UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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

 3 Jenkins 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