United States v. McIntosh

14-1908
United States v. McIntosh

In the
United States Court of Appeals
For the Second Circuit
________

AUGUST TERM 2020

ARGUED: OCTOBER 15, 2020
DECIDED: JANUARY 31, 2022
AMENDED: JANUARY 25, 2023

Nos. 14-1908, 14-3922, 17-2623

UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,

v.

LOUIS MCINTOSH, AKA Lou D, AKA Lou Diamond, AKA G,
Defendant-Appellant-Cross-Appellee,

EDWARD RAMIREZ, AKA Taz, TERRENCE DUHANEY, AKA Bounty
Killer, TURHAN JESSAMY, AKA Vay, QUINCY WILLIAMS, AKA
Capone, TYRELL ROCK, AKA Smurf, NEIL MORGAN, AKA Steely,
Defendants.
________

Appeal from the United States District Court
for the Southern District of New York.
________
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Before: WALKER, LOHIER, Circuit Judges, and STANCEU, Judge. *
________
Louis McIntosh appeals various issues arising from his 2017
amended judgment of conviction for Hobbs Act robbery and firearm
offenses in the Southern District of New York (Sidney H. Stein, J.). In
this opinion, we address two of McIntosh’s arguments—first, that the
order of forfeiture entered against him should be vacated because the
district court failed to enter a preliminary order prior to sentencing,
as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B);
second, that he was improperly convicted of possessing firearms as a
felon, Counts Twelve through Fourteen, because the government did
not prove that he knew that he was a felon. As to these issues, we
AFFIRM the judgment of the district court. We address his remaining
arguments in a separate summary order filed concurrently with this
opinion.

________

STEVEN YUROWITZ, Newman & Greenberg LLP,
New York, NY, for Defendant-Appellant-Cross-
Appellee Louis McIntosh.

SARAH KRISSOFF, Assistant United States Attorney
(Thomas McKay, Assistant United States
Attorney, on the brief), for Geoffrey S. Berman,
United States Attorney for the Southern District of
New York, New York, NY, for Appellee-Cross-
Appellant United States of America.

________

*Senior Judge Timothy C. Stanceu, of the United States Court of
International Trade, sitting by designation.
3 14-1908-cr

JOHN M. WALKER, JR., Circuit Judge:

Louis McIntosh appeals various issues arising from his 2017
amended judgment of conviction for Hobbs Act robbery and firearm
offenses in the Southern District of New York (Sidney H. Stein, J.). 1 In
this opinion, we address two of McIntosh’s arguments—first, that the
order of forfeiture entered against him should be vacated because the
district court failed to enter a preliminary order prior to sentencing,
as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B);
second, that he was improperly convicted of possessing firearms as a
felon, Counts Twelve through Fourteen, because the government did
not prove that he knew that he was a felon. As to these issues, we
AFFIRM the judgment of the district court. We address his remaining
arguments in a separate summary order filed concurrently with this
opinion.

BACKGROUND

In 2011, Appellant Louis McIntosh and several others were
indicted on multiple counts of Hobbs Act robbery and related
firearms charges. The charges arose from a series of violent robberies
and attempted robberies that occurred between 2009 and 2011. The

1 This opinion was originally filed on January 31, 2022, with a
concurrently filed summary order. See United States v. McIntosh, 24 F.4th
857 (2d Cir. 2022); United States v. McIntosh, No. 14-1908, 2022 WL 274225
(2d Cir. Jan. 31, 2022). On July 26, 2022, McIntosh filed a petition for a writ
of certiorari with the Supreme Court. On November 7, 2022, the Supreme
Court granted McIntosh’s petition for a writ of certiorari, vacated our
judgment, and remanded the case for further consideration in light of
United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted
Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c). See
McIntosh v. United States, 143 S. Ct. 399 (2022). Because United States v.
Taylor does not affect the analysis in this opinion, we now reissue it, with
only minor non-substantive changes.
4 14-1908-cr

indictment contained a forfeiture allegation, consistent with 18 U.S.C.
§ 98l(a)(1)(C) and 28 U.S.C. § 2461(c), requiring the forfeiture of all
proceeds and property resulting from the offenses.

In August 2013, a jury in the Southern District of New York
convicted McIntosh on all counts. 2 The district court sentenced
McIntosh to 720 months’ imprisonment and three years of supervised
release. The district court also ordered McIntosh to pay restitution
and to forfeit $75,000 and a BMW that McIntosh had purchased with
robbery proceeds.

