UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4131

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CONNELL LEE BERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. Malcolm J. Howard,

District Judge. (CR-03-58)

Argued: October 29, 2004 Decided: January 4, 2005

 

Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit

Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote a

dissenting opinion.

ARGUED: George Alan DuBois, Assistant Federal Public Defender,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Anne Margaret Hayes, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for

Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,

James E. Todd, Jr., Research and Writing Specialist, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

Frank D. Whitney, United States Attorney, Christine Witcover Dean,

Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Connell Lee Berry appeals a $10,000 forfeiture requirement

imposed on him as part of his sentence for three drug offenses. We

affirm.

I.

Berry was charged with conspiring to distribute and to possess

with the intent to distribute more than 50 grams of cocaine base,

see 21 U.S.C.A. § 846 (West 1999) (Count One); distributing more

than 50 grams of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West

1999) (Count Two); and distributing more than five grams of cocaine

base, see id. (Count Three). The indictment also contained a

notice alleging the Government was entitled to forfeiture of at

least $10,000 of Berry’s assets. See Fed. R. Crim. P. 32.2(a).

Berry pled guilty to all three counts without a plea

agreement. The Government then proffered that Berry’s offenses

included the sale of 56.4 grams of cocaine base for $1,800 and the

sale of 12.9 grams of cocaine base for $475. Later the same day,

the district court entered an order documenting the forfeiture of

$10,000 to the United States. The district court clerk

subsequently entered a judgment against Berry for the $10,000

forfeiture. 

The district court sentenced Berry to 120-month terms of

imprisonment on Counts One and Two and a 108-month term on Count
1The Government maintains that Berry waived review of the

forfeiture order by virtue of his guilty plea and his failure to

contest the Government’s forfeiture allegation. The Government

therefore contends that we should not review the forfeiture order

even for plain error. In light of our conclusion that Berry cannot

satisfy the plain error requirements, we do not address this waiver

argument.

3

Three, all to be served concurrently. The court also imposed

concurrent five-year terms of supervised release and ordered Berry

to pay a $5,000 fine. Although the fine amount was below the

$15,000-to-$10,000,000 range prescribed by the guidelines, see

United States Sentencing Guidelines Manual § 5E1.2(c) (2002);

21 U.S.C.A. § 841(b)(1)(A), (B) (West 1999 & Supp. 2004), the court

found that Berry would not be able to satisfy a fine in the

guideline range. The district court also ordered that as a special

condition of Berry’s supervised release, he would forfeit the

property specified in the forfeiture order.

II.

Berry contends that the district court erred in ordering him

to forfeit $10,000 in the absence of evidence linking assets in

that amount to his drug trafficking crimes. He concedes that he

never objected to the order and thus that we should conduct plain

error review.1

Our authority to correct forfeited errors is granted by

Federal Rule of Criminal Procedure 52(b), which provides that “[a]

plain error that affects substantial rights may be considered even
2

We note that even were we to hold that Berry demonstrated

plain error affecting his substantial rights, we would decline to

exercise our discretion to notice the error under the specific

facts of this case. Berry was aware of the forfeiture order and

was the person best positioned to know whether it was based in

4

though it was not brought to the court’s attention.” In order to

establish our authority to notice an error not preserved by timely

objection, Berry must demonstrate that an error occurred, that the

error was plain, and that the error affected his substantial

rights. See United States v. Olano, 507 U.S. 725, 732 (1993).

Even if Berry can satisfy these requirements, correction of the

error remains within our discretion, which we “should not exercise

... unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. (internal

quotation marks & alteration omitted).

Here, even if we assume that ordering the forfeiture

constituted plain error, Berry cannot demonstrate that the error

affected his substantial rights, i.e., that it was prejudicial.

