IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30943

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

FRED DOUGLAS BROOKS, III, also known as PJ Brooks, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:14-CR-86-1

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

Fred Douglas Brooks, III challenges his conviction and sentence.

Because Mr. Brooks fails to demonstrate that he was deprived of the right to 

an attorney of his choosing or that his plea was not knowing and voluntary, we 

AFFIRM his conviction. However, we VACATE and REMAND for 

resentencing.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 12, 2020

Lyle W. Cayce

Clerk

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I.

Fred Douglas Brooks, III pleaded guilty to one count of conspiring to 

distribute one kilogram or more of heroin and one count of conspiring to commit 

money laundering. At re-arraignment, the district court determined Mr. 

Brooks’s plea was knowing and voluntary and accepted the plea agreement. 

Mr. Brooks specifically stated that the plea set forth in the written plea 

agreement constituted his entire agreement with the Government, that no one 

promised him anything, other than as set forth in the plea agreement, to 

induce his guilty plea, and that no one threatened him or forced him to plead

guilty. 

Before sentencing, the government requested a downward departure 

because of Mr. Brooks’s cooperation. The request was that Mr. Brooks be

sentenced to 216 months. Mr. Brooks filed a sentencing memorandum in which 

he claimed that the prosecutors had stated, before the pleas were entered, that 

the Government would try to get him a ten-year sentence. Julie Tizzard, Mr. 

Brooks’s counsel, also acknowledged in the memorandum that she had heard 

the prosecutors mention the ten-year objective. The government denied any 

ten-year goal. 

At sentencing, Tizzard again brought up the alleged representations of a 

ten-year goal. The district court observed that at re-arraignment it had told 

Mr. Brooks he faced a minimum of twenty years to life, and Mr. Brooks said he 

understood. The court also explained that when they asked Mr. Brooks 

whether anyone, including his own attorney, “had promised him what his 

sentence would be,” Mr. Brooks said no. The district court then sentenced Mr. 

Brooks to concurrent 216-month prison sentences, ten years of supervised 

release on the drug trafficking conviction, and three years of supervised release 

on the money laundering conviction. At sentencing, the district court asked the 

government whether the case involved forfeiture. The assistant United States 

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attorney answered that “[t]here may well be . . . but I think some of it was 

pursued in Maryland. We will file any appropriate motions if necessary.” The 

district court never orally pronounced forfeiture, but the written judgment 

ordered forfeiture consistent with the superseding indictment. 

After sentencing, Mr. Brooks told the court he wanted to appeal. The 

district court directed Ms. Tizzard to file a notice of appeal. never did. About 

one year later, Mr. Brooks retained new counsel who filed a § 2255 motion on 

his behalf alleging that he was denied “the right to counsel of choice” and that 

Ms. Tizzard had rendered ineffective assistance of counsel by advising him to 

accept the plea agreement and failing to file a notice of appeal. An affidavit by 

Ms. Tizzard was attached to the motion as an exhibit. The district court held 

an evidentiary hearing in which Mr. Brooks and Ms. Tizzard testified

regarding Mr. Brooks’s alleged request for an appeal.

The district court found that Ms. Tizzard failed to appeal as Mr. Brooks 

desired. It granted Mr. Brooks an out-of-time appeal by ordering re-entry of 

judgment with a date of August 2, 2018. Because the district court considered 

the remaining § 2255 claims premature, no argument was entertained about 

the other issues raised in the motion and they were dismissed without 

prejudice. Mr. Brooks then appealed from the new final judgment. 

II.

Mr. Brooks raises four claims on appeal. He challenges his conviction 

arguing that the government interfered with his right to retain counsel of his 

own choosing and that his plea was not knowing and voluntary because it was

based on an unkept promise of a ten-year goal. He also challenges his sentence, 

asserting that the district court violated Federal Rule of Criminal Procedure 

32.2 when it failed to orally pronounce forfeiture at sentencing, and that his 

trial counsel was ineffective by failing to contest criminal forfeiture. We affirm 

Mr. Brooks’s conviction, vacate and remand to the district court for 

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resentencing, and determine that his ineffective assistance of counsel claim is 

moot. 

A.

The first issue Mr. Brooks raises is that the government interfered with 

his right to retain counsel of his own choice. Mr. Brooks concedes that we 

review this unpreserved issue for plain error. See United States v. Ebron, 683

F.3d 105, 129 (5th Cir. 2012). “To succeed on plain error review, an appellant 

must show (1) a forfeited error, (2) that is clear or obvious, and (3) that affects 

[his] substantial rights.” United States v. Cordova-Soto, 804 F.3d 714, 722 (5th 

Cir. 2015). 

