United States v. McIntosh 1 In the

14-1908-cr
United States v. McIntosh
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM 2020 7
8
A RGUED: O CTOBER 15, 2020 9
D ECIDED: JANUARY 31, 2022 10
11
Nos. 14-1908, 14-3922, 17-2623 12
13
U NITED S TATES OF AMERICA, 14
Appellee-Cross-Appellant, 15
16
v. 17
18
L OUIS MCINTOSH , AKA Lou D, AKA Lou Diamond, AKA G, 19
Defendant-Appellant-Cross-Appellee, 20
21
E DWARD R AMIREZ , AKA Taz, TERRENCE D UHANEY , AKA Bounty 22
Killer, T URHAN JESSAMY , AKA Vay, Q UINCY W ILLIAMS , AKA 23
Capone, TYRELL ROCK, AKA Smurf, NEIL MORGAN, AKA Steely, 24
Defendants. 25
________ 26
27
Appeal from the United States District Court 28
for the Southern District of New York. 29
________ 30
31
Before: WALKER , L OHIER , Circuit Judges, and S TANCEU, Judge.* 32
* Senior Judge Timothy C. Stanceu, of the United States Court of
International Trade, sitting by designation.

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2 No. 14-1908-cr
________ 1
Louis McIntosh appeals various issues arising from his 2017 2
amended judgment of conviction for Hobbs Act robbery and firearm 3
offenses in the Southern District of New York (Sidney H. Stein, J.). In 4
this opinion, we address two of McIntosh’s arguments—first, that the 5
order of forfeiture entered against him should be vacated because the 6
district court failed to enter a preliminary order prior to sentencing, 7
as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B); 8
second, that he was improperly convicted of possessing firearms as a 9
felon, Counts Twelve through Fourteen, because the government did 10
not prove that he knew that he was a felon. As to these issues, we 11
AFFIRM the judgment of the district court. We address his remaining 12
arguments in a separate summary order filed concurrently with this 13
opinion. 14
________ 15
16
S TEVEN Y UROWITZ , Newman & Greenberg LLP, 17
New York, NY, for Defendant-Appellant-Cross- 18
Appellee Louis McIntosh. 19
S ARAH K RISSOFF, Assistant United States Attorney 20
(Thomas McKay, Assistant United States 21
Attorney, on the brief), for Geoffrey S. Berman, 22
United States Attorney for the Southern District of 23
New York, New York, NY, for Appellee-Cross- 24
Appellant United States of America. 25
________ 26
JOHN M. WALKER , JR ., Circuit Judge: 27
Louis McIntosh appeals various issues arising from his 2017 28
amended judgment of conviction for Hobbs Act robbery and firearm 29
offenses in the Southern District of New York (Sidney H. Stein, J.). In 30
this opinion, we address two of McIntosh’s arguments—first, that the 31

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3 No. 14-1908-cr
order of forfeiture entered against him should be vacated because the 1
district court failed to enter a preliminary order prior to sentencing, 2
as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B); 3
second, that he was improperly convicted of possessing firearms as a 4
felon, Counts Twelve through Fourteen, because the government did 5
not prove that he knew that he was a felon. As to these issues, we 6
AFFIRM the judgment of the district court. We address his remaining 7
arguments in a separate summary order filed concurrently with this 8
opinion. 9
BACKGROUND 10
In 2011, Appellant Louis McIntosh and several others were 11
indicted on multiple counts of Hobbs Act robbery and related 12
firearms charges. The charges arose from a series of violent robberies 13
and attempted robberies that occurred between 2009 and 2011. The 14
indictment contained a forfeiture allegation, consistent with 18 U.S.C. 15
§ 98l(a)(1)(C) and 28 U.S.C. § 2461(c), requiring the forfeiture of all 16
proceeds and property resulting from the offenses. 17
In August 2013, a jury in the Southern District of New York 18
convicted McIntosh on all counts.1 The district court sentenced 19
McIntosh to 720 months’ imprisonment and three years of supervised 20
release. The district court also ordered McIntosh to pay restitution 21
and to forfeit $75,000 and a BMW that McIntosh had purchased with 22
robbery proceeds. 23
Before imposing forfeiture, Federal Rule of Criminal Procedure 24
32.2(b) requires the district court to “promptly enter a preliminary 25
order of forfeiture setting forth the amount of any money judgment 26
1 After jury deliberations, the district court directed a judgment of
acquittal on two counts. The district court’s order as to those counts has no
bearing on the issues discussed in this opinion.