Before imposing forfeiture, Federal Rule of Criminal Procedure
32.2(b) requires the district court to “promptly enter a preliminary
order of forfeiture setting forth the amount of any money judgment
. . . [and] directing the forfeiture of specific property.” 3 “Unless doing
so is impractical,” this preliminary order “must” be entered
“sufficiently in advance of sentencing to allow the parties to suggest
revisions or modifications before the order becomes final.” 4 The
preliminary order becomes final at sentencing and must be included
in the judgment. 5

In this case, the district court did not enter a preliminary order
prior to sentencing, apparently because the government did not
submit a proposed order. At sentencing, after verbally ordering
forfeiture, the district court instructed the government to propose a

2After jury deliberations, the district court directed a judgment of
acquittal on two counts. The district court’s order as to those counts has no
bearing on the issues discussed in this opinion.

3 Fed. R. Crim. P. 32.2(b)(2)(A).

4 Fed. R. Crim. P. 32.2(b)(2)(B).

5 Fed. R. Crim. P. 32.2(b)(4)(A)-(B).
5 14-1908-cr

formal order of forfeiture within one week, which the government
also failed to do. As a result, no written order of forfeiture was
entered.

After the entry of judgment, McIntosh timely appealed. In
2016, on the government’s unopposed motion, we remanded the case
pursuant to United States v. Jacobson 6 and instructed the government,
if it wished to pursue forfeiture, to ask the district court to enter a
formal order of forfeiture. The government then filed a proposed
order, and McIntosh raised several challenges in response.

On August 8, 2017, the district court denied McIntosh’s
objections and entered a preliminary order for forfeiture. The order
required McIntosh to pay $75,000 in forfeiture and to turn over the
BMW, with funds from the sale of the car being credited against the
$75,000. 7 The order was included in an amended judgment filed the
same day. McIntosh timely appealed the amended judgment.

DISCUSSION

I

On appeal, McIntosh challenges the forfeiture order, which he
says should be vacated because the district court failed to enter a
preliminary forfeiture order before sentencing, as required by Federal
Rule of Criminal Procedure 32.2(b)(2)(B). We disagree.

Nothing in the federal rules sets forth the consequences of a
failure by the district court to issue the preliminary order prior to
sentencing. We find the Supreme Court’s decision in Dolan v. United

6 15 F.3d 19 (2d Cir. 1994).

In our accompanying summary order, we vacate the $75,000 forfeiture
7

on other grounds and remand the case to the district court for recalculation.
6 14-1908-cr

States, however, to be instructive. 8 There, in a restitution case, the
Supreme Court laid out a framework for analyzing “the consequences
of [a] missed deadline” when not specified in the relevant statute. 9
The Court described three kinds of deadlines: “jurisdictional rules”
that present an absolute prohibition; “claims-processing rules” that
can bar certain actions but also may be waived; and “time-related
directives” that 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.” 10

The Dolan Court concluded that a 90-day statutory deadline to
order restitution was a time-related directive. The Court considered
a number of relevant circumstances. It stated that when “a statute
does not specify a consequence for noncompliance with its timing
provisions, federal courts will not in the ordinary course impose their
own coercive sanction.” 11 It examined the text and structure of the
statute and determined that the deadline “is primarily designed to
help victims of crime secure prompt restitution rather than to provide
defendants with certainty as to the amount of their liability.” 12 The
Court was mindful that preventing restitution would harm victims,
“who likely bear no responsibility for the deadline’s being missed and
whom the statute also seeks to benefit.” 13 This suggested that the
deadline is not meant to be a firm prohibition. The Court also cited

8 560 U.S. 605 (2010).

9 Id. at 610.

10 Id. at 610-11.

11 Id. at 611 (internal quotation marks omitted).

12 Id. at 613.

13 Id. at 613-14.
7 14-1908-cr

other cases in which deadlines were interpreted flexibly in order to
preserve their purpose or to avoid disproportionally benefiting
convicted defendants. 14 Finally, it noted that defendants who wished
to avoid delay were always free to remind the district court of the
statutory deadline. 15 Taken together, these circumstances led the
Supreme Court to conclude that the restitution deadline is a time-
related directive. As a result, so long as the district court makes clear
prior to the deadline expiring that it intends to impose restitution, “a
sentencing court that misses the 90-day deadline nonetheless retains
the power to order restitution.” 16

We think the considerations that pertained to the restitution
order in Dolan similarly apply to the Rule 32.2(b) deadline for
forfeiture. The Fourth Circuit adopted this view a year after Dolan
when, in United States v. Martin, it applied Dolan’s considerations to a
previous version of Rule 32.2(b) and found its deadline to be a time-
related directive. 17 For several reasons, we agree with the reasoning
in Martin and believe it applies with equal force to the current version
of the rule.

