[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-11432

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

versus

ALAN TRENT HARLEY, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cr-00235-PGB-LRH-1

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2 Opinion of the Court 21-11432

Before WILSON, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:

The Government appeals Alan Harley’s sentence of 15 

months’ imprisonment for wire fraud. It argues the court erred by 

crediting Harley’s forfeiture toward his restitution obligation and

lacked jurisdiction to modify the forfeiture order and judgment beyond the timeframe provided by Federal Rule of Criminal Procedure 35(a). After review,1 we vacate and remand. 

District courts must order restitution in the full amount of 

each victim’s loss in wire fraud cases. United States v. Dickerson, 

370 F.3d 1330, 1335-36 (11th Cir. 2004). Imposition of forfeiture is 

mandatory if a statute states that courts shall order forfeiture. 

United States v. Hatum, 969 F.3d 1156, 1162 (11th Cir. 2020), cert. 

denied, 142 S. Ct. 72 (2021). If a person is convicted of wire fraud 

and the government provides notice of the forfeiture in the indictment, the court shall order forfeiture. 28 U.S.C. § 2461(c); United 

States v. Foley, 508 F.3d 627, 635 (11th Cir. 2007). 

A defendant is not entitled to offset his restitution obligation 

by the value of property forfeited to the government because 

1 We review de novo the legality of restitution and forfeiture orders, a finding 

that a fine is constitutionally excessive, and questions of jurisdiction. United 

States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003); United States v. Hatum, 

969 F.3d 1156, 1162 (11th Cir. 2020), cert. denied, 142 S. Ct. 72 (2021); United 

States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002).

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21-11432 Opinion of the Court 3

forfeiture and restitution serve different purposes. United States v. 

Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014). A district court generally has no authority to order such an offset. Id. If the funds from 

forfeiture and restitution go to different parties, requiring a defendant to pay both forfeiture and restitution does not result in an impermissible double recovery. United States v. Hernandez, 803 F.3d 

1341, 1344 (11th Cir. 2015). 

The Eighth Amendment prohibits the imposition of excessive fines. U.S. Const. amend. VIII. A fine is excessive if it is grossly 

disproportionate to the gravity of an offense. United States v. Sperrazza, 804 F.3d 1113, 1126-27 (11th Cir. 2015). Forfeiture is generally constitutional if the value of the forfeited property is within or 

near the range of fines permitted by the Guidelines. Id. A defendant who derives pecuniary gain from an offense or causes another

person to suffer a pecuniary loss may be fined up to twice his gross 

gain or twice the gross loss. 18 U.S.C. § 3571(d). 

Crediting Harley’s forfeiture obligation toward the restitution amount was erroneous.2 The court was required to impose 

forfeiture. 28 U.S.C. § 2461(c); Foley, 508 F.3d at 635. Harley was 

not entitled to have his restitution offset by his forfeiture, and the 

court lacked authority to order it. See Joseph, 743 F.3d at 1354. 

2 The court’s oral forfeiture pronouncement does not override the forfeiture 

and judgment because there is no unambiguous conflict. See United States v. 

Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (stating if an orally pronounced 

sentence unambiguously conflicts with the written judgment, the pronouncement controls). 

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4 Opinion of the Court 21-11432

Ordering Harley to pay both forfeiture to the Government and restitution to Medicare did not result in an impermissible double recovery. See Hernandez, 803 F.3d at 1344. Harley’s combined restitution and forfeiture obligations, equal to double the loss he 

caused of $876,893.63, was presumptively not an excessive fine because it was within the Guidelines fine range. See Sperrazza, 804 

F.3d at 1126-27. Furthermore, a fine of double the loss Harley 

caused was not grossly disproportionate to Harley’s offense of defrauding Medicare for nearly a million dollars. 

Accordingly, we vacate and remand.3

VACATED AND REMANDED. 

3 The court originally entered judgment on March 25, 2021. The court did not 

address the Government’s motion for clarification of its forfeiture order until 

June 22, 2021. The Government’s appeal is not mooted by the court’s correction of its error because the court amended its forfeiture order and judgment 

beyond the 14 days provided by Rule 35(a) and thus lacked jurisdiction. Fed. 

R. Crim. P. 35(a); United States v. Phillips, 597 F.3d 1190, 1197 (11th Cir. 2010)

(providing a district court may correct a sentence within the time provided by 

Rule 35(a), but lacks jurisdiction to modify a sentence outside of that 

timeframe). 

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