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4 No. 14-1908-cr
. . . [and] directing the forfeiture of specific property.”2 “Unless doing 1
so is impractical,” this preliminary order “must” be entered 2
“sufficiently in advance of sentencing to allow the parties to suggest 3
revisions or modifications before the order becomes final.”3 The 4
preliminary order becomes final at sentencing and must be included 5
in the judgment.4 6
In this case, the district court did not enter a preliminary order 7
prior to sentencing, apparently because the government did not 8
submit a proposed order. At sentencing, after verbally ordering 9
forfeiture, the district court instructed the government to propose a 10
formal order of forfeiture within one week, which the government 11
also failed to do. As a result, no written order of forfeiture was 12
entered. 13
After the entry of judgment, McIntosh timely appealed. In 14
2016, on the government’s unopposed motion, we remanded the case 15
pursuant to United States v. Jacobson5 and instructed the government, 16
if it wished to pursue forfeiture, to ask the district court to enter a 17
formal order of forfeiture. The government then filed a proposed 18
order, and McIntosh raised several challenges in response. 19
On August 8, 2017, the district court denied McIntosh’s 20
objections and entered a preliminary order for forfeiture. The order 21
required McIntosh to pay $75,000 in forfeiture and to turn over the 22
BMW, with funds from the sale of the car being credited against the 23
2 Fed. R. Crim. P. 32.2(b)(2)(A).
3 Fed. R. Crim. P. 32.2(b)(2)(B).
4 Fed. R. Crim. P. 32.2(b)(4)(A)-(B).
5 15 F.3d 19 (2d Cir. 1994).

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5 No. 14-1908-cr
$75,000.6 The order was included in an amended judgment filed the 1
same day. McIntosh timely appealed the amended judgment. 2
DISCUSSION 3
I 4
On appeal, McIntosh challenges the forfeiture order, which he 5
says should be vacated because the district court failed to enter a 6
preliminary forfeiture order before sentencing, as required by Federal 7
Rule of Criminal Procedure 32.2(b)(2)(B). We disagree. 8
Nothing in the federal rules sets forth the consequences of a 9
failure by the district court to issue the preliminary order prior to 10
sentencing. We find the Supreme Court’s decision in Dolan v. United 11
States, however, to be instructive.7 There, in a restitution case, the 12
Supreme Court laid out a framework for analyzing “the consequences 13
of [a] missed deadline” when not specified in the relevant statute.8 14
The Court described three kinds of deadlines: “jurisdictional rules” 15
that present an absolute prohibition; “claims-processing rules” that 16
can bar certain actions but also may be waived; and “time-related 17
directives” that are “legally enforceable but [do] not deprive a judge 18
or other public official of the power to take the action to which the 19
deadline applies if the deadline is missed.”9 20
The Dolan Court concluded that a 90-day statutory deadline to 21
order restitution was a time-related directive. The Court considered 22
6 In our accompanying summary order, we vacate the $75,000 restitution
on other grounds and remand the case to the district court for recalculation.
7 560 U.S. 605 (2010).
8 Id. at 610.
9 Id. at 610-11.

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6 No. 14-1908-cr
a number of relevant circumstances. It stated that when “a statute 1
does not specify a consequence for noncompliance with its timing 2
provisions, federal courts will not in the ordinary course impose their 3
own coercive sanction.”10 It examined the text and structure of the 4
statute and determined that the deadline “is primarily designed to 5
help victims of crime secure prompt restitution rather than to provide 6
defendants with certainty as to the amount of their liability.”11 The 7
Court was mindful that preventing restitution would harm victims, 8
“who likely bear no responsibility for the deadline’s being missed and 9
whom the statute also seeks to benefit.”12 This suggested that the 10
deadline is not meant to be a firm prohibition. The Court also cited 11
other cases in which deadlines were interpreted flexibly in order to 12
preserve their purpose or to avoid disproportionally benefiting 13
convicted defendants.13 Finally, it noted that defendants who wished 14
to avoid delay were always free to remind the district court of the 15
statutory deadline.14 Taken together, these circumstances led the 16
Supreme Court to conclude that the restitution deadline is a time- 17
related directive. As a result, so long as the district court makes clear 18
prior to the deadline expiring that it intends to impose restitution, “a 19
sentencing court that misses the 90–day deadline nonetheless retains 20
the power to order restitution.”15 21
We think the considerations that pertained to the restitution 22
order in Dolan similarly apply to the Rule 32.2(b) deadline for 23
10 Id. at 611 (internal quotation marks omitted).
11 Id. at 613.
12 Id. at 613-14.
13 Id. at 614-15.
14 Id. at 616.
15 Id. at 608.

