Date: Jul 4, 2026

Rule 32.2(b)(4)(B) Is a Time-Related Directive: Late-Imposed Forfeiture Is Reviewed for Harmless Error (and Usually Won’t Be Vacated Absent Prejudice)

Case: United States v. Jeremy Wayne Harrell (No. 25-5556)
Court: United States Court of Appeals for the Sixth Circuit
Date: July 2, 2026
Opinion by: Judge Ritz (Sutton, C.J., and Davis, J., joining)

I. Introduction

This appeal arises from a theft-of-government-funds conviction under 18 U.S.C. § 641. Jeremy Wayne Harrell, a veteran receiving VA unemployability benefits, continued to receive benefits after founding and working full-time for a nonprofit without notifying the VA—conduct the jury found criminal. The sentencing dispute, however, centered not on guilt, but on the district court’s handling of criminal forfeiture.

The government sought a forfeiture money judgment of $108,454.88. Although forfeiture was raised before and at sentencing, the district court did not orally impose forfeiture at the sentencing hearing and did not include forfeiture in the initial written judgment. Months later, the court entered an order of forfeiture and ultimately a second amended judgment imposing forfeiture, invoking Fed. R. Crim. P. 36 (“Clerical Error”) as authority to correct the omission. Harrell appealed, arguing the forfeiture was imposed too late and in violation of procedural rules and presence rights.

The Sixth Circuit agreed that errors occurred, but held they did not justify vacatur. Most significantly, the court held that Fed. R. Crim. P. 32.2(b)(4)(B) is a time-related directive, so violations are reviewed for harmless error, not treated as presumptively prejudicial claim-processing defects.

II. Summary of the Opinion

The Sixth Circuit affirmed Harrell’s forfeiture sentence despite acknowledging multiple procedural missteps:

No invited error: the district court—not Harrell—was the “overwhelming cause” of the forfeiture procedural anomalies.
Rule 32.2(b)(4)(B) violated: the court failed to impose forfeiture at sentencing and failed to include it in the initial judgments.
But no vacatur: Rule 32.2(b)(4)(B) is a time-related directive subject to harmless-error review; the errors were harmless because Harrell had notice and an opportunity to contest forfeiture (and raised no meaningful substantive challenge).
Presence rights: no due process violation on this record; a Rule 43(a) violation occurred, but it did not affect substantial rights under plain-error review.
No oral/written conflict: the oral sentence deferred forfeiture, and the later judgment executed that deferral; at most, the later judgment clarified the sentencing court’s intent.

III. Analysis

A. Precedents Cited

1. Invited error and attribution of fault

The government argued Harrell invited the error. The panel rejected that framing by applying the Sixth Circuit’s invited-error doctrine:

United States v. Thompson (quoting Ford v. County of Grand Traverse (en banc)): invited error bars a party who induced reliance on an erroneous proposition from later complaining.
United States v. Montgomery: invited error requires more than “passively stand[ing] by” as the court errs.
Wayne Cnty. Hosp., Inc. v. Jakobson: invited error does not apply where the district court proposes the error and the party merely agrees.
United States v. Barrow: the doctrine requires inducement; errors that are the court’s “own accord” are not “invited.”

These authorities mattered because they allowed the court to reach the merits: the panel characterized the error sequence as court-driven (deferral “given the late hour,” and subsequent judgment omissions), not as a tactical defense choice that should preclude appellate review.

2. Limits on modifying final sentences; forfeiture as part of “sentence”

United States v. Davidson: de novo review applies to application of the Federal Rules of Criminal Procedure.
United States v. Ross: courts lack inherent power to modify final sentences.
Libretti v. United States: forfeiture is part of the defendant’s sentence.
United States v. Hammond (per curiam) and United States v. Shaw: a sentence may be changed only where authority is expressly granted by statute or rule; the “one and only one sentence” principle underscores finality.

These cases provided the baseline constraint: because forfeiture is part of the sentence, adding it later is not a mere administrative tweak. It requires rule-based authority—and careful attention to what “clerical correction” can and cannot do.

3. Interpreting Rule 32.2(b)(4)(B) and “clerical errors”

United States v. Soto: the court invoked ordinary interpretive methods and plain meaning in construing Rule 32.2(b)(4)(B).
United States v. Carman: the panel used Carman as a key comparator—Rule 32.2 is violated when forfeiture is not mentioned at sentencing and is imposed months later.
United States v. Maddux: previously described Rule 32.2 as an “A-to-Z roadmap” with time-specific steps and treated violations as claim-processing defects.
McIntosh v. United States: Supreme Court abrogation point—held Rule 32.2(b)(2)(B) is a time-related directive, not a claim-processing rule; also emphasized that Rule 32.2 provisions can vary subsection-by-subsection.
United States v. Karasarides: defined the narrow domain of Rule 36 (“clerical errors” like typos, or matching written punishment to what was orally announced), rejecting substantive additions under the guise of clerical correction.
United States v. Ferrario-Pozzi: cited for the distinction between clerical correction and substantive sentencing change, and as support for the notion that purposeful postponement differs from total silence.

The opinion used these authorities to draw two lines: (i) Rule 32.2(b)(4)(B) requires the actual imposition of forfeiture at sentencing (not just notice that forfeiture is possible), and (ii) Rule 36 cannot be used to add substantive forfeiture terms that were never imposed at sentencing.

