United States v. John Maddux, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0135p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 20-5972
│
v. │
│
JOHN MADDUX, JR.; CHRISTINA CARMAN, │
Defendants-Appellants. │
│
┘

Appeal from the United States District Court for the Eastern District of Kentucky at Ashland.
No. 0:14-cr-00020—David L. Bunning, District Judge.

Decided and Filed: June 22, 2022

Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Kent Wicker, DRESSMAN BENZINGER LA VELLE PSC, Louisville, Kentucky,
for Appellants. Haley Trogdlen McCauley, Charles P. Wisdom, Jr., UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
_________________

OPINION
_________________

SUHRHEINRICH, Circuit Judge.

Nothing is certain but death and taxes, and cigarettes often beget both. But John
Maddux, Jr., and his wife, Christina Carman, along with some friends and family, found a way to
skirt the tax part: for years they trafficked cigarettes in a way that bypassed governmental taxing
authorities. This enabled them to sell untaxed cigarettes directly to consumers at a steep
 No. 20-5972 United States v. Maddux, et al. Page 2

discount—converting what would have been taxes into profits for themselves. The law caught
up with them, they were convicted and sentenced, and we affirmed in full. See generally United
States v. Maddux, 917 F.3d 437 (6th Cir. 2019).

If we can be certain of anything else, it is that criminal sentences rarely change (let alone
grow) after that point, subject to a few narrow exceptions. Yet we have this case. Before
Maddux’s and Carman’s sentencing hearings, the government sought two multi-million-dollar
money judgments against each of them—forfeiture orders representing the gross proceeds of
their scheme. So far, good enough. By the time of their sentencings, however, the district court
failed to enter preliminary forfeiture orders, nor did it include the money judgments as “part
of the sentence[s]” announced. 28 U.S.C. § 2461(c); see Fed. R. Crim. P. 32.2(b)(2)(B),
(b)(4)(A)–(B). Instead, years after their sentences became final—and affirmed by this court—
the district court imposed the two money judgments sought, which Maddux and Carman now
appeal.

All agree (including the district court) that that chain of events ignored Federal Rule of
Criminal Procedure 32.2(b). That rule provides the procedures for effecting criminal forfeiture,
requiring that a preliminary forfeiture order is entered well before sentencing, that forfeiture is
included in the sentence, and that any forfeiture (or lack thereof) becomes final at sentencing.
The district court, however, justified its late-issued money judgments by calling Rule 32.2(b)’s
procedural requirements time-related directives—deadlines that may be violated so long as the
defendant receives adequate notice and a hearing. Because we conclude that Rule 32.2(b) is a
mandatory claims-processing rule, rather than a time-related directive, we reverse the money
judgments in this published opinion. Carman separately appeals two orders entered in her
ancillary proceedings below, in which she claims a superior interest in specific property forfeited
by Maddux. We affirm those orders in an unpublished appendix to this opinion.

I.

Maddux and Carman were indicted in 2014. The indictment included a notice of
forfeiture with a laundry list of specific real and personal property, which Maddux ultimately
agreed to forfeit. The indictment also gave notice of a forfeiture money judgment of “up to at
 No. 20-5972 United States v. Maddux, et al. Page 3

least $45,000,000.00, derived from the conspiracies, schemes to defraud and money laundering
and for which the defendants are jointly and severally liable.” R. 1 at 70. Maddux pleaded
guilty, and Carman went to trial. The two money judgments came in 2020, upon the
government’s renewed request for them in the district court.

Presentencing Proceedings. Carman was convicted by a jury in January 2016 on two
conspiracy counts, one to commit mail and wire fraud, and one to commit concealment money
laundering.1 The day after the jury rendered its verdict, the court held a hearing to discuss
forfeiture. During that hearing, the government stated that the only items of specific property
sought from Carman were two Cadillac Escalades purchased with proceeds of the scheme, items
that Carman agreed to forfeit. That left the issue of a money judgment, which the parties agreed
to submit on briefs. The government moved for a $34,934,514.12 money judgment as to
Carman (and for separate money judgments as to three other co-defendants, but not Maddux) in
late-February 2016.

Unlike Carman, Maddux pleaded guilty in May 2016 to multiple counts of conspiracy to
commit mail and wire fraud, money laundering, and defrauding the United States, as well as
three counts of making false statements. The government moved in mid-July 2016—roughly
nine weeks later and only six weeks prior to his sentencing—for a $45 million money judgment
against him.