First, Rule 32.2 “does not specify a consequence for
noncompliance with its timing provisions.” 18 Second, the Federal
Rules Advisory Committee’s notes on the revised rule make clear that
the deadline to enter the preliminary order is intended to give the
parties time “to advise the court of omissions or errors in the order

14 Id. at 614-15.

15 Id. at 616.

16 Id. at 608.

17 662 F.3d 301 (4th Cir. 2011).

18 Dolan, 560 U.S. at 611 (internal quotation marks omitted).
8 14-1908-cr

before it becomes final” because there is limited opportunity to do so
after judgment is finalized. 19 At the same time, the comments make
no mention of an interest in giving defendants certainty as to the
amount to be forfeited before sentencing. This focus on accuracy, not
the defendant’s repose, is consistent with the substantive purpose of
forfeiture, which is to “deprive criminals of the fruits of their illegal
acts and deter future crimes.” 20 Third, because forfeited funds
frequently go to the victims of the crime, preventing forfeiture due to
the missed deadline would tend to harm innocent people who are not
responsible for the oversight. 21 Fourth, consistent with examples
cited in Dolan, interpreting the deadline rigidly here would
disproportionately benefit defendants. And, finally, as in Dolan, a
defendant concerned about possible delays or mistakes can remind
the district court of the preliminary order requirement any time
before sentencing.

Our analysis is reinforced by the decisions of sister circuits that
have also found the Rule 32.2(b) deadline to be non-jurisdictional. 22
Thus, we conclude that Rule 32.2(b)(2)(B) is a time-related directive.
Accordingly, the district court’s failure to enter a preliminary order in
time does not render the forfeiture invalid.

McIntosh raises several counterarguments, none of which are
persuasive. He cites an Eleventh Circuit case for the proposition that
“strict compliance with the letter of the law by those seeking forfeiture

19 Fed. R. Crim. P. 32.2(b) advisory committee’s note to 2009 amendment.

20 Martin, 662 F.3d at 309.

21 Id.

22See United States v. Carman, 933 F.3d 614, 617 (6th Cir. 2019); United
States v. Cereceres, 771 F. App’x 803, 804 (9th Cir. 2019); United States v. Farias,
836 F.3d 1315, 1330 (11th Cir. 2016).
9 14-1908-cr

must be required.” 23 But Rule 32.2(b)(2)(B) governs the conduct of the
district court, not the litigants. The issue here is whether the district
court had the authority to enter the order despite its failure to comply
with the timing requirements, not whether the government should
have been more diligent. Even if the government bears some
responsibility for the mistake, Rule 32.2(b)(2)(B)’s status as a time-
related directive means that it is not a fatal one.

McIntosh also asserts that forfeiture is unlike restitution, which
was at issue in Dolan, because restitution is intended to assist the
victims of crimes. It is true that forfeiture and restitution serve
different purposes: restitution is for “remediating a loss,” while
forfeiture is for “disgorging a gain.” 24 But that distinction is less
material here. Forfeiture also serves other important purposes, and
we see no reason why, for purposes of timing, restitution and
forfeiture should be treated differently under these circumstances.

McIntosh next argues that he was prejudiced by the delay
because his BMW lost value while the forfeiture issue was litigated. 25
But McIntosh knew that the district court would order forfeiture, and
as the district court pointed out, he could have sought an
interlocutory sale of the car if he had wished to preserve its value.
Doing so would have been consistent with the structure of the rule,
which permits the sale of property prior to sentencing but only with

23United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1547 (11th
Cir. 1987).

24 United States v. Torres, 703 F.3d 194, 196 (2d Cir. 2012).

See United States v. Qurashi, 634 F.3d 699, 705 (2d Cir. 2011) (noting that
25

Dolan permits us to take into account claimed prejudices resulting from
delays).
10 14-1908-cr

the defendant’s consent. 26 McIntosh also argues that the government
alone is responsible for preserving the value of seized assets, but for
support he cites only to an inapposite customs statute. 27 McIntosh has
not demonstrated prejudice sufficient to void the forfeiture order.

