United States v. Salvador Navarro ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 29, 2018*
Decided May 31, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-2613 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Southern District of Illinois.
Plaintiff-Appellee,
v. No. 11-CR-30046-NJR-3
Nancy J. Rosenstengel, Judge.
SALVADOR GUADALUPE NAVARRO,
Defendant-Appellant.
Order
The judgment in Salvador Navarro’s criminal case includes a forfeiture of $9 million,
which may be satisfied by seizing substitute assets. 21 U.S.C. §853(p). His initial appeal
contested the length of his sentence but not the forfeiture provision. We remanded for
resentencing. United States v. Navarro, 817 F.3d 494 (7th Cir. 2016). The district court re-
duced Navarro’s time in prison from 262 months to 188 months (within the Guidelines
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a)(2)(C).
No. 17-2613 Page 2
range) and imposed the same forfeiture. Navarro appealed again, but his lawyer filed
an Anders brief.
Navarro contended, in a filing under Circuit Rule 51(b), that the forfeiture order was
deficient because the district judge did not mention it at the time of sentencing. After
considering this filing, we dismissed the appeal as frivolous. United States v. Navarro,
No. 16-3092 (7th Cir. July 17, 2017) (nonprecedential disposition). We observed that Na-
varro’s plea agreement contains a waiver of the right to appeal and that none of the ar-
guments (by counsel or Navarro himself) was outside the scope of that waiver.
While his second appeal was pending in this court, Navarro filed in the district court
a motion requesting an injunction against collection of the forfeiture from substitute as-
sets. Navarro maintained that, despite the language in the judgment, collection from
substitute assets is proper only if the prosecutor first obtains a judicial order, separate
from the judgment, finding that the requirements of §853(p) have been satisfied. The
district judge denied that motion, concluding that the sort of arguments Navarro pre-
sented had to be raised on direct appeal. Because they were not so raised—Navarro had
not objected to collection from substitute assets in either of his two appeals—his new
line of argument had been forfeited.
The district court’s decision is correct. This appeal is controlled by Young v. United
States, 489 F.3d 313 (7th Cir. 2007), which holds that disputes about the terms of a forfei-
ture specified in a criminal judgment must be raised on direct appeal or not at all.
Young added (without explanation) that a district court lacks subject-matter jurisdic-
tion to consider an argument omitted from the defendant’s direct appeal. The district
judge in this case likewise stated that Navarro’s motion sought relief that was outside
the court’s jurisdiction. Navarro, whose briefs do not mention Young, has not asked us
to reexamine the jurisdictional aspect of that decision, which may need attention in an
appropriate case.
It is true that Young’s motion was made after the time limits specified by Fed. R.
Crim. P. 35 and does not identify the sort of clerical error that Fed. R. Crim. P. 36 says
may be corrected at any time. But we know from Eberhart v. United States, 546 U.S. 12
(2005), which Young did not cite, that time limits in the Rules of Criminal Procedure are
not jurisdictional. Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017),
adds that time limits originating in the Rules of Appellate Procedure likewise are not
jurisdictional. And 28 U.S.C. §2255 authorizes some forms of post-judgment review, in-
cluding claims based on statutes. See Davis v. United States, 417 U.S. 333 (1974). Because
the litigants have not asked us to reexamine the jurisdictional aspect of Young, we apply
No. 17-2613 Page 3
it today—the difference between a jurisdictional dismissal and one based on waiver or
forfeiture is irrelevant to Navarro—without endorsement.
AFFIRMED