About a month later, the government and Maddux submitted a joint proposed preliminary
order of forfeiture, in which Maddux agreed to forfeit the lengthy list of specific property
referenced above, but not a money judgment. The court entered that order on the day
of Maddux’s sentencing without incorporating a money judgment. The government’s two
money-judgment motions, both of which were fully briefed by July 2016, thus remained pending
prior to Maddux’s and Carman’s sentencings.

1
The district court later granted her motion for acquittal as to the money-laundering conspiracy.
 No. 20-5972 United States v. Maddux, et al. Page 4

Sentencings. Maddux and Carman were both sentenced on August 30, 2016. During
Carman’s hearing, the court failed to order (or even mention) a money judgment.2 The
government did not object to the omitted money judgment. Maddux’s sentencing tells a similar
story, during which the court forthrightly stated that it would “have to take up later” the issue of
“any amendment to any of these judgments to reflect any money judgments.” R. 623 at 7339.
Again, the government did not object.

Both of Maddux’s and Carman’s criminal judgments, which were entered the next day,
cryptically stated that they each forfeited “[a]ll items” listed as forfeitable in the indictment, but
neither specifically mentioned a money judgment. R. 536 at 4403; R. 541 at 4423.3 The
government’s motions for money judgments thus remained pending after Maddux’s and
Carman’s sentences became final. The government did not appeal the lack of money judgments
in either sentence. See generally Fed. R. Crim. P. 32.2(b)(4)(B).

Intervening Appeals. Both Carman and Maddux appealed their convictions and
sentences, and we affirmed in February 2019. Maddux, 917 F.3d at 443–46, 450–51. However,
in January 2017—five months after Carman’s sentencing and while her appeal was pending—the
district court finally granted in part the government’s motion for a preliminary forfeiture order as
to Carman, imposing a money judgment of about $17.5 million. For some reason not clear from
the record, however, the court did not issue a money judgment as to Maddux. The court
amended Carman’s judgment to reflect the new forfeiture order. Carman separately appealed
that order.

Reviewing that money judgment in a later-issued opinion, we held that Carman’s first
appeal of her convictions and sentence transferred adjudicatory authority from the district court
to this court over all aspects of Carman’s sentence. And, because forfeiture is part of the
sentence, we held that the district court lacked authority to enter the money judgment once

2
Instead, the court referenced only a potential fine, explaining that it “thought about imposing a fine, but”
opted not to, “based upon the volume of the items that were forfeited and the imprisonment that the Court has
imposed.” R. 624 at 7388.
3
The government, without explanation, now concedes that the reference to forfeiture in Carman’s judgment
was “over[-]inclusive.” Gvt. Br., p. 17 n.1.
 No. 20-5972 United States v. Maddux, et al. Page 5

Carman appealed her sentence. United States v. Carman, 933 F.3d 614, 617 (6th Cir. 2019). We
likewise rejected the government’s request to affirm Carman’s money judgment on so-called
pragmatic grounds, reasoning that “the government nowhere explains how the Criminal Rules
would permit entry of that order [on remand] over Carman’s objection, after her sentence was
not only imposed in the district court but affirmed on appeal.” Id. at 618. We vacated the money
judgment and remanded. Id.

Money Judgments Entered on Remand. After we vacated Carman’s money judgment and
remanded, the government renewed its motions for money judgments as to both Maddux and
Carman. They both opposed the motions, arguing that the court lacked authority under Rule 32.2
to modify their sentences (by adding additional forfeiture) long after those sentences became
final.

The district court disagreed, finding that “[t]he deadlines in Rule 32.2 are ‘time-related
directives,’ which are ‘“legally enforceable but do not deprive a judge or other public official of
the power to take the action to which the deadline applies if the deadline is missed.”’” R. 791 at
9830 (quoting United States v. Martin, 662 F.3d 301, 308 (4th Cir. 2011)). As long as Maddux
and Carman received “notice and [an] opportunity to be heard,” the court reasoned, it could
impose money judgments at any time. Id. at 9831 (quoting United States v. Schwartz, 503 F.
App’x 443, 448 (6th Cir. 2012)). It thus concluded: “[w]hile the niceties of Rule 32.2 were not
observed, both Defendants had ample notice of the United States’ intention to seek a forfeiture
money judgment and were not deprived of the opportunity to be heard in that regard.” Id.
at 9832. It imposed the two money judgments sought: $45 million as to Maddux and nearly
$17.5 million as to Carman. They now appeal.

