United States v. Ylli Gjeli

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 15-1892 & 15-2521
_____________

UNITED STATES OF AMERICA

v.

YLLI GJELI, a/k/a Willie

Ylli Gjeli,
Appellant in No. 15-1892

FATMIR MUSTAFARAJ, a/k/a Tony

Fatmir Mustafaraj,
Appellant in No. 15-2521
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. No. 2-13-cr-00421-001 & 002
District Judge: Honorable William H. Yohn, Jr.
_______________

Submitted Under Third Circuit LAR 34.1(a)
June 12, 2017
 Before: JORDAN, KRAUSE, Circuit Judges and
STEARNS*, District Judge.

(Opinion Filed: August 11, 2017)
_______________

Edson A. Bostic
Tieffa N. Harper
Office of the Federal Public Defender
For the District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801
Attorneys for Appellant Ylli Gjeli

Alison Brill
Office of the Federal Public Defender
For the District of New Jersey
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

Richard Coughlin
For the District of New Jersey
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102

*
Honorable Richard G. Stearns, United States District
Court Judge for the District of Massachusetts, sitting by
designation.

2
Eugene P. Tinari
Law Offices of Eugene P. Tinari
1313 Race Street
Philadelphia, PA 19107
Attorneys for Appellant Fatmir Mustafaraj

Louis D. Lappen
Robert A. Zauzmer
Salvatore L. Astolfi
Katherine E. Driscoll
Jerome M. Maiatico
Office of the United States Attorney
For the Eastern District of Pennsylvania
615 Chestnut Street, Ste. 1250
Philadelphia, PA 19106
Attorneys for Appellee

______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Ylli Gjeli and Fatmir Mustafaraj were tried together
and convicted of a number of racketeering-related offenses in
connection with a loan sharking and illegal gambling
operation in Philadelphia. The District Court entered
preliminary orders of forfeiture making both men jointly and
severally liable for more than $5 million of the proceeds from
the criminal operation. Gjeli and Mustafaraj appeal the
forfeiture orders and their sentences. During the pendency of
this appeal, the Supreme Court issued its opinion in

3
Honeycutt v. United States, reviewing one of the forfeiture
statutes at issue here and holding that joint and several
liability is unauthorized. 137 S. Ct. 1626, 1630 (2017). In
light of that holding, we will remand this case for the District
Court to reconsider the forfeiture orders. As to all other
issues on appeal, we will affirm.

I. Background

In August 2013, a grand jury in the Eastern District of
Pennsylvania returned a 26-count indictment against nine co-
defendants, including Gjeli and Mustafaraj. The indictment
described a violent criminal enterprise, in operation since at
least 2002, that made money for its members through “loan
sharking, extortion, illegal gambling, and the collection of
unlawful debts[.]”1 (App. at 106.) Gjeli was a “leader and
‘boss’ of the enterprise who directed other members in the
loan sharking activities and illegal gambling business.” (App.
at 110.) Mustafaraj was a “leader and ‘muscle’ in the
enterprise who regularly assisted … Gjeli and directed other
members” of the enterprise. (Id.)

1
The loan sharking portion of the enterprise worked
by lending large sums of cash at extreme interest rates, the
majority of which were between 104% and 156% per year,
but which were sometimes as high as 395% per year. The
defendants would exert pressure on loan recipients who were
unable to make payments, including by visiting their homes
and places of employment, and threatening violence. The
gambling business involved sports betting and significantly
overlapped with the loan sharking, as the gamblers were often
in need of funds.