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7 No. 14-1908-cr
forfeiture. The Fourth Circuit adopted this view a year after Dolan 1
when, in United States v. Martin, it applied Dolan’s considerations to a 2
previous version of Rule 32.2(b) and found its deadline to be a time- 3
related directive.16 For several reasons, we agree with the reasoning 4
in Martin and believe it applies with equal force to the current version 5
of the rule. 6
First, Rule 32.2 “does not specify a consequence for 7
noncompliance with its timing provisions.”17 Second, the Federal 8
Rules Advisory Committee’s notes on the revised rule make clear that 9
the deadline to enter the preliminary order is intended to give the 10
parties time “to advise the court of omissions or errors in the order 11
before it becomes final” because there is limited opportunity to do so 12
after judgment is finalized.18 At the same time, the comments make 13
no mention of an interest in giving defendants certainty as to the 14
amount to be forfeited before sentencing. This focus on accuracy, not 15
the defendant’s repose, is consistent with the substantive purpose of 16
forfeiture, which is to “deprive criminals of the fruits of their illegal 17
acts and deter future crimes.”19 Third, because forfeited funds 18
frequently go to the victims of the crime, preventing forfeiture due to 19
the missed deadline would tend to harm innocent people who are not 20
responsible for the oversight.20 Fourth, consistent with examples 21
cited in Dolan, interpreting the deadline rigidly here would 22
disproportionately benefit defendants. And finally, as in Dolan, a 23
defendant concerned about possible delays or mistakes can remind 24
16 662 F.3d 301 (4th Cir. 2011).
17 Dolan, 560 U.S. at 611 (internal quotation marks omitted).
18 Fed. R. Crim. P. 32.2(b) advisory committee’s note to 2009 amendment.
19 Martin, 662 F.3d at 309.
20 Id.

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8 No. 14-1908-cr
the district court of the preliminary order requirement any time 1
before sentencing. 2
Our analysis is reinforced by the decisions of sister circuits that 3
have also found the Rule 32.2(b) deadline to be non-jurisdictional.21 4
Thus, we conclude that Rule 32.2(b)(2)(B) is a time-related directive. 5
Accordingly, the district court’s failure to enter a preliminary order in 6
time does not render the forfeiture invalid. 7
McIntosh raises several counterarguments, none of which are 8
persuasive. He cites an Eleventh Circuit case for the proposition that 9
“strict compliance with the letter of the law by those seeking forfeiture 10
must be required.”22 But Rule 32.2(b)(2)(B) governs the conduct of the 11
district court, not the litigants. The issue here is whether the district 12
court had the authority to enter the order despite its failure to comply 13
with the timing requirements, not whether the government should 14
have been more diligent. Even if the government bears some 15
responsibility for the mistake, Rule 32.2(b)(2)(B)’s status as a time- 16
related directive means that it is not a fatal one. 17
McIntosh also asserts that forfeiture is unlike restitution, which 18
was at issue in Dolan, because restitution is intended to assist the 19
victims of crimes. It is true that forfeiture and restitution serve 20
different purposes: restitution is for “remediating a loss,” while 21
forfeiture is for “disgorging a gain.”23 But that distinction is less 22
material here. Forfeiture also serves other important purposes, and 23
we see no reason why, for purposes of timing, restitution and 24
21 See United States v. Carman, 933 F.3d 614, 617 (6th Cir. 2019); United
States v. Cereceres, 771 F. App’x 803, 804 (9th Cir. 2019); United States v. Farias,
836 F.3d 1315, 1330 (11th Cir. 2016).
22 United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1547 (11th
Cir. 1987).
23 United States v. Torres, 703 F.3d 194, 196 (2d Cir. 2012).