See id. at 734; United States v. Hastings, 134 F.3d 235, 240 (4th

Cir. 1998) (explaining that an error is prejudicial when it

“actually affected the outcome of the proceedings”). That is so

because the amount of the fine imposed was based on Berry’s ability

to pay, and the fine and the forfeiture were part of the single,

integrated sentence. Berry has failed to show that any reduction

in the amount of the forfeiture would not simply have resulted in

a commensurate increase in the amount of the fine imposed.2
fact, yet he did not challenge it when given the opportunity; the

forfeiture did not violate the Excessive Fines Clause of the Eighth

Amendment; and, Berry will be able, via 28 U.S.C.A. § 2255 (West

Supp. 2004) motion, to challenge his counsel’s failure to object.

5

III.

In sum, because Berry has failed to show that he was

prejudiced by the issuance of the forfeiture order he challenges,

we affirm.

AFFIRMED
6

GREGORY, Circuit Judge, dissenting:

I respectfully dissent. I would hold that the district court

committed plain error in imposing a forfeiture on Berry without the

required “factual nexus” between the forfeiture amount and his drug

crimes.

I.

Criminal forfeiture is authorized by 21 U.S.C. § 853, which

provides for the forfeiting of property “constituting, or derived

from any proceeds the person obtained, directly or indirectly, as

the result of” certain controlled substance violations. 21 U.S.C.

§ 853(a)(1) (1999). Property “used, or intended to be used, in any

manner or part, to commit, or to facilitate the commission of” such

a violation is likewise subject to forfeiture. Id. § 853(a)(2). 

In Libretti v. United States, 516 U.S. 29 (1995), the Supreme

Court considered 21 U.S.C. § 853 and held that criminal forfeiture

“is less a substantive offense and more an element of the

offender’s sentence.” United States v. White, 116 F.3d 948, 950

(1st Cir. 1997) (citing Libretti, 516 U.S. at 39). Because

forfeiture is part of the sentence, the requirements of Fed. R.

Crim. P. 11 do not apply. Libretti, 516 U.S. at 39-41. “This does

not mean, however, that the government can forfeit assets for the

asking.” White, 116 F.3d at 950. Rather, the Libretti Court made

clear that “§ 853 limits forfeiture by establishing a factual nexus
1

The preponderance of the evidence standard governs forfeiture

questions. United States v. Tanner, 61 F.3d 231, 234 (4th Cir.

1995). 

2The Government urges us to read this statement to mean that

while the district court does not have to rely upon a stipulation

in a written plea agreement, it has the discretion to accept the

Government’s proffered forfeiture amount in the absence of any plea

agreement. Appellee’s Br. at 17. Such an interpretation goes

beyond the holding of Libretti and is implausible in light of the

Libretti Court’s reiteration that § 853 requires a “factual nexus.”

7

requirement: Only drug-tainted assets may be forfeited.” 516 U.S.

at 42 (emphasis added). Thus, the Government must establish a

connection between the forfeited property and the defendant’s

criminal conduct.1

Fed. R. Crim. P. 32.2, which governs the procedure for the

forfeiture of assets in a criminal case, confirms this requirement.

It states, in part:

If the government seeks a personal money judgment, the

court must determine the amount of money that the

defendant will be ordered to pay. The court’s

determination may be based on evidence already in the

record, including any written plea agreement or, if the

forfeiture is contested, on evidence presented by the

parties at a hearing after the verdict or finding of

guilt.

Fed. R. Crim. P. 32.2(1). Libretti noted that a district court did

not have to accept a defendant’s agreement to forfeit property,

“particularly when the agreement is not accompanied by a

stipulation of facts supporting forfeiture, or when the trial judge

for other reasons finds the agreement problematic.”2 519 U.S. at

43. It also stated that in the case before it “we need not
3

While the majority declines to reach the Government’s

argument that Berry waived review of the forfeiture order by

pleading guilty, I would find that a waiver did not occur. The

Supreme Court’s holding that forfeiture is part of a defendant’s

sentence and not a substantive charge, Libretti, 516 U.S. at 39-41,

forecloses the Government’s argument that Berry’s guilty plea acted

as a waiver to his right to challenge the forfeiture. 