4
 The indictment charged all of the co-defendants with
being members of a RICO conspiracy in violation of 18
U.S.C. § 1962(d). Gjeli and Mustafaraj were also charged
with a number of other crimes stemming from the enterprise.
Five of the defendants eventually pled guilty, and four,
including Gjeli and Mustafaraj, went to trial. The jury found
Gjeli guilty on ten counts and Mustafaraj guilty on twelve.2
The jury did not, however, convict on all counts. In
particular, it acquitted Gjeli and Mustafaraj of making an
extortionate extension of credit, which was charged in Count
13, and possession of a firearm in furtherance of a crime of

2
Gjeli was found guilty of racketeering conspiracy in
violation of 18 U.S.C. § 1962(d) (Count 1); collection of
unlawful debt, in violation of 18 U.S.C. § 1962(c) (Counts 4,
10, 11); making extortionate extensions of credit, in violation
of 18 U.S.C. § 892 (Counts 14 to 16); collection of extensions
of credit by extortionate means, in violation of 18 U.S.C.
§ 894(a)(1) (Counts 23 and 24); and operating an illegal
gambling business, in violation of 18 U.S.C. § 1955(a) (Count
25).
Mustafaraj was found guilty of racketeering
conspiracy in violation of 18 U.S.C. § 1962(d) (Count 1);
collection of unlawful debt, in violation of 18 U.S.C.
§ 1962(c) (Counts 3, 7, 9, 11, 12); making extortionate
extensions of credit, in violation of 18 U.S.C. § 892 (Counts
14 to 16); collection of extensions of credit by extortionate
means, in violation of 18 U.S.C. § 894(a)(1) (Counts 22 and
24); and operating an illegal gambling business, in violation
of 18 U.S.C. § 1955(a) (Count 25).

5
violence, which was charged in Count 26.3 Those specific
counts were based on an incident involving Anthony Rodi, a
loan recipient with a gambling problem. Rodi testified at trial
that, in January 2011, when he asked Mustafaraj and Gjeli for
money, they wielded an axe and threatened that higher-ups in
their organization in New York would cut Rodi’s arm off if
he was unable to pay back the loan. Rodi said that Gjeli then
instructed Mustafaraj to “go and get it” (App. at 2445), and
Mustafaraj left and returned with a firearm that Gjeli pointed
at Rodi’s head. A co-defendant, George Markakis, who ran
the sports betting side of the RICO enterprise, testified that he
had expressed concern about Rodi’s mounting debts from
football betting in 2012, but that Mustafaraj had assured him
“they had [Rodi] under control and not to worry about it.”
(App. at 3589.) Markakis told the jury that Mustafaraj
explained that he (Mustafaraj) and Gjeli had “scared” Rodi
with “a machete and a pistol.” (App. at 3589.)

At the sentencing hearings for each man, the District
Court announced its conclusions under the United States
Sentencing Guidelines, after working through calculations
involving the grouping of offenses. The imprisonment range
for both turned out to be 135 to 168 months. Gjeli was
sentenced to 168 months and Mustafaraj to 147.

The Indictment had contained notices of forfeiture for
the charges of engaging in a racketeering conspiracy, making
extortionate credit transactions, illegal gambling, and
possessing a firearm in furtherance of a crime of violence.
Pursuant to Rule 32.2 of the Federal Rules of Criminal

3
Gjeli was also acquitted on Count 18, the collection
of an extension of credit by extortionate means.

6
Procedure, those notices alerted Gjeli and Mustafaraj that the
government could seek forfeiture at sentencing in the event of
conviction on those counts. Following the verdicts, the
government filed motions seeking preliminary orders of
forfeiture. The District Court granted those motions, and
neither Gjeli nor Mustafaraj objected to the entry of the
preliminary orders. At each man’s sentencing hearing, the
District Court made statements regarding forfeiture, but the
judgments themselves did not reference the forfeiture orders.

II. Discussion4

The Defendants raise three issues on appeal. First,
they dispute the application of a dangerous weapon
enhancement that was used to calculate their Guidelines
range. Second, they argue that the calculation of their base
offense level under the Guidelines’ grouping provisions was
incorrect. Finally, they raise a number of challenges to the
District Court’s entry of the forfeiture orders. We address
each of those issues in turn.

4
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.

