United States v. Thomas Jenkins, II , 677 F. App'x 845 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4738
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS BRANTLEY JENKINS, II,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cr-00053-CCE-3)
Submitted: January 27, 2017 Decided: February 3, 2017
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids,
Michigan, for Appellant. Ripley Rand, United States Attorney,
Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Brantley Jenkins II, pled guilty to conspiracy to
manufacture methamphetamine, in violation of 21 U.S.C. § 846
(2012). The district court sentenced Jenkins to 150 months’
imprisonment and ordered him to forfeit numerous items and $1536
in currency. In accordance with Anders v. California, 386 U.S.
738 (1967), Jenkins’ counsel filed a brief certifying that there
are no meritorious grounds for appeal but questioning whether
Jenkins’ sentence is reasonable. 1 We directed supplemental
briefing on the issue of whether the district court plainly
erred in ordering forfeiture when the Government failed to
include a forfeiture allegation in the superseding indictment.
We now affirm in part, vacate in part, and remand for further
proceedings.
I.
We review a defendant’s sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). Under this standard, a sentence is reviewed for
both procedural and substantive reasonableness. Id. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
1 Counsel who filed the Anders brief subsequently moved to
withdraw, which we granted. We then appointed new counsel to
represent Jenkins in this appeal.
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Sentencing Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2012) factors, and sufficiently explained the
selected sentence. Id. at 49-51. If a sentence is free of
“significant procedural error,” then we review it for
substantive reasonableness, “tak[ing] into account the totality
of the circumstances.” Id. at 51.
Counsel first questions whether the district court
adequately explained its chosen sentence, contending that the
court did not place enough weight on Jenkins’ arguments for a
variant sentence and placed undue weight on the seriousness of
the offense. In evaluating a sentencing court’s explanation of
a selected sentence, we consistently have held that, although
the district court must consider the statutory factors and
explain the sentence, “it need not robotically tick through the
§ 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153
(4th Cir. 2015) (internal quotation marks omitted). At the same
time, the district court “must make an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 50. While the
“individualized assessment need not be elaborate or
lengthy, . . . it must provide a rationale tailored to the
particular case at hand and adequate to permit meaningful
appellate review.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). While the
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district court did not cite all of the § 3553(a) factors
explicitly, its explanation of the sentence shows that it
considered the factors and applied to them to the unique
circumstances of Jenkins’ case. Accordingly, we discern no
procedural error.
Counsel next questions whether Jenkins’ sentence is
substantively reasonable. “Any sentence that is within or below
a properly calculated Guidelines range is presumptively
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014). We conclude that Jenkins’ argument fails to
overcome the presumption of reasonableness accorded the sentence
imposed by the district court. Accordingly, Jenkins’ 150-month
sentence of imprisonment is reasonable.
II.
Turning to the district court’s forfeiture order, Jenkins
failed to object to the court’s order; thus, we review the order
for plain error. United States v. Moore, 810 F.3d 932, 939 (4th
Cir. 2016). “[W]e may reverse only on a finding that (1) there
was error, (2) that was plain, (3) that affected substantial
rights, and (4) that seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Id. (alterations
and internal quotation marks omitted).
Federal Rule of Criminal Procedure 32.2 governs the
procedure by which a district court orders forfeiture. “A court
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must not enter a judgment of forfeiture in a criminal proceeding
unless the indictment . . . contains notice to the defendant
that the government will seek the forfeiture of property as part
of any sentence in accordance with the applicable statute.”
Fed. R. Crim. P. 32.2(a); see 21 U.S.C. § 853(a) (2012)
(authorizing forfeiture). Here, the superseding indictment did
not contain a forfeiture allegation. The district court also
failed to enter a preliminary order of forfeiture prior to
Jenkins’ sentencing hearing, as required by Fed. R. Crim. P.
32.2(b)(2). Because “these procedures are mandatory,” United
States v. Marquez, 685 F.3d 501, 509 (5th Cir. 2012), we
conclude that these errors are plain.
Turning to whether the errors affect Jenkins’ substantial
rights, the district court’s judgment stated:
The defendant shall forfeit the defendant’s interest
in the following property to the United States:
$1,536.00 shall be applied to the restitution,
remainder shall go to [Jenkins’ sister], [R]uger to be
destroyed, remaining firearms to be returned to
rightful owner, remaining items to be destroyed at the
end of the appeal period.
(J.A. 125). 2 Although not clear from the present record, the
Government represents on appeal that these remaining items
included “a letter, three BB guns, a pill bottle containing a
green leafy material, a Wells Fargo new account opening kit, an
2 “J.A.” refers to the Joint Appendix filed by the parties.
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improvised shaking device (Sawzall), 690 rounds of assorted
ammunition, twelve firearm magazines/ammo can, and video
surveillance equipment.” (Appellee’s Br. at 4 n.1).
Some of these items included “property associated with the
planning, implementing, or concealing of a crime.” Luis v.
United States, 136 S. Ct. 1083, 1090 (2016) (“[T]itle to
property used to commit a crime (or otherwise traceable to a
crime) often passes to the Government at the instant the crime
is planned or committed.” (internal quotation marks omitted)).
However, not all of the items were necessarily tainted assets.
Jenkins represented that his sister loaned him the currency,
which would not constitute proceeds of his crime. While the
Government represents that many of the items were contraband or
used in the commission of the offense, its failure to properly
allege forfeiture deprived Jenkins of his ability to demonstrate
that they were not. See Fed. R. Crim. P. 32.2(b)(1).
We conclude that Jenkins’ substantial rights are not
affected by the forfeiture of a pill bottle that contained
marijuana, as Jenkins was not entitled to have contraband
returned to him. See United States v. Vanhorn, 296 F.3d 713,
718-19 (8th Cir. 2002). We further conclude that Jenkins has
waived review of the forfeiture of the Ruger, as he disclaimed
ownership of that firearm during the sentencing hearing. See
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014).
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However, as to the remainder of the items included in the
district court’s forfeiture order, we conclude that Jenkins’
substantial rights are affected and that this error affects the
fairness of the proceedings, as the Government’s failure to
allege forfeiture and the district court’s failure to enter a
preliminary order of forfeiture raise due process concerns. See
United States v. Shakur, 691 F.3d 979, 988-89 (8th Cir. 2012).
III.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious grounds
for appeal. Accordingly, we affirm the district court’s
judgment, except for a portion of the forfeiture order contained
therein. Specifically, we affirm in part the district court’s
forfeiture order, as it relates to the Ruger and the pill bottle
containing marijuana, but we vacate the forfeiture order in all
other respects and remand this case for further proceedings not
inconsistent with Fed. R. Crim. P.32.2. We also deny Jenkins’
motion for leave to file a pro se supplemental brief. 3
3Jenkins initially declined to file a pro se supplemental
brief and fails to offer any reason why he did not do so when
initially given the opportunity. Thus, because his motion was
filed after we ordered the parties to file merits briefs, we
deny Jenkins’ motion. See United States v. Penniegraft, 641
F.3d 566, 569 n.1 (4th Cir. 2011).
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This court requires that counsel inform Jenkins, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Jenkins requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Jenkins. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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