The Government also fails to demonstrate why this court should

treat Berry’s failure to object to his forfeiture amount

differently from a failure to object to any other part of his

sentence. For example, if the Government gave Berry notice that it

planned to seek an upward departure under the Sentencing Guidelines

and the district court imposed such departure without objection,

Berry’s argument on appeal that such a departure was unwarranted

would clearly be subject to plain error review. I fail to see how

the absence of an objection to the amount of forfeiture is

distinguishable. 

8

determine the precise scope of a district court’s independent

obligation, if any, to inquire into the propriety of a stipulated

asset forfeiture embodied in a plea agreement.” Id. However, this

was because “there is ample evidence that the District Court both

understood the statutory requisites for criminal forfeiture and

concluded that they were satisfied on the facts of this case at the

time the sentence was imposed.” Id. at 44. 

II.

As the majority notes, because Berry did not object to the

order of forfeiture, the district court’s decision to impose

forfeiture in the amount of $10,000 is reviewed for plain error.3

Fed. R. Crim. P. 52(b); United States v. Fant, 974 F.2d 559, 564

(4th Cir. 1992). 
4

The record does not reveal any reason that the forfeiture

amount was set at $10,000. The Presentence Investigation Report,

issued on December 3, 2003, indicated that Berry had $15 in known

assets and $212 in unsecured debt. Given that Berry’s charged drug

transactions only amounted to $2,275, it appears that the

Government may have set this amount arbitrarily. At oral argument,

the Assistant United States Attorney admitted that the record does

not reflect how the $10,000 amount was calculated.

9

In this case, there were no “stipulated facts” concerning

forfeiture for the district court to consider because Berry did not

plead guilty pursuant to a written plea agreement. The district

court judge also did not make any inquiry into what facts supported

the forfeiture of $10,000. Similarly, the Government did not

proffer any evidence to support a forfeiture of that amount. In

short, no evidence supported a factual nexus between the drug

crimes to which Berry pled guilty and the $10,000 forfeiture

amount.4 In light of the clear language of § 853, Rule 32.2, and

the Court’s holding in Libretti, this was “error” under prong one

of the plain error analysis as set out in United States v. Olano,

507 U.S. 725, 732 (1993). This error was also “plain” under prong

two because Libretti explicitly stated that § 853 included a

factual nexus requirement. See Olano, 507 U.S. at 732 (explaining

that “plain” is synonymous with clear or equivalently obvious);

United States v. Neal, 101 F.3d 993, 998 (4th Cir. 1996)

(explaining that an error is clear or equivalently obvious “if the

settled law of the Supreme Court or this circuit establishes that

an error has occurred”).
10

Although such error occurred, Berry must also demonstrate that

the error affected his “substantial rights.” In most cases, this

means that the error must have been prejudicial in that it affected

the outcome of the district court proceedings. Olano, 507 U.S. at

734. The majority reasons that any error did not affect Berry’s

substantial rights because his forfeiture and his fine were part of

a single, integrated sentence in which the district court judge

assessed a lower fine amount than that authorized by statute and

the Sentencing Guidelines. However, in imposing a smaller fine,

the district court judge specifically noted at sentencing: “The

Court finds that you are without the ability to satisfy a fine in

the prescribed range or pay interest.” J.A. 36. This finding was

in accordance with U.S.S.G. § 5E1.2, which gives a court authority

to impose a smaller fine if the defendant establishes that he is

unable or not likely to become able to pay all of the required

fine. See U.S.S.G. § 5E1.2 (e). 

The judge then noted that, “You will forfeit property to the

United States as specified in the final order of forfeiture.” J.A.

36. The judge did not mention the $10,000 forfeiture amount or tie

that forfeiture amount to his finding that Berry was without the

ability to pay the fine. Thus, neither the judge’s findings at

sentencing nor other evidence in the record support the majority’s

assertion that a reduction in the amount of forfeiture may have

resulted in a commensurate increase in the amount of fine imposed.
11

The Fourth Circuit’s decision in United States v. Maxwell, 285

F.3d 336 (4th Cir. 2002), supports a finding that this error

affected Berry’s substantial rights. In Maxwell, the court

conducted plain error review when a judge sentenced a defendant to

a longer term of supervised release than that allowed by statute.