7
 A. Application of Sentencing Enhancement5

Gjeli and Mustafaraj argue that the District Court
violated the Constitution by considering at sentencing their
use of an axe to threaten Anthony Rodi. In their view,
making that incident the basis of a dangerous weapons
enhancement to their sentencing range was contrary to the
Sixth Amendment.6 They say that the use of the axe
constitutes acquitted conduct because it was one of the acts
that formed the basis of Count 26, of which they were found
not guilty.7 Citing Apprendi v. New Jersey, 530 U.S. 466

5
Our review of the Defendants’ Sixth Amendment
challenge to the imposition of the sentencing enhancement is
plenary, as it is a question of law. United States v. Barbosa,
271 F.3d 438, 452 (3d Cir. 2001).
6
Specifically, the Court applied the sentencing
enhancement delineated in United States Sentencing
Guidelines § 2E2.1(b)(1)(B), which states that: “if a
dangerous weapon (including a firearm) was … used,
increase [the offense level] by 4 levels[.]”
7
Count 26 charges Mustafaraj and Gjeli with having:
knowingly possessed a firearm in furtherance of
a crime of violence for which the defendants
may be prosecuted in a court of the United
States, that is, Count One of this indictment,
which charged Racketeering Conspiracy, in that
the conspiracy involved Making Extortionate
Extensions of Credit, in violation of Title 18,
United States Code, Section 892, and
Collections of Extensions of Credit By

8
(2000), they contend that relying on acquitted conduct
violates the Sixth Amendment right to trial by jury. Their
argument is unavailing.

In Apprendi, the Supreme Court held that the Sixth
Amendment guarantee of a right to trial by jury means that
“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” 530 U.S. at 490.
The Court has applied Apprendi numerous times, in each case
concluding “that the defendant’s constitutional rights had
been violated because the judge had imposed a sentence
greater than the maximum he could have imposed … without
the challenged factual finding.” Blakely v. Washington, 542
U.S. 296, 303 (2004) (citing Apprendi, 530 U.S. at 491-97,
and Ring v. Arizona, 536 U.S. 584, 603-09 (2002)). What has
come to be called an Apprendi violation thus occurs whenever
an enhanced sentence exceeds the statutory maximum that
could have been imposed without application of the
enhancement. See Blakely, 542 U.S. at 303 (“Our precedents
make clear … that the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely

Extortionate Means, in violation of Title 18,
United States Code, Section 894(a)(1); and
Count Thirteen of this indictment, which
charged Making an Extortionate Extension of
Credit, in violation of Title 18, United States
Code, Sections 894(a)(1) and 2, to Customer
#8, a person known to the grand jury; and the
defendants brandished that firearm.
(App. at 178.)

9
on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” (emphasis omitted)).

No Apprendi error occurred here. Neither Gjeli nor
Mustafaraj complain that the sentences they received went
beyond the statutory maximum to which they were exposed,
and clearly their sentences do not.8 Their argument, rather, is

8
In light of its holding in Apprendi, the Supreme Court
in United States v. Booker recognized that sentencing
enhancements that increase an applicable Guidelines range
would likewise offend the Sixth Amendment if the Guidelines
were treated as mandatory in sentencing decisions. 543 U.S.
220, 232-33 (2005). The Court therefore held that the
Guidelines are not mandatory and instead must be considered
advisory. Id. at 245. We have explained that, since Booker,
“the final Guidelines range does not bind the district court,
but merely serves as one of a number of factors to be
considered in fashioning the ultimate sentence.” United
States v. Grier, 475 F.3d 556, 564-65 (3d Cir. 2007) (en banc)
(citing Booker, 543 U.S. at 259-60). And the facts found by
the district court in imposing a sentencing enhancement do
not “have the effect of increasing the maximum punishment
to which the defendant is exposed.” Id. (citing Apprendi, 530
U.S. at 489-94). Therefore, unless the sentence exceeded the
statutory maximum chosen by Congress in the United States
Code, the sentence is not unconstitutional. Id.; see United
States v. Ciavarella, 716 F.3d 705, 735 (3d Cir. 2013)
(recognizing that the “Sixth Amendment right to a jury trial is
not implicated by fact finding during a sentencing proceeding
unless those facts increase the statutory maximum
punishment” (citing Apprendi, 530 U.S. at 490)).

