Clarifying Finality of Preliminary Forfeiture Orders and Rule 36 Correction Under Federal Rule 32.2

Introduction

In United States v. Banks, 24-40221 (5th Cir. Jun. 3, 2025), the Fifth Circuit addressed two interconnected issues under Federal Rule of Criminal Procedure 32.2: (1) when a preliminary order of criminal forfeiture becomes final as to the defendant, and (2) whether the district court’s omission of forfeiture from the oral pronouncement and written judgment can be corrected at any time as a clerical error under Rule 36. Defendant Jordan Rashaud Banks pleaded guilty to a methamphetamine-conspiracy charge, received a preliminary forfeiture order for $8,975, but saw no reference to forfeiture at sentencing or in the written judgment. After he appealed, the Government obtained a “final” forfeiture order and Banks challenged it and the underlying judgment. The Fifth Circuit granted the Government’s motion to dismiss Banks’s appeal of the final forfeiture order for lack of standing and affirmed the judgment while noting the district court retains authority to correct any clerical omissions under Rule 36.

Summary of the Judgment

The district court entered a preliminary forfeiture order (May 2023) imposing forfeiture of $8,975 in currency, stating it would be part of the sentence under Rule 32.2(b)(4).
At sentencing, the court did not pronounce forfeiture orally or include it in the written judgment.
After Banks filed his notice of appeal, the Government secured a “final” forfeiture order, which Banks also appealed.
The Fifth Circuit held that:
1. Under Rule 32.2(b)(2)–(4), a preliminary forfeiture order “becomes final as to the defendant” at sentencing—even if unpronounced or omitted from the judgment—so Banks lacked standing to appeal the subsequent final order of forfeiture.
2. Banks’s challenge to the judgment for failure to comply with Rule 32.2 is reviewed for plain error. He failed to demonstrate any prejudice or a lesser forfeiture amount but for the omission, so the judgment was affirmed.
3. The district court retains authority under Rule 36 to correct any clerical omission in the judgment by including the forfeiture order.

Analysis

Precedents Cited

United States v. De Los Santos, 260 F.3d 446 (5th Cir. 2001): Established that a preliminary forfeiture order becomes final as to the defendant at sentencing and that only third-party interests are governed by the later final order.
United States v. Marquez, 685 F.3d 501 (5th Cir. 2012): Emphasized that Rule 32.2 procedures ensure notice and opportunity to challenge forfeiture; failure to object at sentencing subjects an error to plain-error review.
United States v. Omigie, 977 F.3d 397 (5th Cir. 2020): Held defendant had sufficient notice to object to forfeiture at sentencing despite no preliminary order, and omissions can be cured under Rule 36 as clerical errors.
United States v. Nagin, 810 F.3d 348 (5th Cir. 2016): Confirmed Rule 32.2(b)(4)(B)’s authorization for a Rule 36 correction at any time to include forfeiture in the judgment.
United States v. Robinson, 137 F. App’x 273 (11th Cir. 2005): Observed that pre-2009 Rule 32.2 required affirmative inclusion of forfeiture in the judgment, a rule later amended to permit Rule 36 correction.
United States v. Real Prop. at 404 W. Milton St., 650 F. App’x 233 (5th Cir. 2016): Characterized omission of forfeiture from the judgment as a clerical error correctable under Rule 36.
Bennett v. United States, 423 F.3d 271 (3d Cir. 2005): Third Circuit authority treating omission of forfeiture as clerical and curable under Rule 36.

Legal Reasoning

The Fifth Circuit’s reasoning rests on the text and structure of Rule 32.2 post-2009 amendments:

Rule 32.2(b)(2)–(3) mandates entry of a preliminary forfeiture order once the court finds the property subject to forfeiture.
Rule 32.2(b)(4)(A) provides that the preliminary order “becomes final as to the defendant” at the time of sentencing, without any additional action required.
Rule 32.2(b)(4)(B) requires the court to include forfeiture in the oral pronouncement or otherwise ensure notice, and to incorporate the forfeiture order in the written judgment—but expressly provides that failure to do so “may be corrected at any time under Rule 36.”
The court in Banks applied De Los Santos to conclude that once the preliminary order became final at sentencing, Banks’s property interest was extinguished, depriving him of standing to contest the later “final” order directed at third parties.
As to the judgment itself, Banks’s failure to object at sentencing triggers plain-error review (Marquez). He did not demonstrate that the omission caused him harm—i.e., a reasonable likelihood of a reduced forfeiture amount—so he cannot satisfy the “substantial rights” prong of plain-error review (Puckett v. United States, 556 U.S. 129 (2009)).
Finally, the panel emphasized that any clerical omission in the judgment may be cured under Rule 36 without reopening the substantive proceedings, preserving the fairness and finality of criminal judgments (Nagin).

Impact

This decision solidifies three key points in criminal forfeiture practice:

Defense counsel must object at sentencing if forfeiture is not pronounced or incorporated, or risk plain-error review.
Preliminary forfeiture orders, once entered, become final as to the defendant at sentencing, limiting collateral appeals by the defendant to the nil.
Omissions in the written judgment related to forfeiture are clerical under Rule 36 and may be corrected at any time, avoiding endless relitigation.

Future cases will rely on Banks to resolve standing issues and to streamline forfeiture corrections via Rule 36, reducing procedural appeals and encouraging prompt, clear forfeiture pronouncements at sentencing.

Complex Concepts Simplified

Preliminary Order of Forfeiture: A court order issued after conviction finding certain property subject to forfeiture; it “reserves” the forfeiture and becomes final as to the defendant at sentencing under Rule 32.2(b)(4)(A).
Final Order of Forfeiture: An order that resolves claims of third parties to the forfeited property. It does not affect the defendant’s rights once the preliminary order is final.
Standing: The legal right to appeal; a defendant loses standing to challenge a forfeiture order once it is final as to him and his property interest is extinguished.
Plain-Error Review: A deferential appellate standard applied when a party fails to object at trial. The appellant must show (1) error, (2) that is clear or obvious, and (3) affects substantial rights; and the court may correct only if it seriously affects fairness or integrity.
Rule 36 Clerical Error: Allows the court to correct minor mistakes or omissions in judgments “at any time,” without reopening substantive issues, ensuring the written record matches the court’s intent.

Conclusion

United States v. Banks clarifies that under the current text of Rule 32.2, a preliminary forfeiture order requires no further affirmative action to become final at sentencing, depriving the defendant of standing to contest a later “final” order. The decision also reaffirms that any failure to announce or incorporate forfeiture in the judgment is a clerical error correctable under Rule 36, streamlining forfeiture procedure and limiting appeals. Criminal practitioners must ensure timely objections or rely on simple Rule 36 motions to maintain the integrity, finality, and fairness of forfeiture orders in federal cases.