at 42 (emphasis added). Thus, the Government must establish a
connection between the forfeited property and the defendant’s
criminal conduct.1
Fed. R. Crim. P. 32.2, which governs the procedure for the
forfeiture of assets in a criminal case, confirms this requirement.
It states, in part:
If the government seeks a personal money judgment, the
court must determine the amount of money that the
defendant will be ordered to pay. The court’s
determination may be based on evidence already in the
record, including any written plea agreement or, if the
forfeiture is contested, on evidence presented by the
parties at a hearing after the verdict or finding of
guilt.
Fed. R. Crim. P. 32.2(1). Libretti noted that a district court did
not have to accept a defendant’s agreement to forfeit property,
“particularly when the agreement is not accompanied by a
stipulation of facts supporting forfeiture, or when the trial judge
for other reasons finds the agreement problematic.”2 519 U.S. at
43. It also stated that in the case before it “we need not
1
The preponderance of the evidence standard governs forfeiture
questions. United States v. Tanner, 61 F.3d 231, 234 (4th Cir.
1995).
2
The Government urges us to read this statement to mean that
while the district court does not have to rely upon a stipulation
in a written plea agreement, it has the discretion to accept the
Government’s proffered forfeiture amount in the absence of any plea
agreement. Appellee’s Br. at 17. Such an interpretation goes
beyond the holding of Libretti and is implausible in light of the
Libretti Court’s reiteration that § 853 requires a “factual nexus.”
7
determine the precise scope of a district court’s independent
obligation, if any, to inquire into the propriety of a stipulated
asset forfeiture embodied in a plea agreement.” Id. However, this
was because “there is ample evidence that the District Court both
understood the statutory requisites for criminal forfeiture and
concluded that they were satisfied on the facts of this case at the
time the sentence was imposed.” Id. at 44.
II.
As the majority notes, because Berry did not object to the
order of forfeiture, the district court’s decision to impose
forfeiture in the amount of $10,000 is reviewed for plain error.3
Fed. R. Crim. P. 52(b); United States v. Fant, 974 F.2d 559, 564
(4th Cir. 1992).
3
While the majority declines to reach the Government’s
argument that Berry waived review of the forfeiture order by
pleading guilty, I would find that a waiver did not occur. The
Supreme Court’s holding that forfeiture is part of a defendant’s
sentence and not a substantive charge, Libretti, 516 U.S. at 39-41,
forecloses the Government’s argument that Berry’s guilty plea acted
as a waiver to his right to challenge the forfeiture.
The Government also fails to demonstrate why this court should
treat Berry’s failure to object to his forfeiture amount
differently from a failure to object to any other part of his
sentence. For example, if the Government gave Berry notice that it
planned to seek an upward departure under the Sentencing Guidelines
and the district court imposed such departure without objection,
Berry’s argument on appeal that such a departure was unwarranted
would clearly be subject to plain error review. I fail to see how
the absence of an objection to the amount of forfeiture is
distinguishable.
8
In this case, there were no “stipulated facts” concerning
forfeiture for the district court to consider because Berry did not
plead guilty pursuant to a written plea agreement. The district
court judge also did not make any inquiry into what facts supported
the forfeiture of $10,000. Similarly, the Government did not
proffer any evidence to support a forfeiture of that amount. In
short, no evidence supported a factual nexus between the drug
crimes to which Berry pled guilty and the $10,000 forfeiture
amount.4 In light of the clear language of § 853, Rule 32.2, and
the Court’s holding in Libretti, this was “error” under prong one
of the plain error analysis as set out in United States v. Olano,
507 U.S. 725, 732 (1993). This error was also “plain” under prong
two because Libretti explicitly stated that § 853 included a
factual nexus requirement. See Olano, 507 U.S. at 732 (explaining
that “plain” is synonymous with clear or equivalently obvious);
United States v. Neal, 101 F.3d 993, 998 (4th Cir. 1996)
(explaining that an error is clear or equivalently obvious “if the
settled law of the Supreme Court or this circuit establishes that
an error has occurred”).
4
The record does not reveal any reason that the forfeiture
amount was set at $10,000. The Presentence Investigation Report,
issued on December 3, 2003, indicated that Berry had $15 in known
assets and $212 in unsecured debt. Given that Berry’s charged drug
transactions only amounted to $2,275, it appears that the
Government may have set this amount arbitrarily. At oral argument,
the Assistant United States Attorney admitted that the record does
not reflect how the $10,000 amount was calculated.
9
Although such error occurred, Berry must also demonstrate that
the error affected his “substantial rights.” In most cases, this
means that the error must have been prejudicial in that it affected
the outcome of the district court proceedings. Olano, 507 U.S. at
734. The majority reasons that any error did not affect Berry’s
substantial rights because his forfeiture and his fine were part of
a single, integrated sentence in which the district court judge
assessed a lower fine amount than that authorized by statute and
the Sentencing Guidelines. However, in imposing a smaller fine,
the district court judge specifically noted at sentencing: “The
Court finds that you are without the ability to satisfy a fine in
the prescribed range or pay interest.” J.A. 36. This finding was
in accordance with U.S.S.G. § 5E1.2, which gives a court authority
to impose a smaller fine if the defendant establishes that he is
unable or not likely to become able to pay all of the required
fine. See U.S.S.G. § 5E1.2 (e).
