United States v. Arne Soreide , 522 F. App'x 516 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14598
Non-Argument Calendar
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D.C. Docket No. 0:03-cr-60235-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNE SOREIDE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 14, 2013)
Before DUBINA, Chief Judge, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Appellant Arne Soreide appeals the district court’s order denying his pro se
motion, pursuant to Federal Rule of Criminal Procedure 36 (“Rule 36”), to correct
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an alleged clerical error from his 2006 resentencing. As background, Soreide was
convicted of 68 counts, including conspiracy to commit wire fraud, filing a
fraudulent tax return, filing a fraudulent corporate tax return, mail and wire fraud,
money laundering, and engaging in prohibited monetary transactions. Soreide was
subject to a criminal forfeiture, of which the government provided Soreide with
notice in his indictment. Following his conviction, the district court promptly
entered a preliminary order of forfeiture for real property at 195 Alexander Palm
Road, Boca Raton, Florida, and a monetary judgment of $7.5 million, and a second
preliminary order of forfeiture for the proceeds from the sale of a Days Inn and
Suites Hotel located in Jacksonville, Florida, as substitute assets. During its
original sentencing, the court orally adopted the two preliminary forfeiture orders
and provided for forfeiture of the property in its written judgment. Subsequently,
the court entered two more preliminary orders for forfeiture of the substitute assets
of Soreide’s interest in the proceeds of an insurance policy held by Utica Mutual
Insurance Company in the sum of $99,327.98, and Soreide’s interest in the
proceeds of the sale of 550 SE 9th Street, Delray Beach, Florida.
On direct appeal, we affirmed Soreide’s convictions, but vacated his
sentence and remanded for resentencing under an advisory sentencing guidelines
scheme. United States v. Soreide, 177 F. App’x 31, 34-35 (11th Cir. 2006)
(unpublished). On remand for resentencing, the district court: (1) incorporated all
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four preliminary orders of forfeiture into its oral judgment; (2) incorporated all
four preliminary orders into its amended written judgment; and (3) specified the
forfeited properties and monetary judgment in the amended written judgment. The
court also entered final orders of forfeiture for each of the forfeited properties.
In his Rule 36 motion, Soreide requested that the district court comply with
Federal Rule of Criminal Procedure 55, and Federal Rules of Civil Procedure
54(b), 58(b), and 79(a) and set out his forfeiture order and monetary judgment in a
separate document and properly record the information on the docket. The district
court denied Soreide’s Rule 36 motion without comment.
On appeal, Soreide argues that his interests in the properties were never
forfeited because the district court did not orally pronounce forfeiture at his
original sentencing hearing. He also claims that the amended written judgment
conflicts with the oral pronouncement at his resentencing. Finally, Soreide argues
that his sentence should be vacated because the district court deleted 46 entries
from the docket, and his restitution order must be changed to “joint and several”
with another individual. In his reply brief, he adds that his motion did not rely on
any Federal Rules of Civil Procedure, but referenced them as they are referenced in
the Advisory Committee Notes to Federal Rule of Criminal Procedure 55.
We review de novo the district court’s application of Rule 36. United States
v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). Rule 36 provides that “the court
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may at any time correct a clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight or omission.”
Fed.R.Crim.P. 36. However, Rule 36 “cannot be used . . . to make a substantive
alteration to a criminal sentence.” United States v. Pease, 331 F.3d 809, 816 (11th
Cir. 2003).
A criminal forfeiture occurs when a defendant is divested of the profits of
the illegal activity for which he was convicted. United States v. Connor, 752 F.2d
566, 576 (11th Cir. 1985). Federal Rule of Criminal Procedure 32.2 (“Rule 32.2”)
outlines the procedure that a court must follow for criminal forfeitures. First, Rule
32.2 requires the government to afford the defendant notice in the indictment that it
intends to seek the forfeiture of property as part of the defendant’s sentence.
Fed.R.Crim.P. 32.2(a). Second, following a guilty verdict or plea, the district court
must determine what property is subject to forfeiture and then it “must promptly
enter a preliminary order of forfeiture setting forth the amount of any money
judgment, directing the forfeiture of specific property, and directing the forfeiture
of any substitute property if the government has met the statutory criteria.”
Fed.R.Crim.P. 32.2(b)(1)-(2). At sentencing, the preliminary order of forfeiture
becomes final “as to the defendant.” Fed.R.Crim.P. 32.2(b)(4)(A). The district
court must include the forfeiture when orally pronouncing the sentence or
otherwise ensure the defendant’s knowledge of the forfeiture and must include the
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order in the defendant’s written judgment. Fed.R.Crim.P. 32.2(b)(4)(B). The
court’s preliminary order of forfeiture becomes final unless a third party asserts an
interest in the property, in which case the court must enter a final order of
forfeiture. Fed.R.Crim.P. 32.2(c)(2).
“[C]riminal forfeiture is part of a defendant’s sentence.” United States v.
Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). Rule 32.2 “contemplates final
disposition of forfeiture issues, as regards a defendant, at the time of sentencing.”
United States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002). “[A]ll
post-sentencing activities authorized by Rule 32.2 concern third-party interests.”
Id. Therefore, a forfeiture error is appealable by a defendant only in the context of
a sentence appeal. See Pease, 331 F.3d at 817 (holding that the government’s
challenge to a judgment’s lack of a forfeiture order was not before us because the
government did not appeal the defendant’s sentence). A defendant may not
challenge a criminal forfeiture order under Federal Rule of Civil Procedure 60(b)
because the civil rules do not provide for relief in a criminal case. United States v.
Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (holding that, rather than filing a
Rule 60(b) motion, a party should challenge the forfeitures on direct appeal).
Soreide was subject to a criminal, not civil, forfeiture, and we conclude from
the record that the district court complied with Rule 32.2. Its oral pronouncement
at resentencing incorporated the four preliminary orders of forfeiture, and the
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written judgment correctly listed the assets from those preliminary orders. To the
extent Soreide attempted to rely on Federal Rule of Criminal Procedure 55, this
rule does not require that the order of forfeiture be on a separate docket entry.
Furthermore, there is no error stemming from Soreide’s original judgment because
this court has already vacated that sentence. Finally, Soreide’s newly raised
arguments regarding potentially deleted docket entries and the restitution order are
outside the scope of the order being appealed, and, thus, we decline to consider
them. Accordingly, because there is no clerical error in his judgment, the district
court did not err by denying Soreide’s motion and we affirm the district court’s
order.
AFFIRMED.
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