II.

A forfeiture order, including a money judgment, is “part of the [defendant’s] sentence
in the criminal case.” 28 U.S.C. § 2461(c); see also Fed. R. Crim. P. 32.2(b)(4)(B); Libretti
v. United States, 516 U.S. 29, 38–39 (1995). And, once a court imposes a sentence, generally it
may not “change or modify that sentence unless such authority is expressly granted by statute.”
 No. 20-5972 United States v. Maddux, et al. Page 6

United States v. Hammond, 712 F.3d 333, 335 (6th Cir. 2013) (per curiam); see also 18 U.S.C.
§ 3582(c).

Federal Rule of Criminal Procedure 32.2 thus provides a rigid procedure to ensure that
any forfeiture order is correct before it becomes final at sentencing—which furthers interests in
due process and judicial economy. Whenever possible, the court “must promptly enter [after
guilt is established] a preliminary order of forfeiture setting forth the amount of any money
judgment . . . sufficiently in advance of sentencing to allow the parties to suggest revisions or
modifications before the order becomes final as to the defendant” at sentencing. Fed. R. Crim. P.
32.2(b)(2)(A)–(B), (b)(4)(A). Then, at sentencing, “[t]he court must include the forfeiture when
orally announcing the sentence or must otherwise ensure that the defendant knows of the
forfeiture.” Id. 32.2(b)(4)(B). Finally, the court “must . . . include the forfeiture order, directly
or by reference, in the judgment.” Id.

We review the interpretation of forfeiture laws and the Federal Rules of Criminal
Procedure de novo. United States v. Hampton, 732 F.3d 687, 690 (6th Cir. 2013); United States
v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005).

A.

As noted, the district court concluded that it could modify Maddux’s and Carman’s
sentences because, in its view, Rule 32.2(b)’s strictures are “time-related directives.” R. 791 at
9830 (citation omitted). The court adopted the Fourth Circuit’s conclusion that Dolan v. United
States, 560 U.S. 605, 611 (2010)—which held that a restitution-hearing deadline in the
Mandatory Victims Restitution Act (MVRA) is a time-related directive—applies equally to Rule
32.2(b), see Martin, 662 F.3d at 308; id. at 307 (“[W]e conclude that missing the deadline set in
Rule 32.2 does not deprive a district court of jurisdiction[.]”).

Dolan concerned the MVRA’s 90-day-hearing deadline. That provision provides that, if
the victim’s losses (a figure used to calculate restitution) cannot be determined prior to
sentencing, “the court shall set a date for the final determination of the victim’s losses, not to
exceed 90 days after sentencing.” Dolan, 560 U.S. at 607–08 (quoting 18 U.S.C. § 3664(d)(5)).
Because the district court held its restitution hearing after the 90-day mark, the issue was whether
 No. 20-5972 United States v. Maddux, et al. Page 7

the resulting restitution order could stand—where the MVRA was silent on “the consequences of
the missed deadline.” Id. at 610.

To answer that question, the Court considered the “statutory language,” “the relevant
context,” and what those two considerations say “about the purposes” of a given statutory or
rule-based deadline. Id. It summarized three general categories of deadlines, each of which
serve distinct purposes: (1) “jurisdictional” deadlines that may not be forfeited and, if missed,
“prevent[] the court from permitting or taking” a given action; (2) “ordinary ‘claims-processing
rules’” that may be forfeited but “regulate the timing of motions or claims brought before the
court”; and (3) “deadline[s] [that] seek[] speed by creating a time-related directive that is legally
enforceable but does not deprive a judge . . . of the power to take the action to which the deadline
applies.” Id. at 610–11. Considering the text, context, and purpose of the MVRA, the Court
concluded that the 90-day deadline is a flexible time-related directive, rather than a jurisdictional
backstop that “deprive[s] the court of the power to order restitution.” Id. at 611.

