No Rule 11 Duty to Warn That Criminal Forfeiture Can Exceed the Statutory Maximum Fine; Broad Appeal Waivers Encompass Forfeiture Challenges

Introduction

In United States v. Shawn Johnson, Nos. 23-4770, 23-4772, 24-6087 (4th Cir. Nov. 14, 2025) (unpublished), the Fourth Circuit consolidated three appeals arising from a single defendant’s two federal convictions: bank fraud under 18 U.S.C. § 1344 and felon-in-possession of a firearm under 18 U.S.C. § 922(g)(1). Johnson pled guilty to bank fraud pursuant to a written plea agreement that contained a broad appeal waiver, and he separately pled guilty to the firearm offense without a plea agreement.

On appeal, Johnson pursued three principal issues:

Whether the district court’s Rule 11 colloquy for the bank fraud plea was defective because the court did not warn that criminal forfeiture could exceed the statute’s $1,000,000 maximum fine.
Whether the forfeiture money judgment, which exceeded $1 million, was unconstitutional under the Excessive Fines Clause and beyond the court’s statutory authority.
Whether § 922(g)(1) is unconstitutional as applied to Johnson in light of recent Second Amendment jurisprudence.

The Government moved to dismiss the bank-fraud-related appeals based on Johnson’s appeal waiver and to sever the firearm appeal. The Fourth Circuit denied severance as moot, enforced the appeal waiver in substantial part, and affirmed Johnson’s convictions, dismissing the remainder of his challenges.

Summary of the Opinion

Rule 11 advisement of penalties (bank fraud): No error—much less plain error—in the district court’s failure to warn that criminal forfeiture could exceed § 1344’s $1,000,000 maximum fine. Forfeiture is an additional sanction authorized under separate statutes, not a “fine” under § 1344 for Rule 11 purposes. The court properly advised of the maximum fine and that forfeiture could be imposed.
Appeal waiver (bank fraud): Valid and enforceable under the totality of the circumstances. Because criminal forfeiture is part of the sentence, Johnson’s constitutional challenge to the forfeiture’s excessiveness falls within the waiver’s broad scope and is dismissed.
“Statutory authority” exception to appeal waiver (forfeiture amount): Rejected. Although an exception allows review when a sentence exceeds statutory authority, Johnson’s argument that forfeiture cannot exceed the § 1344 fine cap is a claim of legal error, not a jurisdictional or statutory-authorization defect. Section 982(a)(2)(A) contains no amount limit, so the waiver bars the challenge.
As-applied challenge to § 922(g)(1): Foreclosed by controlling Fourth Circuit precedent (United States v. Hunt). The conviction is affirmed.
Procedural rulings: The court denied Johnson’s motion to file a pro se supplemental brief while represented by counsel. It dispensed with oral argument and denied the Government’s motion to sever as moot.

Disposition: Dismissed in part (waiver-enforced forfeiture challenges); affirmed in part (convictions); motion to sever denied as moot.

Analysis

Precedents Cited and How They Shaped the Decision

United States v. Bajakajian, 524 U.S. 321 (1998): Johnson relied on Bajakajian for the proposition that forfeiture is a “fine” and therefore must be treated as such in the Rule 11 colloquy and capped by § 1344’s maximum fine. The Fourth Circuit distinguished Bajakajian, emphasizing that it held forfeiture is a “fine” for purposes of the Eighth Amendment’s Excessive Fines Clause, not that forfeiture is a “fine” under the statute of conviction. The Supreme Court in Bajakajian also recognized forfeiture as an additional sanction authorized by separate statutes. This distinction allowed the panel to conclude that advising Johnson of the statutory maximum fine and the possibility of forfeiture satisfied Rule 11(b)(1)(H) and (J).
Fed. R. Crim. P. 11(b)(1)(H), (J): The rule requires advisement of any maximum possible penalty (including fines and supervised release) and any applicable forfeiture. The court held that separately advising of the fine cap and of forfeiture sufficed; Rule 11 does not demand that the judge explain forfeiture could exceed the statutory fine cap.
United States v. Fisher, 711 F.3d 460 (4th Cir. 2013); United States v. King, 91 F.4th 756 (4th Cir. 2024); United States v. Sanya, 774 F.3d 812 (4th Cir. 2014): These cases articulate the standards governing the validity of guilty pleas and plain error review. Because Johnson did not object or move to withdraw his plea, plain error applied. The court found no error, obviating the need to reach prejudice.
United States v. Taylor-Sanders, 88 F.4th 516 (4th Cir. 2023): Two principles from Taylor-Sanders were central: (1) a plea agreement’s appeal waiver does not bar review of the plea’s validity; and (2) the “statutory authority” exception to enforcing a waiver is narrow and does not include mere claims of legal error in how the district court interpreted a statute. The court used Taylor-Sanders to both reach the Rule 11 challenge and to reject Johnson’s attempt to recast a forfeiture-amount dispute as a statutory-authority defect.
United States v. Boutcher, 998 F.3d 603 (4th Cir. 2021): Boutcher holds that criminal forfeiture is part of the sentence, and it enforced an appeal waiver to bar a constitutional challenge to forfeiture. The panel applied Boutcher to conclude that Johnson’s Excessive Fines Clause challenge fell squarely within his waiver.
United States v. Manigan, 592 F.3d 621 (4th Cir. 2010); United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012): These cases supply the framework for determining whether an appeal waiver is knowing and intelligent. The panel relied on the Rule 11 colloquy and the totality of the circumstances to hold Johnson’s waiver valid.
United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025): Hunt forecloses as-applied constitutional challenges to § 922(g)(1) in the Fourth Circuit notwithstanding recent Supreme Court Second Amendment decisions. The panel applied Hunt to reject Johnson’s as-applied challenge.
United States v. Penniegraft, 641 F.3d 566 (4th Cir. 2011): Cited to deny Johnson’s request to file a pro se supplemental brief while represented by counsel.

