[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 00-13237 ELEVENTH CIRCUIT
MAY 22, 2003
Non-Argument Calendar
THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00302-CR-T-24C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE PEASE,
a.k.a Magic,
Defendant-Appellant,
BEVERLY REEDY,
LATOYA PEASE,
Interested Parties,
Appellants.
Appeal from the United States District Court
for the Middle District of Florida
(May 22, 2003)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
TJOFLAT, Circuit Judge:
Title 21 of the United States Code provides that a person convicted of a
federal drug felony forfeits to the United States “(1) any property constituting, or
derived from, any proceeds the person obtained . . . as the result of such [crime],”
and “(2) any of the person’s property used . . . to commit, or to facilitate the
commission of, such [crime].” 21 U.S.C. § 853(a)(1)-(2). The forfeiture may be
obtained in a civil in rem proceeding or in a criminal in personam proceeding. See
United States v. Gilbert, 244 F.3d 888, 918-20 (11th Cir. 2001) (discussing the
differences between civil and criminal forfeiture). In a criminal proceeding, the
United States acquires the defendant’s interest in the property, which is described
in the indictment, if the Government establishes that such interest constitutes §
853(a) property, and the district court thereafter enters a final judgment
adjudicating the defendant’s guilt, imposing the defendant’s sentence, and
ordering forfeiture of the defendant’s interest. 21 U.S.C. § 853(a); 18 U.S.C. §
3554; Fed. R. Crim P. 32.2.1
Once the defendant’s interest in the subject property is forfeited by the entry
of a final judgment, any person (other than the convicted defendant) claiming an
1
In this case, we apply the predecessor to Rule 32.2 – Rule 32 – because Rule 32 was the
Rule in effect on the date of the indictment which, in addition to charging criminal offenses,
sought forfeiture.
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interest in the property may commence an ancillary proceeding in the district court
by petitioning the court pursuant to 21 U.S.C. § 853(n)(2) to enter an order
declaring that his or her interest is superior to the defendant’s interest (which the
final judgment forfeited to the United States).2 To prevail, the petitioner must
establish by a preponderance of the evidence that his or her interest in the subject
property was superior to any right, title, or interest the defendant may have
possessed at the time he or she committed the offense giving rise to the forfeiture,
or that he or she was a bona fide purchaser for value. 21 U.S.C. § 853(n)(6).3
2
Section 853(n)(2) provides:
Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the United States
pursuant to this section [, i.e., § 853(a),] may, within thirty days of
the final publication of notice or his receipt of notice under
paragraph (1), whichever is earlier, petition the court for a hearing
to adjudicate the validity of his alleged interest in the property.
The hearing shall be held before the court alone, without a jury.
3
Section 853(n)(6) provides:
If, after the hearing, the court determines that the petitioner has
established by a preponderance of the evidence that –
(A) the petitioner has a legal right, title, or interest
in the property, and such right, title, or interest
renders the order of forfeiture invalid in whole or in
part because the right, title, or interest was vested in
the petitioner rather than the defendant or was
superior to any right, title, or interest of the
defendant at the time of the commission of the acts
which gave rise to the forfeiture of the property
under this section; or
(B) the petitioner is a bona fide purchaser for value
of the right, title, or interest in the property and was
at the time of purchase reasonably without cause to
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In the scenario before us, Andrew Pease (“the defendant”) pled guilty on
September 11, 1998, to conspiracy to possess with intent to distribute cocaine.4
He pled pursuant to a plea agreement in which he agreed to forfeit to the United
States his interest in certain real and personal property. After the plea was entered,
but before sentencing, the court entered a preliminary order of forfeiture on
January 4, 1999 pursuant to Rule 32 of the Federal Rules of Criminal Procedure.5
At sentencing, however, which took place on January 29, 1999, the court failed to
make the preliminary order of forfeiture a part of its judgment. The judgment the
court entered recited that the defendant had been sentenced to prison for 360
months and five years’ supervised release, but was entirely silent as to forfeiture.