Although Dolan provides little direct guidance for the precise issue here4—what
separates time-related directives from claims-processing rules—our path is nonetheless well-
charted. When reviewing Carman’s first money judgment, we explained that “deadlines in court
rules are ‘nonjurisdictional,’” but they “of course remain enforceable, since they ‘assure relief to
a party properly raising them.’” Carman, 933 F.3d at 617 (quoting first Nutraceutical Corp.
v. Lambert, 139 S. Ct. 710, 714 (2019), then Eberhart v. United States, 546 U.S. 12, 19 (2005)
(per curiam)). For a deadline to assure relief, it may not be ignored when properly invoked; such
deadlines are “inflexible” and “unalterable.” Eberhart, 546 U.S. at 15, 19 (citation omitted). Put
differently, like jurisdictional deadlines, mandatory claims-processing rules bind courts and may
not be equitably tolled. See Nutraceutical, 139 S. Ct. at 714; United States v. Alam, 960 F.3d
4
Dolan faced a distinct question—whether the statutory deadline in the MVRA was jurisdictional. See 560
U.S. at 608 (holding that “a sentencing court that misses the 90-day deadline nonetheless retains the power to order
restitution” (emphasis added)); id. at 620. That framing made sense because Congress may, by statute, limit courts’
jurisdiction. See id. at 622 (Roberts, C.J., dissenting). Here, however, we know that Rule 32.2 is not jurisdictional,
because court rules “do not create or withdraw federal jurisdiction,” Kontrick v. Ryan, 540 U.S. 443, 453 (2004)
(citation omitted), so the only question is whether Rule 32.2 is nonetheless a mandatory claims-processing rule.
Thus, although we use Dolan’s rough framework—considering the text, structure, and purpose of Rule 32.2—to
answer that question, our analysis does not perfectly overlay Dolan’s. Further, Martin failed to perceive that
difference (among others, as we note throughout below), which led the court astray. See Martin, 662 F.3d at 311–13
(Gregory, J., dissenting).
 No. 20-5972 United States v. Maddux, et al. Page 8

831, 833–34 (6th Cir. 2020). And, “[b]y definition,” they “are not subject to harmless-error
analysis.” Manrique v. United States, 137 S. Ct. 1266, 1274 (2017). The “critical difference” is
that, unlike jurisdictional deadlines, claims-processing rules may be forfeited. Kontrick, 540
U.S. at 456.

Time-related directives, on the other hand, are the flexible yogis of court deadlines—they
can be forfeited, are subject to harmless-error review, and do not strictly bind courts. See Dolan,
560 U.S. at 611, 617. Why? Because their purpose is generally to seek speed for some extrinsic
reason—like ensuring that victims receive restitution sooner rather than later, see id. at 613—not
to ensure, as is usually true with claims-processing rules, that a given claim is made when it’s
best fit for adjudication, see, e.g., Eberhart, 546 U.S. at 19 (considering Rule 33(a)’s deadline for
filing motions for a new trial).

B.

Rule 32.2’s text, context, and purpose squarely place it in Dolan’s second category, as a
mandatory claims-processing rule. First, Rule 32.2(b) repeatedly uses the mandatory “must,”
directed mostly at the sentencing court, to command each step of the forfeiture process. See Fed.
R. Crim. P. 32.2(b)(1)(A), (b)(2)(A), (b)(2)(B), (b)(4)(B). When comparing the effect of the
“must” similarly “directed toward the court” in Rule 32(i)(4)(A)(ii), we noted that such language
“tends to impose unyielding procedural requirements ‘impervious to judicial discretion.’”
United States v. Dowl, 956 F.3d 904, 908 (6th Cir. 2020) (per curiam) (quoting Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)). Calling Rule 32.2(b)’s
procedures time-related directives, however, effectively erases its mandatory language.

To be sure, Dolan reasoned that the MVRA’s use of the emphatic “shall” did not itself
render the 90-day deadline mandatory, because the MVRA failed to “specify a consequence for
noncompliance.” Dolan, 560 U.S. at 611 (citation omitted). And Rule 32.2(b)’s text, like the
MVRA, stops short of expressly specifying a consequence for missing its deadlines. It does not,
for example, go so far as to say, “if a preliminary forfeiture order is not entered before
sentencing, and forfeiture is not imposed at sentencing, then forfeiture may not be imposed at all,
absent a successful appeal by the government.” Cf. 18 U.S.C. §§ 3161(c), 3162(a)(2) (requiring,
 No. 20-5972 United States v. Maddux, et al. Page 9

for missing the Speedy Trial Act deadline, dismissal of the indictment). But see Eberhart, 546
U.S. at 19 (deeming Rule 33(a)’s deadline a claims-processing rule, despite the lack of similar
consequential language).