Mr. Brooks claims that he had planned to hire his own private attorney 

to represent him in his trial. But he says that the prosecution threatened him 

and forced him to accept appointed counsel, violating his Sixth Amendment 

rights. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 

(1989) (explaining that the Sixth Amendment includes an individual’s right to 

“spend his own money to obtain the advice and assistance of counsel” (internal 

quotation marks omitted)); Wheat v. United States, 486 U.S. 153, 159 (1988).

Mr. Brooks’s argument fails because he has not demonstrated a “clear or

obvious” error. The statement that Mr. Brooks describes in his brief—that he 

had to accept an appointed attorney or suffer adverse consequences—is not 

reflected in the evidence he cites: Ms. Tizzard’s affidavit and testimony. 

Neither account describes a threatened consequence. Ms. Tizzard testified at 

the evidentiary hearing that “[a]t that initial meeting, one of the people that 

were present was a U.S. attorney from Baltimore. That U.S. attorney from

Baltimore basically looked at [Mr. Brooks] and said, ‘You can’t hire your own 

attorney.’” And in her affidavit, Ms. Tizzard similarly stated that: “The AUSA 

from Baltimore informed Mr. Brooks . . . that he was not to hire a private 

lawyer.” Neither account includes a threatened consequence. 

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Moreover, Mr. Brooks stated under oath at his arraignment that he 

understood he had the right to retain and compensate an attorney of his choice. 

And, further to his detriment, Mr. Brooks can point to no plain error case 

involving a claim of an intentional Sixth Amendment violation substantially 

similar to the claim in the instant case. United States v. Trejo, 610 F.3d 308, 

319 (5th Cir. 2010) (explaining that a claim that is “not entirely clear under 

the existing case authority” is “doom[ed]” under plain error review (internal 

quotation marks omitted)); see also United States v. Dominguez-Benitez, 542 

U.S. 74, 83 n.9 (2004) (stating that relief under the plain-error standard is 

“difficult to get, as it should be”). 

The lack of a present threat despite Mr. Brooks’s claim that he was 

“threatened,” the contradiction between his argument on appeal and his 

statement at re-arraignment, and the lack of any existing case authority

precludes Mr. Brooks from demonstrating plain error. See United States v. 

Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017) (“[Defendant’s] contention 

that the district court had an improper, off-the-record discussion with 

probation officers is speculative at best, given that the contents of the 

discussion are not in the record. This unsupported, speculative contention does 

not demonstrate reversible plain error.”). 

B.

The second issue Mr. Brooks raises on appeal is that his guilty pleas were

not knowing and voluntary because they were induced by a promise of a tenyear sentence that did not materialize. He asks for relief from his plea bargains 

and convictions. We review a claim of breach of a plea agreement de novo. 

United States v. Loza-Garcia, 670 F.3d 639, 642 (5th Cir. 2012). 

Mr. Brooks has not presented sufficient evidence supporting the alleged 

ten-year promise to overcome his sworn declarations at his plea colloquy. A 

defendant’s “solemn declarations in open court” concerning the knowing and 

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voluntary nature of the plea “carry a strong presumption of verity.” United 

States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009) (quoting United States v. 

Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001)). At his plea colloquy, the 

district court asked Mr. Brooks whether “[o]ther than what’s contained in your 

plea agreement, [had] anyone made any promises that made you decide 

to . . . plead guilty,” to which Mr. Brooks answered “[n]o, Your Honor.” He was 

also asked if he understood that under Count 1 he faced a mandatory minimum 

sentence of twenty years and a maximum of life, to which he responded “Yes, 

I do, sir.” 

Mr. Brooks concedes that his argument is inconsistent with the 

statements he made during his plea colloquy. While this “is not an absolute 

bar to his contentions here, . . . it imposes upon him a ‘heavy burden.’” United 

States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (quoting Barnes v. United 

States, 579 F.2d 364, 366 (5th Cir. 1978)). Mr. Brooks cannot meet this burden. 

In support of his contention that a “ten-year promise” was made, Mr. Brooks 

relies on Ms. Tizzard’s affidavit and testimony from the § 2255 hearing. In the 

affidavit, Ms. Tizzard testifies that she heard the AUSAs describe a ten-year 

goal and that she believed the AUSAs would recommend a ten-year sentence. 

At the hearing, Ms. Tizzard testified that once she asked an AUSA “what he 

[foresaw], . . . and [that] he represented to [Ms. Tizzard] that [the Government 

was] going to attempt to get [Mr. Brooks] a sentence of around 10 years.” But 

Ms. Tizzard also testified that the AUSA said that he could not “commit to 

that.” 