285 F.3d at 339. After finding that prongs one and two of Olano

were met, the court found that the error affected the defendant’s

substantial rights because “the terms and conditions of supervised

release are a substantial imposition on a person’s liberty.” Id.

at 342. Likewise, the forfeiture here is a term of Berry’s

supervised release. It is a term that will likely subject Berry to

much financial hardship and also restrain him because he is now

subject to a $10,000 debt after he serves his sentence—a

considerable amount. Therefore, I would find that the district

court’s imposition of the $10,000 forfeiture as a condition of

Berry’s supervised release, without any evidence suggesting that

such a forfeiture amount was correct, affected Berry’s substantial

rights.

The last consideration, whether this error seriously affects

the fairness, integrity or public reputation of judicial

proceedings, is usually more difficult to demonstrate. However,

our holding in Maxwell suggests that it may be “fundamentally

unfair” to uphold a plain error that substantially affects one’s
5

There is some authority that unobjected to errors in

sentencing should be reviewed with a less deferential standard as

the costs of resentencing are lower than the costs of retrial. In

United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002), the Second

Circuit stated:

We have also noted that noticing unobjected to errors

that occur at trial precipitates an entire new trial that

could have been avoided by a timely objection, whereas

correcting a sentencing error results in, at most, only

a remand for resentencing, or as, in this case, for a

modification of the allegedly erroneous condition of

supervised release. Accordingly, although the Government

is correct that plain error review applies, it appears

that in the sentencing context there are circumstances

that permit us to relax the otherwise rigorous standards

of plain error review to correct sentencing errors. 

Id. at 125. 

12

rights during a sentencing proceeding, when a resentencing can

easily occur.5

 Specifically, the court stated, 

the restrictions on a person’s liberty while serving a

term of supervised release are quite substantial. To

refuse to order a resentencing when a defendant will be

required to endure such restrictions on his liberty,

including restrictions on his ability to travel, for

nearly a year longer than required by law, strikes us as

fundamentally unfair.

Maxwell, 285 F.3d at 342-43. Similarly, it is “fundamentally

unfair” to subject Berry to a $10,000 forfeiture when the terms of

his supervised release can be easily modified at resentencing. In

this regard it is entirely reasonable to view a $10,000 forfeiture

as just as, if not more, onerous than subjecting one to an

additional eleven months of supervised release as in Maxwell. 

Yet, aside from this “fundamental unfairness,” this case

involves broader concerns. In Libretti, the Court recognized that
6

By using the term “abuse,” I do not mean to suggest that the

Government acted with any animus towards Berry.

13

it had previously found that broad forfeiture provisions, such as

21 U.S.C. § 853, “carry the potential for Government abuse and ‘can

be devastating when used unjustly.’” 516 U.S. at 43 (quoting

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 634

(1989)). “Nonetheless, [it] concluded that ‘[c]ases involving

particular abuses can be dealt with individually by the lower

courts, when (and if) any such cases arise.’” Id. (quoting Caplin

& Drydale, 491 U.S. at 635). Because the facts of this case

indicate that the Government imposed a forfeiture amount

arbitrarily and without any factual nexus whatsoever to the drug

crimes in question, I conclude that this is such a case of abuse.6

I believe such abuse seriously affects the fairness, integrity

and public reputation of judicial proceedings. First, this

overreaching implicates both the fairness and public reputation of

our judicial system because it undermines a system that is built on

finding facts only through evidence as well as on following

procedural safeguards adequate to protect the public’s rights.

Second, and equally important, is that the forfeiture amount was

imposed neither with any judicial finding that such an amount was

appropriate nor any evidence in the record to justify a $10,000

forfeiture. In this regard, this case directly and seriously
14

affects the integrity of our judicial system, a system in which the

judge must be the arbiter of such forfeiture findings. 

III.

Accordingly, as I would find that it was plain error to

subject Berry to a $10,000 forfeiture without establishing a

factual nexus between this amount and his drug crimes, I

respectfully dissent.