The defendant thereafter appealed his conviction and sentence. The Government
could have cross-appealed the defendant’s sentence under 18 U.S.C. § 3742(b) –
specifically, the district court’s failure to include an order of forfeiture in its final
judgment – but did not do so. We affirmed the defendant’s conviction and
sentence on March 1, 2001. United States v. Pease, 240 F.3d 938 (11th Cir. 2001).
believe that the property was subject to forfeiture
under this section;
the court shall amend the order of forfeiture in accordance with its
determination.
4
See 21 U.S.C. §§ 841(a)(1), 846.
5
See infra Part II.A for the text of the Rule.
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Our mandate issued on April 25, 2001.
I.
In September 1999, while the defendant’s appeal was pending in this court,
the Government, drawing on the preliminary order of forfeiture for its authority,
published a notice informing third parties that the property described in the
preliminary order had been forfeited to the United States and of their right to
petition the district court pursuant to 21 U.S.C. § 853(n)(2), (6) for a declaration
that they held an interest in such property and that their interest was superior to the
defendant’s (forfeited) interest. On September 27, 1999, Latoya Pease (“Pease”)
and Beverly Reedy (“Reedy”), the defendant’s sister and mother, respectively,
filed § 853(n)(2) petitions with the district court,6 claiming an interest in some of
the property described in the preliminary order of forfeiture.7 The same day, the
defendant, claiming an interest in three items listed in the preliminary order, also
6
Pease and Reedy appeared through counsel.
7
Pease claimed an interest in the orange 1995 Chevrolet Suburban identified in
paragraph i of the preliminary forfeiture order. Reedy claimed an interest in three items
identified in the preliminary forfeiture order: property located at 808 Daphne Drive, Brandon,
Florida (item b); a red 1992 Chevrolet Suburban (item f); and a white 1996 Chevrolet pickup
truck (item j). The Government later withdrew its forfeiture claims for the Daphne Drive
property and the 1992 Suburban. Therefore, only the 1996 Chevrolet pickup truck is at issue in
this appeal. Several other persons and entities also filed § 853(a) petitions. They either
abandoned their petitions or entered into stipulations with the Government as to the disposition
of their claimed interests. None of these petitions are before us, or are otherwise relevant, in this
appeal.
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filed a § 853(n)(2) petition.8 Shortly thereafter, the Government moved to strike
the defendant’s petition on the ground that § 853(n)(2) prohibits a convicted
defendant from claiming an interest in property that had been forfeited.
On November 29, 2000, while the petitioners’ claims and the Government’s
motion to strike were pending, the defendant moved the district court to dismiss
the ancillary proceeding. He contended that because the judgment in his criminal
case did not include a final order of forfeiture, the court lacked the authority to
entertain a § 853(n) ancillary proceeding. Pease and Reedy subsequently moved
the court to dismiss the ancillary proceeding on the same ground. Realizing that
the petitioners’ motions might have merit – that the court’s authority to hold an
ancillary hearing depended on the inclusion of a final order of forfeiture as part of
the judgment entered in the defendant’s criminal case – the Government attempted
to avoid the problem the petitioners posed. Citing Rule 36 of the Federal Rules of
Criminal Procedure, which authorizes a district court to correct “[c]lerical
mistakes in judgments,” the Government moved the district court to amend the
judgment in the defendant’s case to include a final order of forfeiture mirroring the
8
Acting pro se, the defendant claimed an interest in three items listed in the preliminary
forfeiture order: property located at 4105 North 9th Street, Tampa, Florida (item a); property
located at 808 Daphne Drive, Brandon Florida (item b); and a 1997 Yamaha Exciter Speedboat
(item e).
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preliminary order of forfeiture the court entered on January 4, 1999.
