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18-2526-cr 

United States v. Joshua Glenn 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 7th day of November, two thousand nineteen. 

PRESENT: JOSÉ A. CABRANES, 

REENA RAGGI, 

Circuit Judges, 

 EDWARD R. KORMAN, 

District Judge*

 

UNITED STATES OF AMERICA, 

Appellee, 18-2526-cr 

v. 

JOSHUA GLENN, 

Defendant-Appellant.

 

FOR APPELLEE: Jo Ann M. Navickas (James P. McDonald, 

Tanisha R. Payne on the brief), Assistant 

United States Attorneys, for Richard P. 

Donoghue, United States Attorney for the 

Eastern District of New York, Brooklyn, 

NY. 

*

 Judge Edward R. Korman, of the United States District Court for the Eastern District of New 

York, sitting by designation. 
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FOR DEFENDANT-APPELLANT: Sam A. Schmidt, Law Office of Sam. A. 

Schmidt, New York, NY. 

Appeal from an August 23, 2018 judgment of the United States District Court for the 

Eastern District of New York (LaShann DeArcy Hall, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is 

AFFIRMED.

Defendant-Appellant Joshua Glenn (“Glenn”) stands convicted based on his guilty plea of 

one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), three 

counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, and one count of unlawful 

use and brandishing of a firearm during a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(ii). On this appeal, Glenn challenges three calculations made during sentencing by the 

District Court: the calculation of loss under the Sentencing Guidelines; the calculation of restitution, 

which was based on the Guidelines calculation of loss; and the calculation of forfeiture, which was 

based on the calculation of restitution. Although Glenn does not request an adjustment of his 

below-Guidelines sentence for imprisonment, he does seek to have his restitution and forfeiture 

amounts either adjusted downward or vacated. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal. 

I: Loss Calculation for Sentencing Guidelines

“We review the district court’s factual findings on loss for clear error.” United States v. 

Carboni, 204 F.3d 39, 46 (2d Cir. 2000) (internal quotation marks and citations omitted). “A finding 

is clearly erroneous when although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.” United 

States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007) (internal quotation marks and citations omitted). 

Glenn argues that the Government did not prove by a preponderance of the evidence that 

the loss from one of the three robberies to which he pleaded guilty—the robbery of a Verizon store 

on November 15, 2016—exceeded $20,000. Without such proof, he argues, the District Court 

should not have given him a one-point increase in his Guidelines offense level. See U.S.S.G. 

§ 2B3.1(b)(7). Specifically, he contends that one of the documents on which the District Court 

rested its calculation was insufficiently reliable. That document—an inventory sheet provided to the 

New York Police Department (“NYPD”) by a T-Mobile store employee after an April 21, 2017 

robbery of that store—was used to extrapolate the value of many of the cellular phones stolen 

during the November 15, 2016 Verizon store robbery. Glenn contends that the use of this 

document from one robbery to estimate the loss for another robbery amounted to clear error. We 

disagree. 
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“The district court need not establish the loss with precision but rather need only make a 

reasonable estimate of the loss, given the available information.” Carboni, 204 F.3d at 46. Here, the 

District Court reasonably extrapolated from the “available information” in calculating the amount of 

loss. The District Court knew the models of the cell phones that Glenn and his co-conspirator stole 

from the Verizon store on November 15, but did not know the values for all of those models. In 

using the document provided by the NYPD after the April 21 robbery, the District Court deployed 

a sensible methodology to determine the likely values. It referred to a similar cell phone store (TMobile) with a similar inventory within the same geographic market as the Verizon store, and it 

located the values that the T-Mobile store had used for models similar or identical to those stolen 

from the Verizon store. It then calculated the total value of the cell phones stolen from the Verizon 

store using those “adopted” values. Given the clarity of this method, and given the reliability of the 

data used, we are not left with a “definite or firm conviction that a mistake has been committed.” 

Guang, 511 F.3d at 122. Accordingly, we find that there was no clear error by the District Court. 

II: Restitution Calculation

“Ordinarily, we review a district court’s order of restitution under the [Mandatory Victims 

Restitution Act of 1996] for abuse of discretion. However, where . . . a defendant fails to object to 

the restitution order at the time of sentencing, our review is for plain error.” United States v. Zangari, 

677 F.3d 86, 91 (2d Cir. 2012) (citations omitted). Here, Glenn admitted to the District Court that 

he had “no further objection to restitution being set at $28,879.14.” App’x 100 (emphasis added). We 

assume that Glenn was thus preserving his objection to the District Court’s methodology for 

extrapolating loss but forfeiting (if not waiving) any objection to the adjustment from $25,521 to 

$28,879.14 made after the sentencing hearing to correct an inadvertent omission. 