But whatever, if anything, the text of Rule 32.2(b) lacks, its structure makes up the
difference—a structure that dovetails with other rules aimed at giving sentences finality. For one
thing, Rule 32.2(b)(4)(A) provides that “[a]t sentencing,” any preliminary forfeiture order
“becomes final as to the defendant.” Final means final, so Rule 32.2(b) envisions only one bite
at the apple—unless Rules 35(a) or 36 permit a later, smaller bite after sentencing. See Fed.
R. Crim. P. 32.2(b)(2)(B) advisory committee’s notes to 2009 amendments (explaining that, after
sentencing, the rules provide “only very limited authority to correct” a forfeiture order, and, if an
“error or omission” in the order “do[es] not fall within Rules 35(a) or 36, . . . the parties may be
left with no alternative to an appeal, which is a waste of judicial resources”). For another, Rule
32.2(b) squarely contemplates a “court’s failure to enter a[] [preliminary forfeiture] order” by
sentencing—a failure that it directs “the government” to appeal once “judgment is entered.” Id.
32.2(b)(4)(C) (emphases added); United States v. Shakur, 691 F.3d 979, 987 (8th Cir. 2012)
(explaining that “‘the forfeiture order’ [as used in Rule 32.2(b)(4)(C)] obviously means a
preliminary forfeiture order entered” under Rule 32.2(b)(2)).

All of that is quite unlike the MVRA’s deadline, which does not wrap up restitution under
a single bow at sentencing, but instead sets an outer-bound limit (90 days) after sentencing for
the restitution hearing, if that extra time is needed. See 18 U.S.C. § 3664(d)(5). Rule 32.2(b)
envisions an entirely different endpoint (the sentencing hearing) and provides no similar
workaround; rather, it requires the court to include forfeiture in the sentence and, as noted, all but
requires the government to appeal when that doesn’t happen. See Fed. R. Crim. P. 32.2(b)(4)(C);
cf. id. 32.2(b)(2)(C) (authorizing the entering of—but only if done “before sentencing”—a
“general” forfeiture order that defers calculating “the total amount of the money judgment” until
a later date). That key difference means at least one thing: if forfeiture is not included in
the sentence per Rule 32.2(b), it may be added later only if Rules 35(a) or 36 allow for it (or if
the government timely appeals and wins a resentencing). See id. 32.2(b)(4)(B)–(C); Shakur,
691 F.3d at 987.
 No. 20-5972 United States v. Maddux, et al. Page 10

At any rate, unlike the consequence feared in Dolan (depriving victims of restitution for a
blown deadline they did not cause), the consequence here (requiring a government appeal to
correct a Rule 32.2(b) error that cannot be otherwise corrected) is hardly an anomaly requiring
express recognition in Rule 32.2(b)’s text. It’s exactly what happens when any other aspect of
punishment, even a mandatory one, is errantly omitted from a sentence. See Shakur, 691 F.3d at
988 n.6 (“‘[O]nce a sentence has been imposed, the trial judge’s authority to modify it is’ limited
to Rule 35.” (quoting United States v. Addonizio, 442 U.S. 178, 189 n.16 (1979))); cf. Greenlaw
v. United States, 554 U.S. 237, 248, 252–53 (2008) (holding that a court of appeals may not
impose sua sponte a mandatory-minimum prison term, when errantly omitted from the sentence,
absent the government’s cross-appeal). All told, given these differences between the MVRA and
Rule 32.2(b), we must give effect to its mandatory language.

Second, if claims-processing rules “regulate the timing of motions or claims brought
before the court,” Dolan, 560 U.S. at 610, it’s hard to imagine a better example of that than Rule
32.2. The rule regulates every stage of the criminal forfeiture process—from requiring
a forfeiture notice in the indictment, to determining the specific property (or the amount of
any money judgment) subject to forfeiture, to issuing a preliminary forfeiture order, to
including the forfeiture order in the sentence and judgment, to litigating third parties’ interests in
to-be-forfeited property. See generally Fed. R. Crim. P. 32.2(a)–(c). This A-to-Z roadmap for
criminal forfeiture requires that “certain procedural steps [be taken] at certain specified times.”
Manrique, 137 S. Ct. at 1272 (citation omitted). It is the quintessential claims-processing rule.