10
that the District Court’s application of the dangerous weapon
enhancement for use of the axe was a violation of their Sixth
Amendment rights because it relied on acquitted conduct.
But that argument ignores that they were never charged with
a crime for which the use of an axe was an element. The only
count against Gjeli and Mustafaraj that has as an element
anything to do with a weapon was Count 26, which charged
them with possession of a firearm in furtherance of a crime of
violence.9 True enough, they were acquitted on that charge,
and it is also true that the alleged firearm crime happened to
have occurred during the same incident in which the axe was
used. But that does not mean that the acquittal was about the

9
Neither Count 13, of which Gjeli and Mustafaraj
were acquitted, nor Count 18, of which Gjeli was acquitted
(Mustafaraj was not charged in Count 18), had use of
weapons as an element. The charge in Count 13, making an
extortionate extension of credit, requires that the defendant
made “any extortionate extension of credit, or conspire[d] to
do so.” 18 U.S.C. § 892(a); see United States v. Giampa, 758
F.2d 928, 933 (3d Cir. 1985) (noting that an extortionate
extension of credit in turn requires “an ‘understanding of the
creditor and debtor at the time [the extension of credit] is
made that delay in making repayment or failure to make
repayment could result in the use of violence or other
criminal means to cause harm’” (quoting 18 U.S.C. § 891(6))
(alteration in Giampa)). The charge in Count 18, collection
of credit by extortionate means, has the following elements:
(a) “knowingly participat[ing] in any way,” (b) “in the use of
any extortionate means[,]” (c) “to collect or attempt to collect
any extension of credit, or to punish any person for the
nonrepayment thereof[.]” 18 U.S.C. § 894(a).

11
axe. It was not, because the charge itself was not about the
axe. In short, use of the axe was never charged and therefore
did not constitute conduct of which they were acquitted.

Even if the District Court in its discretion had relied on
acquitted conduct, though, “a jury’s verdict of acquittal does
not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence.” United
States v. Ciavarella, 716 F.3d 705, 735-36 (3d Cir. 2013)
(quoting United States v. Watts, 519 U.S. 148, 157 (1997)).
That is because “the jury cannot be said to have necessarily
rejected any facts when it returns a general verdict of not
guilty.” Watts, 519 U.S. at 155. The District Court here had
ample basis for deciding by a preponderance of the evidence
that the dangerous weapon enhancement should apply, given
that “the testimony [by Mr. Rodi] with reference to the [axe]
… was corroborated by Mr. Markakis.” (App. at 5243-44.)

“We find no clear error in the District Court’s factual
findings because there is sufficient evidence in the record to
support the finding” that a dangerous weapon, namely the
axe, was used.10 Ciavarella, 716 F.3d at 736. Therefore, the

10
The Guidelines define a dangerous weapon, in part,
as “an instrument capable of inflicting death or serious bodily
injury[.]” U.S.S.G. § 1B1.1, cmt. (n.1(D)). An axe is
undoubtedly such an instrument, and the District Court
determined that by a preponderance of the evidence. (See
App. at 5244 (“Obviously, the [axe] is such a dangerous
weapon, and [the] use of it to threaten the witness calls for the
application of the four-point enhancement.”).)

12
argument that the District Court’s application of the
dangerous weapon enhancement violated the Sixth
Amendment fails.