The district court referred the § 853(n)(2) petitions and the Government’s
Rule 36 motion to a magistrate judge, who held an evidentiary hearing on the
merits of the petitions and considered whether the relief the Government was
seeking constituted the correction of a “clerical mistake” within the intendment of
Rule 36. At the conclusion of the hearing, the magistrate judge issued a report and
recommendation which recommended that the district court grant the
Government’s motion and deny the § 853(n)(2) petitions. The magistrate judge
concluded that Pease and Reedy had failed to satisfy the burden of proof
prescribed by § 853(n)(6), and that the statute barred the defendant from claiming
his interest in the forfeited property.9 On June 6, 2000, the district court adopted
the magistrate judge’s recommendations, substantively amended the judgment in
the defendant’s case, and denied the petitioners’ claims.10 All three petitioners
now appeal.11
9
See supra notes 2-3.
10
Although the district court granted the Government’s motion, it did not issue an
amended judgment. We assume that the court treated its ruling as having amended the judgment,
even though the court did not notify the defendant of his right to appeal the judgment, as
amended, as required by Rule 32(c)(5) of the Federal Rules of Criminal Procedure.
11
Because, as noted in the text supra, § 853(n)(2) precludes the defendant from bringing
an ancillary proceeding to obtain a determination of his interest in the forfeited property, and
because our disposition of this appeal does not require that we consider whether the defendant
has standing to pursue his interest in the subject property in the unique circumstances of this
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II.
This appeal presents two legal questions. First, does the law require that a
criminal forfeiture be made part of the judgment entered in the case, in which the
court adjudicates the defendant’s guilt and imposes sentence? Second, if the
answer to that question is yes, does the district court’s failure to include in its
judgment a forfeiture order (which the parties’ plea agreement called for) amount
to a “clerical mistake” within the meaning of Rule 36 of the Federal Rules of
Criminal Procedure?12 We address these questions in order.
A.
The answer to the first question is clear. The United States cannot acquire a
convicted defendant’s interest in property forfeited under 21 U.S.C. § 853(a)
unless and until the district court orders the interest forfeited as part of its
judgment in the defendant’s case. Section 853 is part of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., and states that
case, we conclude, for sake of discussion, that the defendant’s petition is barred. Our reference
to “appellants,” therefore, refers to Pease and Reedy.
12
The version of Rule 36 in effect at the time of the indictment provides:
Clerical mistakes in judgments, orders or other parts of the record
and errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as
the court orders.
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“[t]he court, in imposing sentence . . . shall order, in addition to any other sentence
imposed pursuant to [Subchapter I] of [Chapter 13, Drug Abuse Prevention and
Control,] that the person forfeit to the United States all property described in [§
853(a)(1)-(2)].” 13 United States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001)
(“[C]riminal forfeiture is part of a defendant’s sentence.”); see also United States
v. L’Hoste, 609 F.2d 796, 812-13 (5th Cir. 1980) (holding that forfeiture should be
ordered as part of a defendant’s sentence).14 In 1972, Rule 32 of the Federal Rules
of Criminal Procedure was amended to provide a procedure for including an order
of forfeiture as part of the defendant’s sentence. See Fed. R. Crim. P. 32(d)(2)
advisory committee’s notes. In 1996, the Rule was amended as follows to
authorize the district court to enter a preliminary order of forfeiture after the return
13
In enacting the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., Congress
replicated this requirement – that forfeiture occurs when the district court includes an order of
forfeiture, as part of the defendant’s sentence, in its judgment – in 18 U. S.C. § 3554:
The court, in imposing sentence on a defendant who has been
found guilty of an offense described in . . . [Chapters II or III] of
the Comprehensive Drug Abuse Prevention and Control Act of
1970 shall order, in addition to the sentence that is imposed
pursuant to the provisions of section 3551, that the defendant
forfeit property to the United States. . . .
14
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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of a jury verdict of forfeiture or a plea of guilty providing for forfeiture:15
If a verdict contains a finding that property is subject to a
criminal forfeiture, or if a defendant enters a guilty plea
subjecting property to such forfeiture, the court may
enter a preliminary order of forfeiture after providing
notice to the defendant and a reasonable opportunity to
be heard on the timing and form of the order. The order
of forfeiture shall authorize the Attorney General to seize
the property subject to forfeiture, to conduct any
discovery that the court considers proper to help identify,
locate, or dispose of the property, and to begin
proceedings consistent with any statutory requirements
pertaining to ancillary hearings and the rights of third
parties. At sentencing, a final order of forfeiture shall be
made part of the sentence and included in the judgment. .
