USCA11 Case: 20-10987 Date Filed: 03/09/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10987
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELBERT J. BAKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cr-00057-BJD-PDB-1
____________________
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2 Opinion of the Court 20-10987
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
Delbert Baker appeals his sentence of 41 months’ imprison-
ment for bank fraud in violation of
18 U.S.C. § 1344. He first argues
that the district court erred by failing to elicit objections after his
sentence was finalized because the forfeiture component of his sen-
tence was not completed before the sentencing hearing. Second,
Baker contends that the district court erred by failing to adhere to
the rules governing forfeiture in Federal Rule of Criminal Proce-
dure 32.2. Third, he asserts that the district court erred by not
limiting his forfeiture to the amount of proceeds he obtained from
the fraud. Fourth, he argues that the district court erred by impos-
ing a forfeiture money judgment or order without statutory au-
thorization. Finally, he contends that the district court erred by not
submitting the question of the amount of proceeds he obtained to
a jury. We address these arguments in turn.
I.
We review de novo constitutional challenges to forfeiture
and a court’s legal conclusions regarding forfeiture and review find-
ings of fact for clear error. United States v. Puche,
350 F.3d 1137,
1153 (11th Cir. 2003); United States v. Rozier,
598 F.3d 768, 770
(11th Cir. 2010). We review errors that were not raised in the dis-
trict court for plain error, and the appellant must establish that
there was (1) an error (2) that was plain and (3) that affected his
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20-10987 Opinion of the Court 3
substantial rights. Rosales-Mireles v. United States,
138 S. Ct. 1897,
1904–05 (2018). To satisfy the third prong, a defendant generally
must show that there is a reasonable probability that the outcome
of the proceeding would have been different if the error had not
occurred.
Id. If those three conditions are met, we exercise our
discretion to correct the error if it seriously affects the fairness, in-
tegrity, or public reputation of judicial proceedings.
Id. at 1905.
However, if a district court fails to elicit sufficient objections after
imposing a sentence, we review related claims for preserved error,
reviewing the legality of the sentence de novo. See United States
v. Campbell,
473 F.3d 1345, 1348 (11th Cir. 2007).
After imposing a sentence, a district court “must give the
parties an opportunity to object to the court’s ultimate findings of
fact, conclusions of law, and the manner in which the sentence is
pronounced.”
Id. at 1347. If a court fails to do so, we normally
vacate the sentence and remand the case to the court to give the
parties an opportunity to present their objections.
Id. “A remand
is unnecessary, however, when the record on appeal is sufficient to
enable review.”
Id. One indication that the record is insufficient is
that the defendant failed to raise the relevant objections to the
presentence investigation report or the sentence. United States v.
Holloway,
971 F.2d 675, 681 (11th Cir. 1992). The two purposes of
this rule are to guide appellate review and permit the court to cor-
rect errors itself. See United States v. Hernandez,
160 F.3d 661, 666
(11th Cir. 1998).
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4 Opinion of the Court 20-10987
Forfeiture is a part of a sentence. Libretti v. United States,
516 U.S. 29, 42 (1995). As soon as practical after a guilty plea, the
court must determine what property is subject to forfeiture. Fed.
R. Crim. P. 32.2(b)(1)(A). “If the government seeks forfeiture of
specific property, the court must determine whether the govern-
ment has established the requisite nexus between the property and
the offense.”
Id. “If the government seeks a personal money judg-
ment, the court must determine the amount of money that the de-
fendant will be ordered to pay.”
Id. If the forfeiture determined by
the court is contested, the court must hold a hearing after the guilty
plea on either party’s request. Fed. R. Crim. P. 32.2(b)(1)(B). If the
court finds that property is subject to forfeiture, it must, in advance
of sentencing unless doing so is impractical, “enter a preliminary
order of forfeiture setting forth the amount of any money judg-
ment, directing the forfeiture of specific property, and directing the
forfeiture of substitute property if the government has met the stat-
utory criteria.” Fed. R. Crim. P. 32.2(b)(2). The preliminary forfei-
ture order becomes final at sentencing. Fed. R. Crim. P.
32.2(b)(4)(A).
Forfeiture is part of a defendant’s sentence, and here the dis-
trict court failed to follow the rules governing forfeiture and did
not finalize forfeiture until after the sentencing hearing. See Li-
bretti,
516 U.S. at 42; Fed. R. Crim. P. 32.2. Thus, the sentence was
not fully imposed, and the district court could not sufficiently elicit
objections at the hearing. Campbell,
473 F.3d at 1347. However,
the record is sufficient for us to review the issues Baker raises de
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20-10987 Opinion of the Court 5
novo except Issue III, which we remand to the district court. See
id. at 1347–48.
II.
The court must order forfeiture of substitute property up to
the value of property constituting, or derived from, proceeds ob-
tained directly or indirectly from an offense if that property cannot
be located, has been transferred to a third party, has been placed
beyond the jurisdiction of the court, or has been commingled with
other property.