Third, Rule 32.2(b)’s undoubtable purpose is to ensure defendants receive due process
paired with finality and efficiency. Contrast that with the purpose of the MVRA’s 90-day
deadline, which “seeks speed primarily to help the victims of crime and only secondarily to help
the defendant.” Dolan, 560 U.S. at 613. Rule 32.2(b) flips that script—it arms defendants with
procedures to correct preliminary forfeiture orders before sentencing. And this practice, when
followed, ensures correct final forfeiture orders, which in turn preserves scarce judicial
resources. See Fed. R. Crim. P. 32.2(b)(2)(B) advisory committee’s notes to 2009 amendments
(explaining that it’s “undesirable” to delay entering preliminary orders until sentencing, given
the limited authority to correct them thereafter and the costs owing to appeals); United States
 No. 20-5972 United States v. Maddux, et al. Page 11

v. Marquez, 685 F.3d 501, 509 (5th Cir. 2012) (“These procedures are not empty formalities.”);
Shakur, 691 F.3d at 988 (similar). In short, Rule 32.2(b) aims to culminate forfeiture at
sentencing; it follows that, once sentencing occurs, defendants can be sure no more forfeiture
awaits them—just like they can be sure that no other new punishment does. See Fed. R. Crim. P.
32.2(b)(4)(A); Greenlaw, 554 U.S. at 252–53. Those substantive purposes in fairness and
finality are far removed from the MVRA deadline’s more circumscribed purpose: to compensate
victims sooner rather than later.

Fourth, we see little practical downside to deeming Rule 32.2(b) a claims-processing
rule. Unlike in Dolan, where strictly reading the 90-day deadline would have necessarily
foreclosed restitution awards to “the victims of crime—who likely bear no responsibility for the
deadline’s being missed,” 560 U.S. at 613–14, no similar risk is present here, for two reasons.

Most importantly, the government’s timely appeal of a preserved Rule 32.2(b) error will
allow for corrections as a matter of course, particularly since forfeiture is mandatory. See
28 U.S.C. § 2461(c); United States v. Smith, 749 F.3d 465, 488 (6th Cir. 2014). And the
government’s failure to appeal is its own fault, not the fault of a blameless, nonparty victim.
Further, the purpose of forfeiture is to punish the defendant by stripping him of unlawful gains;
restitution’s purpose is distinct—to “restore the victim’s loss.” United States v. Boring, 557 F.3d
707, 714 (6th Cir. 2009). Forfeited property thus ordinarily ends up in the hands of the
government, not victims. And while certain federal officials have discretion to transfer forfeited
property “as restoration to any victim of the offense,” 18 U.S.C. § 981(e)(6), that baked-in (and
seemingly unfettered) discretion attenuates any potential impact on victims, who thus only might
receive forfeited property5—quite unlike the restitution mandatorily destined for victims under
the MVRA. See generally United States v. Joseph, 743 F.3d 1350, 1355 (11th Cir. 2014).

As all of that suggests, we are not persuaded by the cases (by our eyes, just two published
ones) that have called Rule 32.2(b) a time-related directive. See United States v. McIntosh,
24 F.4th 857, 860 (2d Cir. 2022); Martin, 662 F.3d at 309. Martin fundamentally erred by

5
See 2 David B. Smith, Prosecution and Defense of Forfeiture Cases ¶ 14.08(3)(d) (Matthew Bender)
(“Such procedures are time consuming and do not necessarily result in the victims receiving the forfeited
property.”).
 No. 20-5972 United States v. Maddux, et al. Page 12

minimizing the finality secured by Rule 35(a)’s 14-day deadline for correcting clear sentencing
errors—a deadline that Rule 45(b)(2) guards as sacrosanct. See Martin, 662 F.3d at 308 n.13
(noting that, if “it was not error under Rule 35” to order restitution after the deadline in Dolan,
“it was similarly not error under Rule 35 for the district court . . . [to] miss[] the deadline
governing forfeiture”).