..
Fed. R. Crim. P. 32(d)(2) (emphasis added).
The issuance of a preliminary order of forfeiture under Rule 32(d)(2) does
not relieve the district court of the obligation to include an order of forfeiture in its
judgment if forfeiture to the United States is to come to fruition – that is, the
Government actually acquires the defendant’s interest in the subject property.
This becomes clear when we note that a third party’s right to petition the district
court for an order declaring that its interest in the subject property is superior to
15
The version of Rule 32, as amended in 1996, was in effect at the time of the
defendant’s indictment.
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the defendant’s interest (if any) does not come into being until the Government,
“[f]ollowing the entry of an order of forfeiture under this section [, i.e., § 853(a),]
publish[es] notice of the order and its intent to dispose of the property in such a
manner as the Attorney General may direct.” 21 U.S.C. § 853(n)(1). “[W]ithin
thirty days of the final publication or his receipt of notice . . . whichever is earlier,
[the third party may] petition the court for a hearing to adjudicate the validity of
his alleged interest.” Id. § 853(n)(2). If the third party fails to file a petition
within thirty days of such notice, “the United States shall have clear title to
property that is the subject of the order of forfeiture and may warrant good title to
any subsequent purchaser or transferee.” Id. § 853(n)(7). If, as the Government
contends in this case, a third party’s right to petition the court comes into existence
when, as in this case, it publishes notice pursuant to a preliminary order of
forfeiture, then § 853(n)(1)’s reference to the “entry of an order of forfeiture under
this section,” i.e., § 853(a), is effectively rewritten to provide that the Attorney
General may issue a § 853(n)(1) notice pursuant to either a preliminary order of
forfeiture or an order of forfeiture issued at sentencing, as part of the court’s
judgment.
Under the scenario the Government advances here – where the Attorney
General may proceed pursuant to either order – suppose that prior to the
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defendant’s sentencing and the entry of judgment, (1) the district court enters a
preliminary order of forfeiture, (2) the Attorney General publishes a § 853(n)(1)
notice, (3) third parties file § 853(n)(2) petitions, (4) the court hears the petitions
and, in accordance with § 853(n)(6), rejects the parties’ petitions, and (5), in
accordance with § 853(n)(7), the court grants the United States “clear title to the
property that is the subject of the order of forfeiture.” Suppose further that, as is
the case here, the court does not include in its judgment, as part of the defendant’s
sentencing package, an order of forfeiture. In that case, the § 853(n) proceedings
would have gone for naught. Or suppose that subsequent to the entry of the
preliminary order of forfeiture, the district court, invoking its authority under Rule
29(b) of the Federal Rules of Criminal Procedure, grants the defendant’s motion
for judgment of acquittal on the count(s) of the indictment which provided the
predicate for forfeiture, or the court, invoking Rule 33 of the Federal Rules of
Criminal Procedure, grants the defendant a new trial on the same counts. The
result would be the same as it is in the instant scenario – the § 853(n) ancillary
proceedings would have gone for naught. What’s more, the court would have
wasted its judicial and parajudicial resources and put the parties to an expense they
should not have been required to incur.
Rule 32(d)(2), as noted above, provides that if the court issues a preliminary
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order of forfeiture, the Attorney General may, among other things, “begin
proceedings consistent with any statutory requirements pertaining to ancillary
hearings and the rights of third parties.” The untoward scenarios we have
portrayed – where the district court issues a preliminary order of forfeiture but for
one reason or another does not include an order of forfeiture as part of the
defendant’s sentencing package and its judgment – would, in our view, be
inconsistent with the “statutory requirements” of 18 U.S.C. § 3554, 21 U.S.C. §
853, and Rule 32(d)(2)’s requirement that, if forfeiture is to be granted to the
United States, the defendant’s judgment must contain an order of forfeiture, and
our teachings in United States v. Gilbert. In sum, our answer to the first question
– must criminal forfeiture be made a part of the judgment in the defendant’s case –
is yes.