The judge then noted that, “You will forfeit property to the
United States as specified in the final order of forfeiture.” J.A.
36. The judge did not mention the $10,000 forfeiture amount or tie
that forfeiture amount to his finding that Berry was without the
ability to pay the fine. Thus, neither the judge’s findings at
sentencing nor other evidence in the record support the majority’s
assertion that a reduction in the amount of forfeiture may have
resulted in a commensurate increase in the amount of fine imposed.
10
The Fourth Circuit’s decision in United States v. Maxwell, 285
F.3d 336 (4th Cir. 2002), supports a finding that this error
affected Berry’s substantial rights. In Maxwell, the court
conducted plain error review when a judge sentenced a defendant to
a longer term of supervised release than that allowed by statute.
285 F.3d at 339. After finding that prongs one and two of Olano
were met, the court found that the error affected the defendant’s
substantial rights because “the terms and conditions of supervised
release are a substantial imposition on a person’s liberty.” Id.
at 342. Likewise, the forfeiture here is a term of Berry’s
supervised release. It is a term that will likely subject Berry to
much financial hardship and also restrain him because he is now
subject to a $10,000 debt after he serves his sentence—a
considerable amount. Therefore, I would find that the district
court’s imposition of the $10,000 forfeiture as a condition of
Berry’s supervised release, without any evidence suggesting that
such a forfeiture amount was correct, affected Berry’s substantial
rights.
The last consideration, whether this error seriously affects
the fairness, integrity or public reputation of judicial
proceedings, is usually more difficult to demonstrate. However,
our holding in Maxwell suggests that it may be “fundamentally
unfair” to uphold a plain error that substantially affects one’s
11
rights during a sentencing proceeding, when a resentencing can
easily occur.5 Specifically, the court stated,
the restrictions on a person’s liberty while serving a
term of supervised release are quite substantial. To
refuse to order a resentencing when a defendant will be
required to endure such restrictions on his liberty,
including restrictions on his ability to travel, for
nearly a year longer than required by law, strikes us as
fundamentally unfair.
Maxwell, 285 F.3d at 342-43. Similarly, it is “fundamentally
unfair” to subject Berry to a $10,000 forfeiture when the terms of
his supervised release can be easily modified at resentencing. In
this regard it is entirely reasonable to view a $10,000 forfeiture
as just as, if not more, onerous than subjecting one to an
additional eleven months of supervised release as in Maxwell.
Yet, aside from this “fundamental unfairness,” this case
involves broader concerns. In Libretti, the Court recognized that
5
There is some authority that unobjected to errors in
sentencing should be reviewed with a less deferential standard as
the costs of resentencing are lower than the costs of retrial. In
United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002), the Second
Circuit stated:
We have also noted that noticing unobjected to errors
that occur at trial precipitates an entire new trial that
could have been avoided by a timely objection, whereas
correcting a sentencing error results in, at most, only
a remand for resentencing, or as, in this case, for a
modification of the allegedly erroneous condition of
supervised release. Accordingly, although the Government
is correct that plain error review applies, it appears
that in the sentencing context there are circumstances
that permit us to relax the otherwise rigorous standards
of plain error review to correct sentencing errors.
Id. at 125.
12
it had previously found that broad forfeiture provisions, such as
21 U.S.C. § 853, “carry the potential for Government abuse and ‘can
be devastating when used unjustly.’” 516 U.S. at 43 (quoting
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 634
(1989)). “Nonetheless, [it] concluded that ‘[c]ases involving
particular abuses can be dealt with individually by the lower
courts, when (and if) any such cases arise.’” Id. (quoting Caplin
& Drydale, 491 U.S. at 635). Because the facts of this case
indicate that the Government imposed a forfeiture amount
arbitrarily and without any factual nexus whatsoever to the drug
crimes in question, I conclude that this is such a case of abuse.6
I believe such abuse seriously affects the fairness, integrity
and public reputation of judicial proceedings. First, this
overreaching implicates both the fairness and public reputation of
our judicial system because it undermines a system that is built on
finding facts only through evidence as well as on following
procedural safeguards adequate to protect the public’s rights.
Second, and equally important, is that the forfeiture amount was
imposed neither with any judicial finding that such an amount was
appropriate nor any evidence in the record to justify a $10,000
forfeiture. In this regard, this case directly and seriously
6
By using the term “abuse,” I do not mean to suggest that the
Government acted with any animus towards Berry.
13
affects the integrity of our judicial system, a system in which the
judge must be the arbiter of such forfeiture findings.
III.
Accordingly, as I would find that it was plain error to
subject Berry to a $10,000 forfeiture without establishing a
factual nexus between this amount and his drug crimes, I
respectfully dissent.
14