While Ms. Tizzard’s testimony indicated that she believed that the 

government had a goal of a ten-year sentence, it specifically contradicts Mr. 

Brooks’s allegation that the AUSA had promised a ten-year sentence. This 

evidence is insufficient to overcome the strong presumption of verity of Mr. 

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Brooks’s sworn statements in his plea colloquy. Therefore, we hold that Mr. 

Brooks’s conviction was not the result of an unconstitutional guilty plea.1

C.

Mr. Brooks also argues that the district court violated Rule 32.2 of the 

Federal Rules of Criminal Procedure by failing to orally pronounce forfeiture 

at sentencing. Mr. Brooks could not have raised the issue in the district court, 

as he “had no opportunity at sentencing to consider, comment on, or object to 

[matters] later included in the written judgment” that were absent from the 

oral pronouncement. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 

2006).2 Therefore, despite Mr. Brooks not raising the district court’s 

noncompliance with Federal Rule of Criminal Procedure 32.2 prior to appeal, 

we review this issue for an abuse of discretion. Id.

Federal Rule of Criminal Procedure 32.2 sets forth the procedures to be 

followed before a district court may enter a forfeiture judgment in a criminal 

case. See United States v. Marquez, 685 F.3d 501, 509 (5th Cir. 2012). The 

indictment must provide the defendant with notice that the Government 

intends to seek forfeiture. Fed. R. Crim. P. 32.2(a). Next, “[a]s soon as practical” 

after the guilty plea, the court must determine the property subject to 

forfeiture and decide “whether the government has established the requisite 

nexus between the property and the offense.” Id. 32.2(b)(1)(A). And then, the 

court “must promptly enter a preliminary order of forfeiture,” generally in 

1 Mr. Brooks asks, in the alternative, that the court “remand his case for an 

evidentiary hearing on the breach of the plea agreement issues presented in his sentencing 

memorandum.” As he cites no basis in law for issuing this type of relief, we do not grant his 

request. 

2 We acknowledge that we heard en banc oral argument in United States v. Diggles, 

928 F.3d 1120 (5th Cir. 2019) (mem.), on September 25, 2019. We note that the issue in the 

Diggles case is distinct from the issue here. The oral pronouncement of forfeiture is a separate 

question governed by procedural rules regarding forfeiture in Federal Rules of Criminal 

Procedure 32.2. 

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advance of sentencing describing the property to be forfeited. Id. 32.2(b)(2)(A). 

The preliminary order becomes final to the defendant “[a]t sentencing—or at 

any time before sentencing if the defendant consents.” Id. 32.2(b)(4)(A). “The 

court must include forfeiture when orally announcing the sentence or must 

otherwise ensure that the defendant knows of the forfeiture at sentencing.” Id.

32.2(b)(4)(B). The procedures under Rule 32.2 “are not empty formalities” and 

instead “serve a vital function in ensuring that a defendant has notice of a 

criminal forfeiture and an opportunity to challenge any forfeiture sought by 

the government.” Marquez, 685 F.3d at 509. Thus, they are “mandatory.” Id.

Here, the district court’s oral pronouncement of Mr. Brooks’s sentence 

did not include forfeiture. However, forfeiture was included in the written 

judgment. Given the clear requirements of Rule 32.2(b)(4)(B), it is apparent on 

the record that the district court made a legal error by failing to announce 

forfeiture at sentencing. Therefore, we vacate the sentence and remand to the 

district court for resentencing. See United States. v. Sharma, 703 F.3d 318, 327 

(5th Cir. 2012). 

D.

Mr. Brooks’s final issue raised on appeal is that his trial counsel was 

ineffective for failing to contest criminal forfeiture. Because we vacate the 

forfeiture imposed in the written judgment and remand to the district court for 

resentencing, his claim for ineffective assistance is moot. See United States v. 

Whittington, 269 F. App’x. 388, 403 (5th Cir. 2008) (“Because [Defendant’s] 

sentence has been vacated and remanded and her ineffective assistance of 

counsel claim pertains only to sentencing, her claim of ineffective assistance of 

counsel is moot.”); see also United States v. Strother, 387 F. App’x. 508, 510 (5th 

Cir. 2010) (explaining that because the defendant was granted a new trial, his 

ineffective assistance of counsel claim pertaining to his original trial is moot). 

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III.

For the forgoing reasons, we AFFIRM Mr. Brooks’s conviction, VACATE 

the sentence, and REMAND for resentencing. 

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