Forfeiture Is Not a “Fine” for Rule 11 Purposes: Fourth Circuit Upholds Plea Advisements, Enforces Appeal Waiver Over Forfeiture, and Reaffirms Bar on As‑Applied § 922(g)(1) Challenges

Introduction

In a consolidated, unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit resolved three appeals arising from two criminal cases against Shawn Thomas Johnson in the Western District of North Carolina (Asheville). Johnson pled guilty to bank fraud, 18 U.S.C. § 1344, under a written plea agreement containing an appeal waiver (Nos. 23‑4770 and 24‑6087), and separately pled guilty—without a plea agreement—to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (No. 23‑4772).

On appeal, Johnson raised three principal issues:

A Rule 11 challenge to his bank‑fraud plea, arguing the district court misadvised him about potential penalties by failing to warn that criminal forfeiture could exceed the statute’s $1,000,000 maximum fine, in light of United States v. Bajakajian.
Constitutional and statutory challenges to a seven‑figure forfeiture money judgment imposed for bank fraud.
An as‑applied Second Amendment challenge to § 922(g)(1).

The Government moved to dismiss the bank‑fraud appeals based on the plea’s appeal waiver, and to sever the § 922(g)(1) appeal. The Fourth Circuit dismissed the forfeiture challenges in part as waived, rejected the Rule 11 claim on the merits, affirmed both convictions, and denied severance as moot.

Summary of the Opinion

The Fourth Circuit held:

Rule 11 advisements were adequate. The district court did not err—let alone plainly err—by advising Johnson of the maximum statutory fine for bank fraud and, separately, that forfeiture could be imposed. Bajakajian’s use of “fine” under the Eighth Amendment does not convert criminal forfeiture into the statute‑of‑conviction “fine” for Rule 11 purposes.
Appeal waiver enforced as to forfeiture challenges. The plea agreement’s broad appeal waiver was valid and encompassed Johnson’s constitutional challenge to the forfeiture and his argument about the amount of the forfeiture. The “statutory authority” exception to waiver did not apply because the district court possessed statutory authority to impose forfeiture under 18 U.S.C. § 982(a)(2)(A), which contains no cap.
§ 922(g)(1) as‑applied challenge foreclosed. Under United States v. Hunt, Fourth Circuit precedent continues to foreclose as‑applied challenges to § 922(g)(1). The court affirmed Johnson’s felon‑in‑possession conviction.
Procedural rulings. Johnson’s motion to file a pro se supplemental brief was denied because he was represented by counsel; the Government’s motion to sever was denied as moot; oral argument was dispensed with.

Disposition: Dismissed in part; affirmed in part.

Analysis

Precedents Cited and Their Influence

United States v. Bajakajian, 524 U.S. 321 (1998). The Supreme Court held that a forfeiture can be a “fine” for purposes of the Eighth Amendment’s Excessive Fines Clause. The Fourth Circuit emphasized that Bajakajian addressed the constitutional meaning of “fine,” not the meaning of “fine” in a statute of conviction for Rule 11 advisements. The opinion also noted Bajakajian’s recognition of forfeiture as an “additional sanction” authorized by separate statutes, reinforcing the conceptual and statutory distinction between fines and forfeiture.
Fed. R. Crim. P. 11(b)(1)(H) and (J). Rule 11 requires the court to inform a defendant of “any maximum possible penalty, including imprisonment, fine, and term of supervised release” and “any applicable forfeiture.” The panel treated these as distinct advisements, thereby rejecting the claim that forfeiture must be folded into the “fine” advisement or capped by the statutory maximum fine.
United States v. Fisher, 711 F.3d 460 (4th Cir. 2013). A guilty plea is valid if knowing, voluntary, and intelligent; the court used this framework in assessing the Rule 11 claim.
United States v. King, 91 F.4th 756 (4th Cir. 2024), and United States v. Sanya, 774 F.3d 812 (4th Cir. 2014). Because Johnson did not object or move to withdraw his plea, the court applied plain‑error review and required a showing that any Rule 11 error affected substantial rights—standards the court found unmet.
United States v. Boutcher, 998 F.3d 603 (4th Cir. 2021). Forfeiture is part of the criminal sentence; broad appeal waivers may bar appellate challenges to forfeiture, including constitutional claims. Boutcher guided the court in enforcing Johnson’s waiver against his forfeiture arguments.
United States v. Manigan, 592 F.3d 621 (4th Cir. 2010), and United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012). These cases inform the validity analysis of appeal waivers, emphasizing the Rule 11 colloquy’s role in ensuring a knowing and intelligent waiver.
United States v. Taylor‑Sanders, 88 F.4th 516 (4th Cir. 2023). An appeal waiver does not bar review of plea validity, but a narrow exception permits review of sentences that exceed statutory authority. The panel held Johnson’s forfeiture‑amount challenge did not fit that exception because the district court had authority under § 982(a)(2)(A); Johnson’s claim was one of legal error rather than lack of statutory power.
United States v. Penniegraft, 641 F.3d 566 (4th Cir. 2011). A represented defendant has no right to file a pro se supplemental brief. The court denied Johnson’s pro se motion accordingly.
United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025). Hunt held that recent Supreme Court decisions do not abrogate Fourth Circuit precedent foreclosing as‑applied challenges to § 922(g)(1). The panel applied Hunt to reject Johnson’s Second Amendment claim.

Legal Reasoning

Rule 11 advisement about fines and forfeiture.
- Rule 11 requires that the court advise a defendant about the maximum possible fine and any applicable forfeiture, which are distinct categories.
- Johnson argued that, because Bajakajian treated forfeiture as a “fine” for Eighth Amendment purposes, the court was obliged to warn that his forfeiture exposure could exceed the § 1344 maximum fine of $1,000,000.
- The Fourth Circuit rejected that view: Bajakajian addressed the constitutional “fine,” not the statutory “fine” to be disclosed under Rule 11(b)(1)(H). Forfeiture remains an additional, separately authorized sanction; advising both the maximum fine and the possibility of forfeiture satisfied Rule 11(b)(1)(H) and (J).
- Because Johnson did not object below, plain‑error review applied, and the panel found no error at all—much less plain error—so the plea’s validity stood.
Enforceability and scope of the appeal waiver.
- The court examined the plea colloquy and the agreement to confirm that Johnson knowingly and intelligently waived his right to appeal, consistent with Manigan and Thornsbury.
- Relying on Boutcher, the court treated forfeiture as part of the sentence and held that Johnson’s broad waiver—excepting only ineffective assistance and prosecutorial misconduct—barred his constitutional challenge to the forfeiture money judgment.
- Johnson also argued that the district court exceeded its statutory authority by imposing a forfeiture exceeding the § 1344 maximum fine. The panel held this challenge was still barred by the waiver because it did not implicate the narrow “statutory authority” exception recognized in Taylor‑Sanders.
- Specifically, 18 U.S.C. § 982(a)(2)(A) authorizes forfeiture for bank‑fraud violations and imposes no amount cap; thus, the district court’s power to order forfeiture was indisputable. Johnson’s argument—that the court misread “fine” in § 1344 and therefore permitted a larger forfeiture—asserted legal error, not lack of statutory authority. Under Taylor‑Sanders, such claims remain within the waiver and are not reviewable.
Felon‑in‑possession and as‑applied Second Amendment challenge.
- The court deemed itself bound by Hunt, which held that recent Supreme Court decisions do not undermine Fourth Circuit precedent foreclosing as‑applied challenges to § 922(g)(1).
- Accordingly, Johnson’s as‑applied challenge failed, and his § 922(g)(1) conviction was affirmed.
Miscellaneous procedural rulings.
- Johnson’s motion to file a pro se supplemental brief was denied under Penniegraft because he was represented by counsel on appeal.
- The Government’s motion to sever the appeals was denied as moot given the court’s disposition.

Impact and Practical Implications

Although unpublished and not binding precedent in the Fourth Circuit, this opinion distills and applies several important principles that will influence plea practice, forfeiture litigation, and Second Amendment challenges:

Rule 11 practice: separate advisements suffice. District judges satisfy Rule 11 by advising the statutory maximum fine and, separately, that forfeiture is applicable. They need not warn that forfeiture might exceed the maximum fine. Defense counsel should calibrate their client advisements accordingly.
Forfeiture vs. fine: the categories remain distinct. Bajakajian’s Eighth Amendment treatment of forfeiture as a “fine” for Excessive Fines Clause analysis does not merge forfeiture into the statute‑of‑conviction “fine” for plea‑colloquy purposes or for statutory‑cap arguments.
Appeal waivers routinely cover forfeiture challenges. Because forfeiture is part of the sentence, broad waivers can foreclose appellate challenges to the constitutionality and amount of forfeiture. Defense counsel seeking to preserve such challenges must negotiate explicit carve‑outs.
“Statutory authority” exception is narrow. Under Taylor‑Sanders, the exception covers sentences truly beyond the court’s statutory power (e.g., exceeding a statutory maximum or imposing an unauthorized type of punishment). It does not encompass claims of legal error where the sentencing court had statutory authority to impose the sanction, such as forfeiture under § 982(a)(2)(A).
Bank fraud forfeiture exposure remains uncapped by the fine statute. Section 982(a)(2)(A) authorizes forfeiture of proceeds obtained from § 1344 offenses without a dollar cap, meaning forfeiture money judgments may exceed the statute’s maximum fine.
As‑applied § 922(g)(1) challenges are foreclosed in the Fourth Circuit. After Hunt (with certiorari denied), as‑applied Second Amendment challenges to the felon‑in‑possession statute remain barred. Defendants should not expect individualized Bruen‑style relief in the Fourth Circuit via as‑applied attacks on § 922(g)(1).
No hybrid representation on appeal. Appellants represented by counsel cannot file pro se supplemental briefs in this circuit absent special circumstances, streamlining appellate presentation.

Complex Concepts Simplified

Criminal forfeiture vs. fine: A fine is a monetary penalty capped by the statute of conviction. Criminal forfeiture is an in personam sanction that requires a defendant to forfeit property constituting or derived from criminal proceeds under separately authorized statutes (here, § 982(a)(2)(A)). Forfeiture can exceed the statutory fine and is often equal to the proceeds of the offense.
Rule 11 advisements: Before accepting a plea, the court must tell the defendant the maximum penalties (including the maximum fine) and advise that forfeiture applies if it does. The rules treat “fine” and “forfeiture” as distinct topics; the court need not present them as a single combined cap.
Plain‑error review: When a defendant does not object to an error at the time, the appellate court asks whether there was (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. This is a demanding standard that often defeats unpreserved challenges to plea colloquies.
Appeal waiver: A defendant may waive appellate rights in a plea agreement if the waiver is knowing and intelligent. Such waivers frequently bar sentencing challenges, including to forfeiture. Narrow exceptions exist, such as when a sentence exceeds the court’s statutory authority, but mere claims that the court misinterpreted the law typically remain within the waiver.
“Statutory authority” exception to waiver: This allows review when a court imposes a type or amount of punishment that the law does not authorize at all (e.g., imposing more years than the statute allows). It does not apply where the court had authority to impose a category of punishment (like forfeiture), even if the defendant disputes the court’s interpretation or methodology.
As‑applied constitutional challenge: A claim that a statute is unconstitutional in the specific circumstances of the defendant (as opposed to facially unconstitutional in all applications). Under Fourth Circuit precedent reaffirmed in Hunt, as‑applied challenges to § 922(g)(1) fail.
Unpublished, per curiam opinion: A short decision issued in the name of the court rather than a specific judge, and designated as unpublished, which means it is not binding precedent in the Fourth Circuit but may be cited for its persuasive value.

Conclusion

United States v. Johnson reinforces a clear doctrinal boundary: criminal forfeiture is a distinct sanction from a statutory fine for purposes of Rule 11 advisements. A district court complies with Rule 11 when it separately advises the maximum fine and “any applicable forfeiture,” without warning that forfeiture may exceed the statutory fine cap. The decision also underscores the real bite of appeal waivers in forfeiture litigation—broad waivers will bar both constitutional and quantum challenges unless expressly carved out—and clarifies the narrowness of the “statutory authority” exception under Taylor‑Sanders. Finally, the panel’s adherence to Hunt confirms that, in the Fourth Circuit, as‑applied Second Amendment attacks on § 922(g)(1) remain foreclosed.

Key takeaways:

For Rule 11, fines and forfeiture are distinct advisements; Bajakajian does not fuse them.
Forfeiture is part of the sentence and generally falls within the scope of broad appeal waivers.
The “statutory authority” exception does not rescue claims alleging interpretive error where the court had power to impose the challenged sanction.
As‑applied challenges to § 922(g)(1) continue to fail in the Fourth Circuit post‑Hunt.

While unpublished, the opinion offers practical guidance to district judges on plea colloquies, to counsel on structuring appeal waivers and advising clients about forfeiture exposure, and to litigants considering Second Amendment challenges to § 922(g)(1).