Anticipating this conclusion, the Government urges us to affirm the district
court’s rejection of appellants’ claims to the subject property, contending that our
failure to do so would “subvert the intent of the plea agreement and the purpose of
the forfeiture statutes to divest criminals of their ill-gotten gains.” Government’s
Supp. Ltr. Bf. at 3. What the Government overlooks is that an affirmance would
yield the same result as a reversal. If we affirm the district court, the appellants
will take nothing; but, neither will the Government. The reason why the
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Government will take nothing is that due to the absence of a forfeiture order in the
judgment entered in the defendant’s case, the United States did not acquire the
defendant’s interest in the subject property. In short, the parties would return to
square one – their pre-indictment positions.16 The result will be the same if we
reverse the district court’s decision; the parties will be restored to their pre-
indictment positions.17 This brings us to the question of whether the district
court’s amendment of the judgment in the defendant’s case to include forfeiture as
part of the defendant’s sentence constituted a proper exercise of the court’s
authority, under Rule 36 of the Federal Rules of Criminal Procedure, to remedy
clerical errors.
B.
Rule 36 authorizes the district courts to correct “[c]lerical mistakes in
judgments . . . arising from oversight or omission . . . at any time.” In this case,
the oversight or omission was the Government’s, not the district court’s. The
prosecutor simply forgot to ask the court during the sentencing hearing to provide
16
We intimate no view as to whether the Government could successfully pursue civil
forfeiture of the property, an in rem proceeding against the property pursuant to 21 U.S.C. § 881.
See Gilbert, 244 F.3d at 918-20.
17
Again, we intimate no view as to whether the Government could successfully pursue
civil forfeiture.
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as part of the sentencing package a provision that the defendant forfeit to the
United States his interest in certain properties.18 For purposes of this appeal,
18
The record of the defendant’s sentencing hearing contains no evidence that the sentence
the court announced from the bench included a final order of forfeiture. To the contrary, the
prosecutor appears to have mistakenly believed that the Government should seek a final order of
forfeiture after sentencing.
Prosecutor: Judge while it’s true that we have forfeiture language and we have
filed a bill of particulars I just looked through the file, there is no final order of
forfeiture, and although that may be encumbered, we don’t have it right now.
Court: I don’t think there’s ever been a motion.
Prosecutor: No. No, and as I understand, they do that after, uh – after today’s
hearing. . . .
Therefore, in this case, we are not confronted with a factual scenario in which the court’s written
judgment differs from the sentence the court announced from the bench. United States v.
Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003) (noting that an oral sentence controls when it is
in conflict with the written judgment of conviction) (citing United States v. Jones, 289 F.3d
1260, 1264 n.5 (11th Cir. 2002) and United States v. Khoury, 901 F.2d 975, 977 (11th Cir.
1990)).
It is apparent from the above remarks that the prosecutor believed that the defendant’s
sentencing could take place on two occasions. On the first occasion, the court would sentence
the defendant to prison (or, if the law permitted it, to probation), and impose a fine or restitution,
if such were called for by the Sentencing Guidelines. Once this sentencing took place, the
defendant would have ten days to appeal his sentence pursuant to 18 U.S.C. § 3742(a). This is
what occurred in the instant scenario; the defendant appealed his sentence pursuant to § 3742(a)
(along with his conviction), and we affirmed. On the second occasion, in the prosecutor’s view,
the court would hold a second sentencing hearing, solely for the purpose of ordering forfeiture.
Since, as we explain in the text, forfeiture is part of a defendant’s sentencing package, the
defendant would have the right to appeal the forfeiture. In this case, the prosecutor never
returned for the second sentencing hearing. Rather, the Government sat on its hands until the
appellants moved to dismiss the ancillary hearing on the ground that the judgment in the
defendant’s case contained no order of forfeiture.