Legal Reasoning

1) Rule 11 colloquy: No duty to equate forfeiture with the statutory fine cap

Johnson argued that because forfeiture can be punitive, the district court had to warn during the Rule 11 colloquy that any forfeiture might exceed § 1344’s $1,000,000 maximum fine. He grounded this argument in Bajakajian’s statement that forfeitures constitute “fines” for Eighth Amendment purposes.

The Fourth Circuit rejected the argument at the threshold. It read Bajakajian as addressing the constitutional characterization of forfeiture under the Excessive Fines Clause, not as collapsing the statutory categories of “fine” and “forfeiture” when a district court advises a defendant under Rule 11. The panel pointed to the Supreme Court’s own description of forfeiture as an additional sanction authorized under separate statutes—here, 18 U.S.C. § 982(a)(2)(A) for bank fraud—independent of the statute specifying the maximum fine (18 U.S.C. § 1344).

Accordingly, the district court complied with Rule 11 by advising Johnson of “any maximum possible penalty” (including the $1,000,000 fine and the term of supervised release) and “any applicable forfeiture.” No error—let alone plain error—occurred.

2) Appeal waiver: Valid, broad, and dispositive of forfeiture challenges

The court next examined Johnson’s appeal waiver, which broadly barred appeals of the conviction and sentence except for claims of ineffective assistance or prosecutorial misconduct. Under Manigan and Thornsbury, a waiver is enforceable when the district court probes it during the Rule 11 colloquy and the record shows the defendant understood its significance. The court found the waiver valid.

With validity established, scope controlled. Boutcher makes clear that criminal forfeiture is part of the sentence. Therefore, Johnson’s constitutional claim that the money judgment was excessive under the Eighth Amendment was within the waiver’s scope and had to be dismissed.

3) “Statutory authority” exception: Not a back door to litigate legal error

Johnson sought to salvage a non-waivable challenge by invoking the narrow exception permitting appellate review of sentences that exceed statutory authority. He argued that the forfeiture could not exceed the § 1344 fine cap, casting the money judgment as authorized beyond statute.

The panel rejected this recasting, relying on Taylor-Sanders. The exception does not cover claims that the district court misinterpreted what a statute allows; it is reserved for judgments imposed without statutory authorization. Here, Johnson conceded that § 982(a)(2)(A) authorizes forfeiture for § 1344 offenses and that the statute contains no dollar amount cap. His argument was thus a legal-interpretation complaint, not a statutory-authority defect. The appeal waiver therefore barred the claim.

4) Second Amendment challenge to § 922(g)(1): Bound by Hunt

Finally, the court summarily rejected Johnson’s as-applied challenge to § 922(g)(1), citing United States v. Hunt, which holds that recent Supreme Court Second Amendment decisions do not abrogate Fourth Circuit precedent foreclosing as-applied challenges to § 922(g)(1). The firearm conviction was affirmed.

Impact

Plea colloquies and forfeiture advisements: District courts in the Fourth Circuit are not required to warn that criminal forfeiture could exceed the statutory maximum fine during Rule 11 colloquies. Advising the statutory maximum fine and the fact of “applicable forfeiture” satisfies Rule 11(b)(1)(H) and (J).
Plea negotiations and appeal waivers: Broad appeal waivers will be enforced to bar constitutional challenges to forfeiture (e.g., Excessive Fines Clause claims) and legal-error arguments about the amount of forfeiture, absent explicit carve-outs. Defense counsel seeking to preserve forfeiture challenges must negotiate waiver exceptions expressly covering forfeiture and constitutional claims.
Framing the “statutory authority” exception: The decision reinforces that this exception to waiver enforceability is narrow. It does not permit recharacterizing disagreements over statutory interpretation as jurisdictional defects. If the statute authorizes the type of sanction (here, forfeiture under § 982(a)(2)(A)), a challenge to the amount typically remains waivable.
Excessive Fines litigation posture: Given that constitutional challenges to forfeiture are “part of the sentence” and hence waivable, defense counsel should consider developing Excessive Fines Clause arguments at sentencing and preserving them only if the waiver permits.
Second Amendment landscape in the Fourth Circuit: As-applied challenges to § 922(g)(1) remain foreclosed by circuit precedent (Hunt). Unless and until the Supreme Court or the Fourth Circuit en banc says otherwise, § 922(g)(1) prosecutions remain insulated from as-applied attacks in this circuit.
Unpublished but instructive: Although unpublished and nonbinding, the opinion is a useful data point on how panels will treat Rule 11 forfeiture advisements, waiver scope over forfeiture issues, and the tight construction of the “statutory authority” exception post–Taylor-Sanders.

Complex Concepts Simplified

Criminal forfeiture vs. fine: A fine is a monetary penalty specified by the statute of conviction (e.g., § 1344’s $1,000,000 cap). Criminal forfeiture is an additional sanction, authorized by separate statutes (here, § 982(a)(2)(A)), that requires a defendant to forfeit property or its equivalent value tied to the offense. For Eighth Amendment analysis, forfeiture can be a “fine,” but for Rule 11 and statutory-authorization purposes, forfeiture remains distinct from the statute’s “fine” cap.
Forfeiture money judgment: When specific assets are unavailable, courts may enter a personal money judgment reflecting the value of the property subject to forfeiture. The amount is driven by the governing forfeiture statute, not by the fine provisions of the offense statute, and in § 982(a)(2)(A) there is no fixed dollar cap.
Rule 11 colloquy: Before accepting a guilty plea, the court must ensure the defendant understands the nature of the charge, the rights waived, and the penalties—both maximums (imprisonment, fines, supervised release) and any applicable forfeiture. The goal is a voluntary, knowing, and intelligent plea.
Appeal waiver: A plea agreement may include a waiver of appellate rights. If the waiver is knowing and intelligent, courts generally enforce it according to its terms. Narrow exceptions exist (e.g., sentences imposed without statutory authorization), but constitutional and statutory arguments about the details of a sentence—like forfeiture amounts—are typically barred when the waiver is broad.
Plain error review: When a defendant did not object below, an appellate court reviews for plain error: an error that is clear or obvious and affects substantial rights. If no error occurred, the analysis ends. Johnson failed at step one on the Rule 11 claim.
As-applied constitutional challenge: A defendant contends that a statute is unconstitutional as applied to his particular circumstances. In the Fourth Circuit, such challenges to § 922(g)(1) are foreclosed by binding precedent (Hunt), regardless of recent Supreme Court Second Amendment decisions, unless higher authority changes the law.

Conclusion

The Fourth Circuit’s unpublished decision in United States v. Johnson delivers three practical takeaways. First, Rule 11 requires separate advisements of the statutory fine and any applicable forfeiture, but it does not require courts to warn that forfeiture could exceed the offense’s fine cap. Bajakajian does not transform forfeiture into a § 1344 “fine” for colloquy purposes. Second, broad appeal waivers will be enforced to bar both constitutional and legal-error challenges to criminal forfeiture, absent a specific carve-out; the narrow “statutory authority” exception does not encompass disagreements over how to read the statute. Third, as-applied challenges to § 922(g)(1) remain foreclosed in the Fourth Circuit under Hunt.

For practitioners, the opinion underscores the importance of negotiating waiver language that specifically preserves forfeiture challenges if desired, developing any Excessive Fines arguments at sentencing, and recognizing that Rule 11 colloquies need not forecast the potential magnitude of forfeiture beyond acknowledging that forfeiture applies. While unpublished, the decision aligns with and reinforces existing circuit law on plea validity, waiver enforceability, and the continuing viability of § 922(g)(1) prosecutions.