B. RICO Grouping under the Guidelines

The Sentencing Guidelines lay out a method for
determining a numerical offense level for federal crimes,
which, when combined with a defendant’s criminal history
score, yield a sentencing range. The base offense level for a
RICO conspiracy is the greater of either 19 or the level
applicable to the underlying racketeering activity. See
U.S.S.G. § 2E1.1. To calculate the latter number, we must
launch on a journey through the Guidelines’ labyrinthine
provisions for grouping offenses. A sentencing court “treat[s]
each underlying offense as if contained in a separate count of
conviction ... .” Id. § 2E1.1, cmt. (n.1). After identifying the
underlying racketeering offenses the court then groups
together closely related ones, in accordance with Chapter 3 of
the Guidelines. Id. § 3D1.2. Once those offenses are
grouped, the court assigns a base offense level to each
“Group” based on the nature of the grouping and of the
offenses grouped. Id. § 3D1.3. In assigning the base offense
level to each Group, the court looks to the highest offense
level of the underlying offenses in that Group. Id. § 3D1.3.

After the offense level has been determined for each
Group, the sentencing court must then determine the
combined offense level of all the Groups. To do so, the court
“tak[es] the offense level applicable to the Group with the
highest offense level and increas[es] that offense level by the
amount indicated” in a table included in the Guidelines. Id.
§ 3D1.4. That table requires the court to assign “Units” to

13
each Group. Id. One Unit is assigned to the Group with the
highest offense level. Id. § 3D1.4(a). Then, one additional
Unit is added “for each Group that is equally serious or from
1 to 4 levels less serious” than the Group with the highest
offense level. Id. And one-half Unit is added for “any Group
that is 5 to 8 levels less serious than the Group with the
highest offense level.” Id. § 3D1.4(b). “[A]ny Group that is
9 or more levels less serious than the Group with the highest
offense level” is to be disregarded. Id. § 3D1.4(c). Based on
the total number of Units, the base offense level can be
increased up to a maximum of 5 levels, if the sum of the
Units is 5 or greater. Id. § 3D1.4.

For both Gjeli and Mustafaraj, the highest offense
level applicable to the groupings was 28, and the groupings’
Units aggregated to 8.5 Units. So a 5 level increase in
offense level was added to 28, making the total offense level
for each man 33.

Mustafaraj makes two arguments with respect to the
District Court’s calculation of his offense level. First, he
claims that the District Court erred by declining to decide a
“contested issue” (Mustafaraj Br. at 36), namely whether he
had participated in criminal acts that were designated as
Groups 10, 11, and 12 in the calculation. Second, he argues
that, even if he had participated in those crimes, the District
Court erred by including Groups 10, 11, and 12 in the
calculation at all. Gjeli joins that second argument. Our
review of the District Court’s calculations is plenary.11 See

11
Gjeli did not waive that second argument and
therefore our review is plenary as to the alleged error
affecting him, but Mustafaraj’s counsel (rightly) agreed with

14
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en
banc) (“[T]his Court will … exercise plenary review over a
district court’s interpretation of the Guidelines.”).

As to the first argument, Mustafaraj says that the
District Court should have ruled on the exclusion of the
contested Groups pursuant to Federal Rule of Criminal
Procedure 32. That Rule requires a sentencing court to “rule
on [any disputed portion of a presentence report] or determine
that a ruling is unnecessary either because the matter will not
affect sentencing, or because the court will not consider the
matter in sentencing[.]” Fed. R. Crim. P. 32(i)(3)(B). The
Rule is “strictly enforced[,]” United States v. Electrodyne
Sys. Corp., 147 F.3d 250, 255 (3d Cir. 1998), and the District
Court here did as instructed: it found that the precise
objection “[would] not affect sentencing.” Fed. R. Crim. P.
32(i)(3)(B). That satisfies Rule 32. Cf. United States v.
Campbell, 295 F.3d 398, 406 (3d Cir. 2002) (declining to find
a Rule 32 violation where a party raised his objections for the
first time at sentencing and the sentencing court ruled on
them on the record).

the District Court that it was not necessary to rule on the
inclusion of Groups 10, 11, and 12 in the sentencing
calculation. His challenges therefore need only be reviewed
for plain error. See United States v. Flores-Mejia, 759 F.3d
253, 254-55 (3d Cir. 2014) (en banc) (reviewing unpreserved
procedural challenges to a sentence for plain error). As the
District Court’s rulings on these issues survive plenary
review, however, it is clear that they do not constitute plain
error.