In sum, forfeiture is part of the defendant’s sentencing package for an obvious reason.
The magnitude of the forfeiture may influence how the court treats the other parts of the package.
For example, if forfeiture is sizeable, the court may impose a fine at the bottom of the Sentencing
Guidelines’ range or, if the forfeiture would render the defendant impecunious, perhaps no fine at
all. The two-step sentencing scenario the Government proposed in the defendant’s case turns
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however, we will assume that the Rule embraces errors arising from counsel’s,
rather than the court’s, oversight or omission.
The Government concedes, as it must, that the district court erred in
applying Rule 36 as it did in the defendant’s case. Rule 36 can be used to correct
“clerical” errors; it cannot be used, as it was here, to make a substantive alteration
to a criminal sentence. See United States v. Whittington, 918 F.2d 149, 151 (11th
Cir. 1990); see also United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995)
(“Rule 36 is not a vehicle for the vindication of the court’s unexpressed sentencing
expectations, or for the correction of errors made by the court itself.”) (internal
quotation marks omitted); United States v. Daddino, 5 F.3d 262, 264 (7th Cir.
1993) (“[R]ecent cases and commentary flesh out the parameters of Rule 36 and
demonstrate that this exception does not apply to errors made by the court itself.”).
In short, the district court misused Rule 36 to modify the defendant’s sentence in a
substantive way.
In addition to misapplying Rule 36, the court acted without jurisdiction.
The defendant’s case was still pending on appeal when, on June 5, 2000, the
district court amended the judgment to include an order of forfeiture. It is settled
law that the appeal of a judgment in a criminal case deprives the district court of
common sense on its head.
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jurisdiction to amend the judgment (except for clerical errors pursuant to Rule 36).
See, e.g., United States v. Vicaria, 963 F.2d 1412, 1415 (11th Cir. 1992).
In a final effort to obtain a forfeiture order, the Government asks that we
remand this case to the district court with an instruction to correct the judgment in
the defendant’s case pursuant to Rule 35(a) of the Federal Rules of Criminal
Procedure.19 The problem with this request is that the defendant’s criminal case is
not before us; we disposed of the appeal in that case nearly two years ago, when
the mandate issued on April 25, 2001. The case before us is an ancillary
proceeding, a civil case. See United States v. Gilbert, 244 F.3d 888, 906-07 (11th
Cir. 2001). Even if we were to assume that the instant case is a criminal case,
meaning that Rule 35(a) might apply, we would have no basis for remanding the
case with the instruction that the district court amend the judgment to provide for
forfeiture. The Rule permits a district court to correct a sentence that we have
19
Entitled “Correction or Reduction of Sentence,” the version of Rule 35(a) in effect at
the time of the defendant’s indictment provides:
The court shall correct a sentence that is determined on appeal
under 18 U.S.C. 3742 to have been imposed in violation of the law,
to have been imposed as a result of an incorrect application of the
sentencing guidelines, or to be unreasonable, upon remand of the
case to the court–
(1) for imposition of a sentence in accord with the
findings of the court of appeal; or
(2) for further sentencing proceedings, if after such
proceedings, the court determines that the original
sentence was incorrect.
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“determined on appeal under 18 U.S.C. § 3742 to have been imposed in violation
of the law, to have been imposed as a result of an incorrect application of the
sentencing guidelines, or to be unreasonable . . . .” Fed. R. Crim. P. 35(a). As we
have noted, the Government failed to appeal the defendant’s sentence – for failure
of the district court to order forfeiture as part of the sentence – thus, the purported
error is not before us.
III.
For the foregoing reasons, the district court’s order is REVERSED. On
receipt of our mandate, the district court shall dismiss the ancillary proceeding for
lack of an order of forfeiture.20
SO ORDERED.
20
The import of this ruling is that the preliminary order of forfeiture entered on January
4, 1999, expired on January 29, 1999, when the court sentenced the defendant.
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