What Martin failed to grasp is that the MVRA, by statute, effectively extends Rule
35(a)’s amendment period (but only as to determining the victim’s losses) to 90 days after
sentencing. See 18 U.S.C. § 3664(d)(5). Rule 32.2(b), however, does not. The only comparable
option is a “general” forfeiture order, but even that must be entered “before sentencing,” and the
Advisory Committee cautions that this option should be reserved “only [for] unusual
circumstances and not [used] as a matter of course.” Fed. R. Crim. P. 32.2(b)(2)(C) advisory
committee notes to 2009 amendment. Rule 32.2(b) instead aims to wrap forfeiture at sentencing,
subject to Rules 35(a) and 36. Therefore, Martin’s analogy to Dolan is fatally flawed. See
Shakur, 691 F.3d at 988 n.6 (expressing “reluctan[ce] to follow” Martin because of this); Martin,
662 F.3d at 311 (Gregory, J., dissenting) (noting “the majority’s ruling essentially reads Rule 35
out of the” Criminal Rules). McIntosh accepted Martin’s reasoning, and it similarly elided the
Rule 35(a) issue. See McIntosh, 24 F.4th at 860, 862.

Because we must give effect to Rule 35(a), we reject Martin and McIntosh.6 We instead
side with Shakur—which reasoned that, where a district court entered neither preliminary nor
final forfeiture orders “before entry of final judgment and passage of the fourteen-day
corrections period granted by Rule 35,” such an omission cannot be corrected later under
Rule 36. Shakur, 691 F.3d at 987. The court similarly recognized that due process requires not
only adequate notice, but also “procedures to contest the deprivation of property rights,” id. at
988 (citation and emphasis omitted)—procedures the defendant was denied by the district court’s

6
Even if we agreed, however, McIntosh and Martin are factually distinguishable from this case, so their
reasoning can do little to guide ours. Most importantly, the district courts in both cases orally ordered forfeiture at
sentencing (or, as in Martin, at the forfeiture hearing immediately before sentencing). McIntosh, 24 F.4th at 859;
Martin, 662 F.3d at 305. The same is true for Schwartz, which appears to be this court’s only prior case squarely
facing a Rule 32.2(b) error. See Schwartz, 503 F. App’x at 449. There, the defendant stipulated in his plea
agreement to the money judgment’s sum, and the money judgment was ordered at sentencing. Id. None of those
cases faced the much more egregious fact pattern here: where the money judgments were not ordered prior to or
during sentencing.
 No. 20-5972 United States v. Maddux, et al. Page 13

“wholesale violation of” Rule 32.2(b)’s “mandates,” id. Shakur is factually analogous to this
case, and its reasoning is persuasive.7

In sum, the text, context, and purpose of Rule 32.2(b) all lead to an inevitable conclusion:
it is a mandatory claims-processing rule—one that ensures forfeiture is resolved fairly and fully
before becoming final, which preserves judicial resources by avoiding wasteful appeals over
avoidable errors. Once a criminal sentence is imposed, the judgment is final, both as to what it
includes and what it lacks, subject to Rules 35(a) and 36. If the government wishes to “enlarge
[the] sentence” with forfeiture omitted from the sentence, it must timely appeal. Greenlaw,
554 U.S. at 252–53; see Fed. R. Crim. P. 32.2(b)(4)(B).

C.

That all but resolves this appeal, because the district court entirely failed to follow Rule
32.2(b)’s requirements. It did not, for example, enter a preliminary forfeiture order before either
Maddux’s or Carman’s sentencing hearings, nor did it unambiguously defer doing so in a general
order entered before those sentencings. See Fed. R. Crim. P. 32.2(b)(2)(B), (b)(2)(C). Such
failures, standing alone, might be remedied where forfeiture is ordered at least during
sentencing—because that necessarily “ensure[s] that the defendant knows of the forfeiture at
sentencing.” Id. 32.2(b)(4)(B).

But the district court failed to do even that bare minimum: it didn’t discuss a money
judgment during Carman’s sentencing, instead noting only that it had not “signed th[e]
[government’s] preliminary [forfeiture] order yet.” R. 624 at 7388. And it expressly deferred
ruling on “any money judgments” during Maddux’s sentencing, saying that it would “have to
take up later” the issue of “any amendment to any of these judgments to reflect” that. R. 623 at
7339. Those equivocations left not only the amount of the money judgments, but also whether
they would be entered, up in the air. We thus cannot say that the court “otherwise ensure[d]
that” both Maddux and Carman knew—in the same way they would otherwise know had their
money judgments been “orally announc[ed]” in their sentences—that they would still be

7
But, to the extent that Shakur considered Rule 32.2’s mandates jurisdictional—which is suggested by its
statement that the district court lacked “power to enter” the forfeiture order, Shakur, 691 F.3d at 989—we disagree,
see Carman, 933 F.3d at 617 (noting that deadlines in court rules are “nonjurisdictional” (citation omitted)).
 No. 20-5972 United States v. Maddux, et al. Page 14

subjected to money judgments. Fed. R. Crim. P. 32.2(b)(4)(B). And the time to appeal that
failure began to run when their judgments issued, per Rule 32.2(b)(4)(C).