The preserved methodology challenge is no more successful as to restitution than it was as 

to the Sentencing Guidelines. “[O]ur case law reflects the settled understanding among courts of 

appeals that a ‘reasonable approximation’ will suffice [in the calculation of restitution], especially in 

cases in which an exact dollar amount is inherently incalculable.” United States v. Gushlak, 728 F.3d 

184, 195–96 (2d Cir. 2013) (citations omitted). Moreover, the Guidelines loss calculation may serve 

as the basis for a restitution calculation because “the quantity and quality of evidence the district 

court may rely upon to determine the amount of loss is the same in both contexts.” United States v. 

Germosen, 139 F.3d 120, 130 (2d Cir. 1998). Here, for restitution as for the Guidelines, the quantity 

and quality of the evidence allowed the District Court to achieve a “reasonable approximation” of 

the “actual loss” suffered by the victims. Accordingly, there was no error in the restitution 

calculation. 

As for the District Court’s upward adjustment of the restitution amount twenty-one days 

after the sentencing hearing, assuming, arguendo, that Glenn’s failure to object forfeits rather than 

waives the issue, our review is limited to plain error, which Glenn cannot show here. See United States 

v. Marcus, 560 U.S. 258, 262 (2010) (stating plain error standard). As the Supreme Court has held, 
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even when the District Court misses the statutory ninety-day deadline for imposing a restitution order, 

it may still proceed to order restitution as long as it “made clear prior to the deadline’s expiration 

that it would order restitution, leaving open . . . only the amount.” Dolan v. United States, 560 U.S. 

605, 607 (2010). Here, the District Court clearly said it would order restitution and left open “only 

the amount” by asking the parties, at the sentencing hearing, to provide briefing on alternative 

calculations. It then settled on a final calculation within twenty-one days of the sentencing, well 

within the otherwise flexible statutory time frame. Accordingly, there was no plain error in the 

timeliness of the restitution calculation. 

III: Forfeiture Calculation

“Because criminal forfeiture is viewed as part of the sentencing process, the government 

need prove facts supporting forfeiture only by a preponderance of the evidence. We review the 

district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Gaskin, 

364 F.3d 438, 461–62 (2d Cir. 2004) (internal quotation marks and citations omitted). 

 Glenn argues that the District Court erred in basing its forfeiture calculation on its 

restitution calculation. He further argues that the District Court erred in dividing the restitution 

figure by two in order to allocate one-half of the forfeiture amount to Glenn’s co-conspirator and 

the other half to Glenn. Glenn suggests that this one-half split runs afoul of Honeycutt v. United States, 

137 S. Ct. 1626 (2017), which held that a forfeiture amount must be “limited to property the 

defendant himself actually acquired.” Id. at 1635. Glenn argues that he “actually acquired” less than 

the forfeiture amount ordered. He suggests, first, that it was his partner in the robberies who was the 

“undisputed leader and organizer,” indicating that it was his partner who “actually acquired” the 

property subject to forfeiture. App. Br. 21. Additionally, he suggests that there may have been a 

getaway driver during the November 15 robbery, so that if there is to be evenly divided liability, the 

driver should at least be liable for forfeiture as well. We disagree with both arguments. 

Assuming, without deciding, that Honeycutt, which interpreted 21 U.S.C. § 853, applies 

equally to forfeiture orders pursuant to 18 U.S.C. § 981(a)(1)(C), see United States v. Fiumano, 721 F. 

App’x 45, 51 n.3 (2d Cir. 2018) (identifying open question), the forfeiture order here satisfies 

Honeycutt’s requirements. The relevant facts of the November 15 robbery, as described in the PreSentence Report (“PSR”), went uncontested at sentencing.1

 We therefore accept them as true, since 

“if a defendant fails to challenge factual matters contained in the presentence report at the time of 

1

 Glenn did object to portions of PSR ¶¶ 13, 24, and 50, in which both Glenn and Johnson are 

described as threatening to shoot the Verizon store employees. This objection was relevant to the 

sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for “threat of death.” However, Glenn did 

not object to the facts relevant for our purposes: those pertaining to the acquisition of property 

during the robbery. 
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sentencing, the defendant waives the right to contest them on appeal.” United States v. Rizzo, 349 

F.3d 94, 99 (2d Cir. 2003). The PSR describes a robbery in which Glenn partnered with Shukri 

Johnson (“Johnson”), and in which both men equally benefited. Both “Glenn and Johnson filled 

their duffel bags with phones and fled the store.” PSR ¶ 13. There is no evidence that one 

supervised the crime nor that only one acquired the property. Nor is there evidence of a third 

person’s involvement as a getaway driver. 

Given these previously uncontested facts, there is no basis to find that the District Court 

clearly erred in calculating or apportioning the forfeiture amount. That the forfeiture amount is a 

function of the restitution amount is sensible and consistent with Honeycutt. The restitution amount 

is a reasonable approximation of the victim’s loss, and the forfeiture amount is a reasonable 

approximation of how much Glenn, as one-half of the criminal operation responsible for the 

November robbery, individually profited. 

CONCLUSION 

We have reviewed all of the arguments raised by Glenn on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the August 23, 2018 judgment of the 

District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk