Forfeiture Is Not a “Fine” for Rule 11 Purposes: The Fourth Circuit Clarifies Plea Colloquy Advisements and Appeal-Waiver Limits in United States v. Johnson

Court: United States Court of Appeals for the Fourth Circuit (unpublished)

Date: November 14, 2025

Case: United States v. Shawn Thomas Johnson, Nos. 23-4770, 23-4772, 24-6087

Panel: Judges Wilkinson, Harris, and Richardson

Disposition: Dismissed in part (bank-fraud sentencing challenges barred by appeal waiver); affirmed in part (convictions affirmed); government’s motion to sever denied as moot

Introduction

In these consolidated appeals, the Fourth Circuit addressed three distinct challenges arising from Shawn Thomas Johnson’s guilty pleas: (1) whether a district court conducting a Rule 11 colloquy for a bank-fraud plea must warn that criminal forfeiture could exceed the statute’s maximum fine; (2) whether a broad appeal waiver bars constitutional and “statutory authority” challenges to a substantial forfeiture money judgment; and (3) whether 18 U.S.C. § 922(g)(1) is unconstitutional as applied to Johnson.

Johnson pled guilty to bank fraud, 18 U.S.C. § 1344, pursuant to a written plea agreement containing a sweeping appeal waiver, and separately pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), without a plea agreement. He argued on appeal that the district court misadvised him about potential penalties at his Rule 11 hearing by failing to explain that forfeiture could exceed the statutory fine cap; that the forfeiture money judgment was unconstitutional and beyond statutory authority; and that § 922(g)(1) is unconstitutional as applied to him. The government moved to sever the § 922(g)(1) appeal and to dismiss the bank-fraud appeals under the appeal waiver.

The Fourth Circuit rejected Johnson’s claims. Most notably, the Court clarified that for Rule 11 purposes, “forfeiture” is not a “fine”: a court complies with Rule 11 by advising a defendant of the statutory maximum fine and, separately, of applicable forfeiture—without warning that forfeiture might exceed the statutory fine cap. The Court also enforced Johnson’s broad appeal waiver to bar both constitutional and “statutory authority” attacks on the forfeiture judgment, and it reaffirmed that circuit precedent forecloses as-applied challenges to § 922(g)(1).

Summary of the Opinion

Rule 11 advisement: No error—plain or otherwise—occurred when the district court advised Johnson of the $1,000,000 maximum fine for § 1344 and, separately, that he was subject to forfeiture. The court was not required to warn that forfeiture could exceed the statutory fine. The panel distinguished United States v. Bajakajian as an Eighth Amendment decision, not a statutory-interpretation rule for Rule 11.
Appeal waiver: Johnson knowingly and intelligently agreed to a broad waiver that encompassed challenges to his bank-fraud conviction and sentence (including forfeiture), except for claims of ineffective assistance or prosecutorial misconduct. The waiver barred his constitutional excessive-fines challenge to the forfeiture and also barred his effort to recast a legal-interpretation argument as a “statutory authority” exception to the waiver. The court enforced the waiver under United States v. Boutcher and United States v. Taylor-Sanders.
§ 922(g)(1) as-applied challenge: Foreclosed by Fourth Circuit precedent in United States v. Hunt, which remains controlling post-Bruen and Rahimi.
Dispositions on motions: Government’s motion to dismiss granted in part (bank-fraud sentencing issues), denied in part (Rule 11 claim reviewed on the merits); motion to sever denied as moot.
Other procedural rulings: Defendant’s motion to file a pro se supplemental brief was denied because he was represented by counsel (United States v. Penniegraft).

Detailed Analysis

1) Precedents and Authorities Driving the Result

United States v. Bajakajian, 524 U.S. 321 (1998):
Held that forfeiture can be a “fine” for purposes of the Eighth Amendment’s Excessive Fines Clause. The panel emphasizes that Bajakajian does not transform forfeiture into a “fine” for statutory-maximum purposes or for Rule 11(b)(1)(H) advisements. Forfeiture is an “additional sanction” authorized by its own statutes, not a component of the criminal “fine” cap in § 1344.
Rule 11 framework:
- Fed. R. Crim. P. 11(b)(1)(H) requires advising of “any maximum possible penalty, including imprisonment, fine, and term of supervised release.”
- Fed. R. Crim. P. 11(b)(1)(J) separately requires advising of “any applicable forfeiture.”
- United States v. Fisher, 711 F.3d 460 (4th Cir. 2013): A plea is valid if entered knowingly, voluntarily, and intelligently with awareness of relevant circumstances and likely consequences.
- United States v. King, 91 F.4th 756 (4th Cir. 2024) and United States v. Sanya, 774 F.3d 812 (4th Cir. 2014): Unpreserved Rule 11 claims are reviewed for plain error affecting substantial rights.
Appeal-waiver enforcement:
- United States v. Taylor-Sanders, 88 F.4th 516 (4th Cir. 2023): Appeal waivers do not bar review of claims attacking the validity of the plea itself; however, the “exceeded statutory authority” exception is narrow and does not permit recharacterizing ordinary legal-interpretation arguments as jurisdictional or authority defects.
- United States v. Boutcher, 998 F.3d 603 (4th Cir. 2021): Forfeiture in criminal cases is part of the sentence; broad appeal waivers encompass constitutional challenges to forfeiture unless expressly carved out.
- United States v. Manigan, 592 F.3d 621 (4th Cir. 2010) and United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012): Standards confirming validity of appeal waivers when fully explained at the Rule 11 colloquy.
Felon-in-possession constitutional challenges:
United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025): Recent Supreme Court decisions do not abrogate Fourth Circuit precedent foreclosing as-applied challenges to § 922(g)(1). Thus, such challenges remain barred in the Fourth Circuit absent intervening en banc or Supreme Court authority.
Pro se filings while represented:
United States v. Penniegraft, 641 F.3d 566 (4th Cir. 2011): A represented criminal appellant has no right to file a pro se supplemental brief.

2) The Court’s Legal Reasoning

a) Rule 11 colloquy: fines versus forfeiture

Johnson argued the district court inadequately warned him by stating the maximum “fine” for § 1344 is $1,000,000 without also warning that “forfeiture”—which he said is a “fine” under Bajakajian—could exceed that cap. The panel rejected the argument for two reasons:

Constitutional label ≠ statutory label: Bajakajian holds that forfeiture can be a “fine” for Eighth Amendment purposes; it does not convert forfeiture into a statutory “fine” for Rule 11(b)(1)(H) or for the specific penalty structure of § 1344. The Court highlighted that the Supreme Court itself described forfeiture as an “additional sanction” with its own statutory basis.
Rule 11 treats forfeiture separately: Rule 11(b)(1) delineates advisements for “fine” (H) and “forfeiture” (J) as distinct. The district court complied by advising Johnson of the $1,000,000 statutory fine maximum and that forfeiture applicable to bank fraud could be imposed. There was therefore no error in the colloquy—certainly not plain error.

b) Appeal waiver: scope and exceptions

Johnson’s written plea agreement contained a broad appeal waiver covering his bank-fraud conviction and sentence except for claims of ineffective assistance or prosecutorial misconduct. The Court found the waiver valid and enforceable: the district court questioned Johnson about it at the plea hearing and the record reflected his understanding of its significance.

Two challenges were foreclosed by the waiver:

Excessive fines claim (constitutional): Under Boutcher, criminal forfeiture is part of the sentence, and broad waivers cover constitutional attacks unless carved out. Johnson’s Eighth Amendment challenge to the money judgment was dismissed as waived.
“Statutory authority” framing rejected under Taylor-Sanders: The Fourth Circuit recognizes a limited exception to appeal waivers for sentences that exceed the court’s statutory authority. But Johnson’s bid to invoke that exception failed because the district court indisputably had forfeiture authority under 18 U.S.C. § 982(a)(2)(A) for § 1344 offenses, and that statute does not impose a dollar cap tied to § 1344’s fine maximum. Johnson’s contention that the court misread “fine” and thus ordered too much forfeiture was a claim of legal error, not a claim that the court lacked authority to impose forfeiture at all. Taylor-Sanders instructs that such legal-interpretation disputes remain within the waiver’s bar.

c) § 922(g)(1) as-applied challenge foreclosed

Relying on Hunt, the panel rejected Johnson’s as-applied Second Amendment attack. Hunt holds that recent Supreme Court decisions do not abrogate prior Fourth Circuit precedent foreclosing as-applied challenges to § 922(g)(1). Unless and until the Fourth Circuit sitting en banc or the Supreme Court directs otherwise, such challenges remain barred in this Circuit.

3) Practical Impact and Doctrinal Significance

a) Rule 11 practice in the Fourth Circuit

No need to quantify forfeiture or compare it to the fine cap: District judges satisfy Rule 11 by advising of the statutory maximum fine under Rule 11(b)(1)(H) and separately advising of “any applicable forfeiture” under Rule 11(b)(1)(J). They are not required to warn that forfeiture could exceed the statutory fine cap for the offense of conviction.
Defense strategy: Defendants who want greater clarity about financial exposure should negotiate plea language addressing forfeiture magnitude or insist on the government’s proffer of estimated proceeds. Otherwise, a generic forfeiture advisement will suffice and will be difficult to challenge on plain-error review.

b) Appeal waivers and forfeiture litigation

Constitutional challenges to forfeiture are waivable: Under Boutcher, criminal forfeiture is part of the sentence. Broad waivers typically foreclose excessive-fines challenges to forfeiture judgments. Defendants who wish to preserve such claims must secure explicit carveouts.
“Statutory authority” exception is narrow: Taylor-Sanders limits the exception to true authority defects (for example, imposing a type of sanction the statute does not authorize). It does not reach disagreements over the court’s interpretation of otherwise applicable statutes. Where § 982(a)(2)(A) applies, attempts to cap forfeiture at the § 1344 fine maximum should be treated as legal-error arguments barred by the waiver.
Forfeiture under § 982(a)(2)(A) is not capped by the § 1344 fine maximum: This opinion reinforces that forfeiture is keyed to “proceeds” and is independent of the statutory fine ceiling.

c) Second Amendment litigation posture for § 922(g)(1)

As-applied challenges remain foreclosed in the Fourth Circuit: Following Hunt, defendants cannot obtain relief on as-applied grounds against § 922(g)(1) in this circuit absent en banc or Supreme Court intervention.
Bruen/Rahimi context: Although the Supreme Court’s historical-tradition analysis shapes the broader landscape, Hunt concludes those decisions do not abrogate the Fourth Circuit’s prior precedent upholding § 922(g)(1) against as-applied attacks.

4) Complex Concepts Simplified

Rule 11 colloquy: Before accepting a guilty plea, the judge must ensure the defendant understands the charge, the rights being waived, and the maximum penalties—including fines, supervised release, and forfeiture. “Fines” and “forfeiture” are addressed in different subparts of Rule 11 because they are distinct forms of punishment.
Criminal forfeiture: A court-ordered divestiture of property or a money judgment representing criminal “proceeds.” In bank-fraud cases, 18 U.S.C. § 982(a)(2)(A) mandates forfeiture of proceeds and does not cap that amount at the offense’s fine maximum.
Excessive Fines Clause: The Eighth Amendment prohibits “excessive” monetary penalties. Bajakajian held some forfeitures can be “fines” for this Clause. That constitutional label does not make forfeiture a “fine” for statutory purposes like Rule 11(b)(1)(H) or § 1344’s fine cap.
Appeal waivers: Defendants may waive most appellate rights in plea agreements if the waiver is knowing and intelligent. Waivers normally bar review of sentencing issues—including forfeiture—unless a claim falls within a narrow exception (e.g., the sentence truly exceeded statutory authority) or the waiver itself is invalid.
Plain-error review: If a defendant did not object below, the appellate court will correct an error only if it is clear or obvious, affected substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
As-applied vs. facial constitutional challenges: An as-applied challenge argues a law is unconstitutional in the challenger’s specific circumstances; a facial challenge argues it is unconstitutional in all or most circumstances. In the Fourth Circuit, as-applied challenges to § 922(g)(1) remain foreclosed by binding precedent.

Conclusion

The Fourth Circuit’s unpublished decision in United States v. Johnson makes three important points for federal criminal practice in this circuit:

Plea colloquies and forfeiture: A district court satisfies Rule 11 by advising a defendant of (1) the statutory maximum fine and (2) the existence of applicable forfeiture. It need not warn that forfeiture could exceed the statutory fine cap. Bajakajian does not compel a different result because its “fine” label is limited to the Eighth Amendment context.
Appeal waivers and forfeiture challenges: Broad appeal waivers bar constitutional excessive-fines challenges to forfeiture and also bar attempts to recast legal-interpretation disputes as “statutory authority” claims where the court plainly had forfeiture authority under § 982(a)(2)(A). Practitioners should negotiate explicit carveouts if they intend to preserve forfeiture challenges.
§ 922(g)(1) remains intact against as-applied challenges: Under Hunt, defendants in the Fourth Circuit cannot prevail on as-applied challenges to the felon-in-possession statute absent higher-court intervention.

Although unpublished and nonprecedential, the opinion provides clear guidance: forfeiture is a distinct sentencing component for Rule 11 purposes; appeal waivers will be enforced to foreclose most forfeiture challenges; and post-Bruen as-applied attacks on § 922(g)(1) remain a dead end in this circuit. Defense counsel should structure plea negotiations—and objections at plea colloquies—accordingly if they wish to preserve issues for appellate review.