Since the procedures in Rule 32.2(b) were not followed, and the government did not
timely appeal or otherwise object to correct the court’s errors, we can affirm these money
judgments only if Rules 35(a) or 36 authorized them. They did not. Rule 36 authorizes the
correction, at any time, of only clerical errors—such as failing to reference an already-issued
forfeiture order in the written judgment. See Fed. R. Crim. P. 32.2(b)(4)(B). But clerical errors
do not include “unexpressed sentencing expectations, or . . . errors made by the court itself.”
United States v. Robinson, 368 F.3d 653, 656 (6th Cir. 2004) (citation omitted). The district
court’s deferral can be described as only that—a yet-to-be-determined aspect of sentencing. That
was no clerical error, so Rule 36 does not apply. See Shakur, 691 F.3d at 989.

Rule 35(a) is a bit more forgiving—it authorizes the correction of “arithmetical,
technical, or other clear error”—but only if done “[w]ithin 14 days after sentencing.” Fed.
R. Crim. P. 35(a); see also id. 45(b)(2) (forbidding extensions of “time to take any action under
Rule 35, except as stated in that rule”). The money judgments here, however, were entered years
after Maddux’s and Carman’s sentencings, so Rule 35(a) does not apply either.

The government’s arguments for affirmance are unconvincing. It first argues that
because “Rule 32.2(b)’s timing requirements are not jurisdictional,” courts may “enter a
forfeiture order post-sentencing.” Gvt. Br., p. 13. But, as we hold today, Rule 32.2(b) is a
mandatory claims-processing rule. Such rules are “inflexible,” even if not jurisdictional. E.g.,
Eberhart, 546 U.S. at 19. Their nonjurisdictional status means only that they may be forfeited if
not timely invoked. Id. And the government here, by not timely appealing or otherwise
objecting to the district court’s failure to issue money judgments once Maddux’s and Carman’s
sentences became final, see Fed. R. Crim. P. 32.2(b)(4)(C), forfeited the opportunity to seek such
punishment, see Greenlaw, 554 U.S. at 252–53. Just because forfeiture is mandatory does not
change that conclusion. See id.

The government suggests that the onus was on Maddux and Carman to “object to or seek
to amend their judgments” to include the money judgments. Gvt. Br., p. 17. That idea is at odds
 No. 20-5972 United States v. Maddux, et al. Page 15

with our adversarial system, which burdens the government to present and prove the arguments
warranting criminal punishment. See generally Greenlaw, 554 U.S. at 243–44. It’s also at odds
with Rule 32.2(b)(4)(C)’s text, which directs the government to appeal “the court’s failure to
enter an order . . . [once] judgment is entered.” Hence, the government’s related argument that it
had “nothing to appeal”—because its money-judgment motions remained pending after Maddux
and Carman were sentenced—is foreclosed by the text of the rule. Gvt. Br., p. 18.

Lastly, the government suggests that Maddux’s and Carman’s written judgments cured all
Rule 32.2 irregularities. See Gvt. Br., pp. 17–18. That is, both judgments contained a single
cryptic (and, as to Carman, overinclusive) sentence, stating that each defendant forfeited “[a]ll
items” under the indictment’s notice of forfeiture. R. 536 at 4403; R. 541 at 4423. The
government argues those references “demonstrated the court’s intention to enter a final forfeiture
judgment post-sentencing.” Gvt. Br., p. 17. The government nowhere explains what authorized
that tack. At any rate, those general references did nothing to correct the court’s most basic
failure—not including the money judgments in the oral sentences or otherwise ensuring that both
Maddux and Carman knew that it would definitively impose money judgments (and at what
amount). Fed. R. Crim. P. 32.2(b)(4)(B). By the time their written judgments were entered, that
failure became final, and the government’s decision to not cross-appeal was fatal.

III.

For these reasons and those set forth in the unpublished appendix to this opinion, we
reverse Maddux’s and Carman’s money judgments, and we affirm the orders separately appealed
by Carman.