McIntosh also points to the structure of Rule 32.2 to argue that
the preliminary order deadline must be interpreted strictly. Should
the court forget to include the forfeiture order in the final judgment,
Rule 32.2(b)(4)(B) permits the judgment to be corrected under Rule 36,
which governs the correction of clerical errors. From this provision,
McIntosh infers that all the other requirements of the rule, which do
not have related correction provisions, are strictly enforceable. But
Rule 32.2(b)(4)(B) simply makes clear that forgetting to incorporate
the order in the final judgment is a clerical error and should be treated
as such. It sheds no light on the treatment of procedural errors.
Indeed, the statute at issue in Dolan similarly stated that a sentence
containing an order of restitution can “subsequently be . . . corrected
under Rule 35.” 28 This provision, however, did not transform the
statute’s other requirements into ironclad limits, and neither does
reference to Rule 36 in Rule 32.2(b)(4)(B) do so here.

Finally, we reject McIntosh’s claim that he should be credited
for the value of the BMW at the time it was seized, not its eventual
sale price. He cites no authority directly supporting this point,
instead relying on statutes that require the government or courts to
preserve the value of seized assets. The statutes he cites deal with

Fed. R. Crim. P. 32.2(b)(4)(A); Fed. R. Crim. P. 32.2(b) advisory
26

committee’s note to 2000 amendment.

19 U.S.C. § 1612 (requiring the prompt sale of property seized under
27

customs law).

28 18 U.S.C. § 3664(o)(1)(A).
11 14-1908-cr

protecting the interests of lienholders and others with claims on the
property, not the individual subject to the forfeiture order.29
Crediting defendants for property depreciation that occurred during
litigation and which defendants could likely prevent by requesting a
sale would, in most cases, undermine forfeiture’s deterrent value and
possibly shortchange victims.

II

McIntosh also contests his convictions on Counts Twelve
through Fourteen for possessing a firearm as a felon. At trial,
McIntosh stipulated that he had been convicted of a crime punishable
by a year or more in prison, but the stipulation did not state that he
was aware of this fact when he possessed the firearms. The
government, meanwhile, offered no evidence suggesting that
McIntosh was aware of his felon status, but McIntosh did not object.

In Rehaif v. United States, the Supreme Court held that the
relevant statutes required the government to show “that the
defendant knew he possessed a firearm and also that he knew he had
the relevant [felon] status when he possessed it.” 30 On appeal,
McIntosh argues that the district court committed plain error when it
failed to instruct the jury about the knowledge element of these
counts. Plain error arises when, among other requirements, “there
[is] a reasonable probability that the error affected the outcome of the
trial.” 31

See 19 U.S.C. § 1612; Fed R. Civ. P., Supp. Rule G(7)(b); 18 U.S.C.
29

§ 981(g)(6).

30 139 S. Ct. 2191, 2194 (2019).

United States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation marks
31

omitted).
12 14-1908-cr

McIntosh’s argument is foreclosed by the recent Supreme
Court decision Greer v. United States. 32 In Greer, the Supreme Court
held that, to establish plain error under Rehaif, a defendant must
“make an adequate showing on appeal that he would have presented
evidence in the district court that he did not in fact know he was a
felon when he possessed firearms.” 33 McIntosh has offered no such
evidence. Consequently, we have “no basis to conclude that there is
a ‘reasonable probability’ that the outcome would have been different
absent the Rehaif error,” and so we cannot find plain error. 34

McIntosh argues that the district court’s failure to instruct the
jury on the point should, on its own, be enough to establish plain
error. But Greer has made clear that “Rehaif errors fit comfortably
within the general rule that a constitutional error does not
automatically require reversal of a conviction.” 35 McIntosh “must
satisfy the ordinary plain-error test.” 36 He has not done so here, and
so we affirm the district court on Counts Twelve through Fourteen.

CONCLUSION

For the foregoing reasons, as to the issues discussed above, we
AFFIRM the judgment of the district court.

32 141 S. Ct. 2090 (2021).

33 Id. at 2097.

34 Id.

35 Id. at 2100 (quotation marks omitted).

36 Id.