15
 Mustafaraj’s second argument, the one joined by Gjeli,
is that the District Court should have excluded the contested
Groups altogether. Even if that argument had merit, however,
it is irrelevant. As the District Court pointed out, excluding
the contested Groups would not have affected the resulting
Guidelines range for either man because, even without them,
each was subject to the five-level increase based on the
remaining Groups affecting his sentence. (See App. at 5097
(recognizing that even if the District Court excluded the
Groups “that would only delete two units, so [the defendant]
would still have 6.5 units, and therefore, there would be a
five-point enhancement”).) Therefore, the Court’s conclusion
that ruling on the matter was unnecessary was sufficient.
Fed. R. Crim. P. 32(i)(3)(B). Furthermore, any error in this
regard – and we are not implying there was any – was
harmless, as it did not affect either man’s sentence.12 See

12
Mustafaraj also argues that the District Court erred
in failing to strike a reference to guns in paragraph 178 of his
Pre-Sentence Report. The government agrees that that was a
clerical error but notes that it can be resolved at any time by
motion to the District Court through Federal Rule of Criminal
Procedure 36. Rule 36 states that “the court may at any time
correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from
oversight or omission.” Fed. R. Crim. P. 36. Because we
agree that any clerical error is properly the subject of a Rule
36 motion to the District Court, United States v. Bennett, 423
F.3d 271, 277 (3d Cir. 2005), we do not address it on appeal.
Mustafaraj’s additional argument that his Bureau of
Prisons’ classification was potentially affected by the PSR is
irrelevant to our review of the sentence imposed. Williams v.
United States, 503 U.S. 193, 202-03 (1992) (“[R]emand is

16
Fed. R. Crim. P. 52(a) (“Any error ... that does not affect
substantial rights must be disregarded.”). We thus reject
Mustafaraj and Gjeli’s challenges to the calculations
associated with the RICO conspiracy.

C. Forfeiture

Gjeli and Mustafaraj argue that the District Court
never announced the amount of forfeiture at sentencing and
failed to include a final order of forfeiture in the judgment, as
required by Federal Rule of Criminal Procedure
32.2(b)(4)(B).13 The government takes a different view of the

required only if the sentence was imposed as a result of an
incorrect application of the Guidelines.” (internal quotation
marks omitted) (emphasis added)); see also United States v.
Wilken, 498 F.3d 1160, 1170 n.9 (10th Cir. 2007) (“Precedent
is clear … that we determine whether a sentencing error is
harmless with reference only to the sentence imposed.”
(citing Williams)).
13
Federal Rule of Criminal Procedure 32.2(b)(4)(B)
governs “Notice [of Forfeiture] and Inclusion in the
Judgment.” It states that:

The court must include the forfeiture when
orally announcing the sentence or must
otherwise ensure that the defendant knows of
the forfeiture at sentencing. The court must also
include the forfeiture order, directly or by
reference, in the judgment, but the court’s
failure to do so may be corrected at any time
under Rule 36.

