Sentencing; Forfeiture; FedRCrimP 32.2(b)(4)(B); Failure to impose forfeiture at the time of sentencing; Failure to include forfeiture in the initial & first amended judgments; Whether the error could be corrected as a “clerical error” under Rule 36; Whether Rule 32.2(b)(4)(B) is a “claim-processing rule” or a “time-related directive”; McIntosh v United States; Maddux v United States; Harmless error; “Right to presence”; Due process; Rule 43(a); Plain error review; Applicability of the invited-error doctrine; Department of Veterans Affairs (VA)

While the district court violated Rule 32.2(b)(4)(B) with its post-sentencing imposition of forfeiture, the court ruled in an issue of first impression that the rule is a “time-related directive subject to harmless-error review,” and that defendant-Harrell’s substantial rights were not violated by the error. A jury convicted him of theft of government funds by accepting VA disability benefits after he had become “gainfully employed.” His sentence included forfeiture of his proceeds. However, the district court did not impose the “forfeiture until several months after the sentencing hearing.” The case included “a series of judgment-related anomalies.” Eventually, the district court issued a second amended judgment that “finally imposed forfeiture in the amount of $108,454.88.” On appeal, Harrell sought to have the forfeiture vacated. The court first held that the district court violated Rule 32.2(b)(4)(B) where it failed to “affirmatively impose forfeiture at the point of sentencing.” It additionally violated the rule “by failing to include forfeiture in its initial or first amended judgments.” The court considered whether Rule 32.2(b)(4)(B) is a claim-processing rule or a time-related directive, and held that, under the reasoning of McIntosh (which abrogated Maddux), it is the latter. As such, it is subject to harmless error analysis, and Harrell’s claim failed. He “had plenty of notice that the government sought forfeiture in the amount of $108,454.88.” It included forfeiture in its indictment, moved for a preliminary order of forfeiture about a month before sentencing, requested that amount “in forfeiture in its sentencing memorandum, and requested forfeiture orally at the sentencing hearing. Harrell also had a full and fair opportunity to contest the government’s forfeiture request.” The court further concluded that the district court’s post-sentencing written imposition of forfeiture did not violate his “right to presence under the Due Process Clause, and, although it violated Harrell’s right to presence under Rule 43(a), it did not affect [his] substantial rights under plain-error review. Additionally, the written sentence did not impermissibly conflict with the oral sentence.” Affirmed.