21 U.S.C. § 853(a), (p).
Harmless error applies in the forfeiture context. United
States v. Farias,
836 F.3d 1315, 1330 (11th Cir. 2016). In Farias, we
held that the failure to enter a preliminary forfeiture order was
harmless error because: (1) Farias had notice that the government
would seek forfeiture from the indictments, the trial, and the sen-
tencing hearing; and (2) Farias argued at the trial that his forfeiture
should be limited, to the extent forfeiture was appropriate, to his
actual profit, the amount the court ultimately imposed.
Id. at 1323,
1330.
We conclude that the record is sufficient to review this issue.
The district court failed to follow the procedure required by Rule
32.2 prior to the sentencing hearing and did not enter its final for-
feiture order until after the hearing. However, this error was harm-
less because, separate from the possibly excessive forfeiture result-
ing from the Issue III error discussed below in Section III, Baker
had ample notice of the type and scope of forfeiture the
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6 Opinion of the Court 20-10987
government sought, and the court eventually entered a final forfei-
ture order consistent with that notice. See Farias, 836 F.3d at 1323,
1330. We therefore affirm as to this issue.
III.
Under
18 U.S.C. § 982(a)(2), a court shall order a defendant
to forfeit any property constituting, or derived from, proceeds a
defendant obtained directly or indirectly, as the result of bank
fraud. Forfeiture of property under § 982 is governed by
21 U.S.C.
§ 853. § 982(b)(1). Section 853(a)(1) limits forfeitable proceeds to
those obtained directly or indirectly by the defendant as the result
of the relevant crime. § 853(a)(1).
In Honeycutt v. United States,
137 S. Ct. 1626, 1630 (2017),
the Supreme Court considered whether a defendant could be held
jointly and severally liable for property, pursuant to § 853, that his
co-conspirator derived from the crime but that the defendant him-
self did not acquire. The Court held that § 853(a) limited forfeiture
to property the defendant obtained. Id. at 1633. The Court rea-
soned that a marijuana mastermind would obtain money if he re-
ceived payments directly from drug purchasers or arranged to have
purchasers pay an intermediary. Id. We have since applied Hon-
eycutt to other forfeiture statutes such as
18 U.S.C. § 982(a)(7), in
part, because § 982 provides that forfeiture of property under § 982
was governed by § 853. United States v. Elbeblawy,
899 F.3d 925,
941 (11th Cir. 2018). On the other hand, in United States v. Cingari,
952 F.3d 1301, 1305–06 (11th Cir. 2020), we distinguished Hon-
eycutt and refused to hold that a court plainly erred by finding
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20-10987 Opinion of the Court 7
Cingari jointly and severally liable with his spouse where he and
his spouse jointly operated a fraudulent business.
Here, we conclude that the record is insufficient to review
this issue. Neither party raised objections on this issue. See Hol-
loway,
971 F.2d at 681. Moreover, neither the district court nor the
parties discussed Honeycutt or evaluated whether Baker obtained
$350,000 in proceeds in light of the $400,000 established loss
amount and undisputed evidence that Baker generally split the pro-
ceeds equally with a co-conspirator bank account holder each time
he committed fraud. See Campbell,
473 F.3d at 1347. We therefore
remand this issue to the district court with instructions to hear ar-
guments from the parties on this issue.
IV.
Criminal forfeiture acts in personam as a punishment
against a person convicted of a crime. Elbeblawy, 899 F.3d at 940.
The proceeds of the crime are the defendant’s interest in property
and can be forfeited in an in personam proceeding in a criminal
case. Id. Courts can impose forfeiture of cash proceeds resulting
from a crime by a money judgment or order. United States v.
Waked Hatum,
969 F.3d 1156, 1163–64 (11th Cir. 2020), cert. de-
nied,
142 S. Ct. 72 (2021).
Here, we conclude the record is sufficient to show that the
court did not err. Courts can impose forfeiture of cash proceeds by
a money judgment or order in an in personam proceeding against
a defendant. Id.; Elbeblawy, 899 F.3d at 940. And because Baker’s
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8 Opinion of the Court 20-10987
arguments here are foreclosed by our precedent, we affirm as to
this issue.
V.
Generally, facts that increase the penalty for criminal con-
duct must be submitted to a jury and proven beyond a reasonable
doubt. See Alleyne v. United States,
570 U.S. 99, 103 (2013). How-
ever, the Sixth Amendment does not protect a right to a jury ver-
dict on forfeitability. Elbeblawy, 899 F.3d at 941; Libretti,
516 U.S.
at 49.
Here, we conclude that the record is sufficient to show that
there was no Sixth Amendment violation. Even though facts un-
derlying forfeiture increase the penalty for a crime, the Sixth
Amendment does not require those facts to be submitted to a jury.
See Elbeblawy, 899 F.3d at 941; Libretti,
516 U.S. at 49. We accord-
ingly affirm as to this issue.
VACATED AND REMANDED IN PART; AFFIRMED IN
PART.