17
record and contends that the District Court did ensure that
both men knew of the forfeiture at sentencing, although the
government does agree that the Court failed to include the
final order of forfeiture in the judgment. Indeed, a review of
the judgments confirms that a clerical error occurred – the
forfeiture orders are not included – so we must at least
remand for the District Court to correct that error under
Federal Rule of Criminal Procedure 36.14

In addition to that problem, the parties agree that
forfeiture was imposed jointly and severally and that such
liability is no longer permissible in light of Honeycutt v.
United States. 137 S. Ct. 1626 (2017). Neither Gjeli nor
Mustafaraj objected to joint and several liability, and the
District Court quite rightly relied on our then-controlling
decision in United States v. Pitt, 193 F.3d 751 (3d Cir. 1999),
in imposing that form of liability.15 That, however, was

14
See n.12, supra, for the relevant text of Rule 36.
15
Because Gjeli and Mustafaraj did not object to the
preliminary orders of forfeiture below, those claims would
ordinarily be subject to plain error review. United States v.
Olano, 507 U.S. 725, 735 (1993). Here, however, there was
an intervening change in the law that provided a basis for
appeal that did not exist at the time the District Court ruled on
the preliminary orders of forfeiture. See Hamling v. United
States, 418 U.S. 87, 102 (1974) (“[A] change in the law
occurring after a relevant event in a case will be given effect
while the case is on direct review.”); see also McLaughlin v.
Wohlgemuth, 535 F.2d 251, 254 (3d Cir. 1976) (vacating and
remanding for district court to reconsider opinion in light of
intervening law).

18
before the Supreme Court decided Honeycutt. In Honeycutt,
the text and structure of 21 U.S.C. § 853 led the Court to
conclude that a defendant cannot “be held jointly and
severally liable for property that his co-conspirator derived
from the crime but that the defendant himself did not
acquire.” 137 S. Ct. at 1630. That holding effectively
overturns our decision in Pitt. Id. at 1631 n.1.

The statute at issue in Honeycutt was the basis for
forfeiture for certain counts of conviction in this case, and
therefore obviously affects the forfeiture ruling here. And
while the forfeiture based on other counts of conviction was
rooted in a different criminal forfeiture statute, 18 U.S.C.
§ 1963, and in a civil forfeiture statute, 18 U.S.C.
§ 981(a)(1)(C), a review of the text and structure of those
statutes reveals that they are substantially the same as the one
under consideration in Honeycutt.16 We thus see no reason

16
A review of the applicable forfeiture statutes
demonstrates the substantial equivalency in both structure and
text.

18 U.S.C. § 1963(a), which pertains to the racketeering
conspiracy (Count 1), states that:
Whoever violates any provision of section 1962
of this chapter … shall forfeit to the United
States, irrespective of any provision of State law
…
(3) any property constituting, or derived from,
any proceeds which the person obtained,
directly or indirectly, from racketeering
activity or unlawful debt collection in
violation of section 1962.

19
why the holding in Honeycutt does not apply with equal force
to those statutes. Joint and several liability therefore cannot
be imposed in these cases. Instead, “[f]orfeiture … is limited
to property [each] defendant himself actually acquired as the
result of the crime.” Honeycutt, 137 S. Ct. at 1635. We will

18 U.S.C. § 981(a)(1), which pertains to extortionate
extensions of credit (Counts 13-24) and illegal gambling
(Count 25), states that:
The following property is subject to forfeiture
to the United States:
(C) Any property, real or personal, which
constitutes or is derived from proceeds
traceable to a violation of [certain sections]
of this title or any offense constituting
“specified unlawful activity” (as defined in
section 1956(c)(7) of this title), or a
conspiracy to commit such offense.

21 U.S.C. § 853(a), which became relevant through the
government’s desire to seek substitute property pursuant to 21
U.S.C. § 853(p) for each count for which forfeiture was
sought, United States v. Vampire Nation, 451 F.3d 189, 202
(3d Cir. 2006), states that:
Any person convicted of a violation of this
subchapter … shall forfeit to the United States,
irrespective of any provision of State law--
(1) any property constituting, or derived from,
any proceeds the person obtained, directly
or indirectly, as the result of such
violation[.]

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therefore remand for the District Court to reconsider its
forfeiture rulings and include any final orders of forfeiture in
the final written judgment as to each defendant.

III. Conclusion

For the foregoing reasons, we will affirm in part and
vacate and remand in part.

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