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9 No. 14-1908-cr
forfeiture should be treated differently under these circumstances. 1
McIntosh next argues that he was prejudiced by the delay 2
because his BMW lost value while the forfeiture issue was litigated.24 3
But McIntosh knew that the district court would order forfeiture, and 4
as the district court pointed out, he could have sought an 5
interlocutory sale of the car if he had wished to preserve its value. 6
Doing so would have been consistent with the structure of the rule, 7
which permits the sale of property prior to sentencing but only with 8
the defendant’s consent.25 McIntosh also argues that the government 9
alone is responsible for preserving the value of seized assets, but for 10
support he cites only to an inapposite customs statute.26 McIntosh has 11
not demonstrated prejudice sufficient to void the forfeiture order. 12
McIntosh also points to the structure of Rule 32.2 to argue that 13
the preliminary order deadline must be interpreted strictly. Should 14
the court forget to include the forfeiture order in the final judgment, 15
Rule 32.2(b)(4)(B) permits the judgment to be corrected under Rule 36, 16
which governs the correction of clerical errors. From this provision, 17
McIntosh infers that all the other requirements of the rule, which do 18
not have related correction provisions, are strictly enforceable. But 19
Rule 32.2(b)(4)(B) simply makes clear that forgetting to incorporate 20
the order in the final judgment is a clerical error and should be treated 21
as such. It sheds no light on the treatment of procedural errors. 22
Indeed, the statute at issue in Dolan similarly stated that a sentence 23
24 See United States v. Qurashi, 634 F.3d 699, 705 (2d Cir. 2011) (noting that
Dolan permits us to take into account claimed prejudices resulting from
delays).
25 Fed. R. Crim. P. 32.2(b)(4)(A); Fed. R. Crim. P. 32.2(b) advisory
committee’s note to 2000 amendment.
26 19 U.S.C. § 1612 (requiring the prompt sale of property seized under
customs law).

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10 No. 14-1908-cr
containing an order of restitution can “subsequently be . . . corrected 1
under Rule 35.”27 This provision, however, did not transform the 2
statute’s other requirements into ironclad limits, and neither does 3
reference to Rule 36 in Rule 32.2(b)(4)(B) do so here. 4
Finally, we reject McIntosh’s claim that he should be credited 5
for the value of the BMW at the time it was seized, not its eventual 6
sale price. He cites no authority directly supporting this point, 7
instead relying on statutes that require the government or courts to 8
preserve the value of seized assets. The statutes he cites deal with 9
protecting the interests of lienholders and others with claims on the 10
property, not the individual subject to the forfeiture order.28 Crediting 11
defendants for property depreciation that occurred during litigation 12
and which defendants could likely prevent by requesting a sale 13
would, in most cases, undermine forfeiture’s deterrent value and 14
possibly shortchange victims. 15
II 16
McIntosh also contests his convictions on Counts Twelve 17
through Fourteen for possessing a firearm as a felon. At trial, 18
McIntosh stipulated that he had been convicted of a crime punishable 19
by a year or more in prison, but the stipulation did not state that he 20
was aware of this fact when he possessed the firearms. The 21
government, meanwhile, offered no evidence suggesting that 22
McIntosh was aware of his felon status, but McIntosh did not object. 23
In Rehaif v. United States, the Supreme Court held that the 24
relevant statutes required the government to show “that the 25
defendant knew he possessed a firearm and also that he knew he had 26
27 18 U.S.C. § 3664(o)(1)(A).
28 See 19 U.S.C. § 1612; Fed R. Civ. P., Supp. Rule G(7)(b); 18 U.S.C.
§ 981(g)(6).

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11 No. 14-1908-cr
the relevant [felon] status when he possessed it.”29 On appeal, 1
McIntosh argues that the district court committed plain error when it 2
failed to instruct the jury about the knowledge element of these 3
counts. Plain error arises when, among other requirements, “there is 4
a reasonable probability that the error affected the outcome of the 5
trial.”30 6
McIntosh’s argument is foreclosed by the recent Supreme 7
Court decision Greer v. United States.31 In Greer, the Supreme Court 8
held that, to establish plain error under Rehaif, a defendant must 9
“make an adequate showing on appeal that he would have presented 10
evidence in the district court that he did not in fact know he was a 11
felon when he possessed firearms.”32 McIntosh has offered no such 12
evidence. Consequently, we have “no basis to conclude that there is 13
a ‘reasonable probability’ that the outcome would have been different 14
absent the Rehaif error,” and so we cannot find plain error.33 15
McIntosh argues that the district court’s failure to instruct the 16
jury on the point should, on its own, be enough to establish plain 17
error. But Greer has made clear that “Rehaif errors fit comfortably 18
within the general rule that a constitutional error does not 19
automatically require reversal of a conviction.”34 McIntosh “must 20
29 139 S. Ct. 2191, 2194 (2019).
30 United States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation mark
omitted).
31 141 S. Ct. 2090 (2021).
32 Id. at 2097.
33 Id.
34 Id. at 2100 (quotation marks omitted).

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12 No. 14-1908-cr
satisfy the ordinary plain-error test.”35 He has not done so here, and 1
so we affirm the district court on Counts Twelve through Fourteen. 2
CONCLUSION 3
For the foregoing reasons, as to the issues discussed above, we 4
AFFIRM the judgment of the district court. 5
35 Id.

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