4. Categorizing time limits: jurisdictional vs claim-processing vs time-related directives

Dolan v. United States: provided the analytic framework where a rule sets timing but does not specify consequences; also supplied interpretive factors (text, context, purpose).
Henderson ex rel. Henderson v. Shinseki: described the function of claim-processing rules in orderly litigation.
Eberhart v. United States: referenced via McIntosh to distinguish rigid claim-processing rules from more flexible directives.
United States v. White and United States v. Carnes: supported the Sixth Circuit’s ability to treat Maddux as abrogated where Supreme Court reasoning undercuts it.
United States v. Cammarata, United States v. Martin, United States v. Lee, United States v. Ponzo, United States v. Mincey, United States v. Farias: surveyed out-of-circuit treatment of Rule 32.2 subsections and harmless-error approaches, while noting Lee’s pre-McIntosh suggestion of claim-processing character.

These cases were central to the opinion’s “new law” component: the panel extended McIntosh’s reasoning from Rule 32.2(b)(2)(B) to Rule 32.2(b)(4)(B), reclassifying it as a time-related directive and thereby changing the remedial lens from presumed prejudice to harmless error.

5. Harmless error at sentencing

United States v. Sherrill and United States v. Ziesel: articulated harmless-error principles at sentencing—errors are harmless if they did not affect sentence selection or severity and the same sentence would be imposed on remand.
United States v. Hendrickson: referenced for applying even a stringent harmless-error standard.
Wagner v. United States: affirmed that restitution and forfeiture are distinct remedies and may both be ordered—undercutting Harrell’s “duplicative” argument.
United States v. Williams: invoked by Harrell for the proposition that absence at sentencing creates uncertainty; the panel distinguished it because Harrell had multiple opportunities to contest forfeiture.

Additionally, the opinion adopted a pragmatic harmlessness inquiry drawn from United States v. Mincey and United States v. Farias: whether the defendant had fair notice (including the amount) and a full opportunity to contest. Applying that framework, the court found harmlessness because Harrell had repeated notice and opportunities—and offered no substantial challenge.

6. Presence rights: Due Process and Rule 43(a)

United States v. Blake: confirmed a Fifth Amendment Due Process right to be present at sentencing.
United States v. Diggles: used for the idea that imposing sentencing terms only in a written judgment can resemble in absentia sentencing.
United States v. Getachew: cited alongside Diggles in the presence-right discussion.
Kentucky v. Stincer and United States v. Gagnon: defined the constitutional floor—presence is required only insofar as it contributes to fairness; the record is evaluated as a whole.
Mathews v. Eldridge: due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.”
United States v. Hills, United States v. Brown, United States v. Gibbs: explained Rule 43(a) as a broader, codified presence right than the Constitution alone.
United States v. Dominguez Benitez and United States v. Oliver (quoted via United States v. Owens): tied “substantial rights” to prejudice affecting outcome/severity.
United States v. Burton: illustrated how the availability of other opportunities to object can defeat substantial-rights prejudice.
United States v. Gates: noted harmlessness when the district court indicates it would impose the same sentence notwithstanding a procedural error.

These cases allowed the panel to separate: (i) the constitutional question (fairness in context) and (ii) the rule-based violation (Rule 43(a)’s broader command), then resolve the latter under plain-error prejudice standards.

7. Oral vs written sentence; deferral; restitution analogies

United States v. Schultz, United States v. Schock, United States v. Bowens (cited via United States v. Alexander), United States v. Booker, United States v. Gaynor: supplied the doctrine that oral pronouncement controls unless ambiguity permits clarification; and that no conflict exists where oral and written convey the same message.
United States v. Malcom and United States v. Dando: supported the proposition that a court may reserve certain matters for later resolution without creating a fatal oral/written conflict.
United States v. Campbell, Manrique v. United States, and Dolan v. United States: reinforced that restitution amounts can be deferred and later incorporated via amended judgment—used by analogy to reject a “conflict” theory where the oral sentence deferred decision-making.

B. Legal Reasoning

1. What Rule 32.2(b)(4)(B) requires—and what happened here

The panel read Rule 32.2(b)(4)(B) to impose two independent duties:

The court must include forfeiture when orally announcing the sentence, or otherwise ensure the defendant knows “of the forfeiture” at sentencing. The panel construed “the forfeiture” to mean the actual decision to impose divestiture, not mere notice that forfeiture might later occur. It reinforced this reading by pointing to Rule 32.2(a) (“Notice to the Defendant”) as already covering general notice via indictment, and by relying on ordinary meaning (Black’s Law Dictionary’s definition of “Forfeiture” as divestiture without compensation).
The court must include the forfeiture order in the judgment (directly or by reference), though failure to do so may be corrected “at any time under Rule 36.” But Rule 36 is limited to clerical corrections—so “correction” presupposes forfeiture was already imposed (or at least fixed) in a way the judgment failed to memorialize.

Applying those principles, the panel held the district court violated Rule 32.2(b)(4)(B) twice: it did not impose forfeiture at sentencing, and it did not include forfeiture in the initial or first amended judgments. It further held Rule 36 could not justify a post-sentencing substantive addition of forfeiture where forfeiture had not been imposed at sentencing.

The court also addressed (and rejected as irrelevant to procedure) the government’s contention that forfeiture was “mandatory” for a § 641 conviction via 18 U.S.C. §§ 981(a)(1)(C) and 1956(c)(7)(D): mandatory or discretionary, the same Rule 32.2(b)(4)(B) timing and inclusion requirements apply.

2. The key doctrinal move: Rule 32.2(b)(4)(B) is a time-related directive

The opinion’s most consequential move was categorizing Rule 32.2(b)(4)(B) under the Supreme Court’s time-limit taxonomy (jurisdictional deadlines, claim-processing rules, time-related directives). The panel held that, after McIntosh v. United States, the earlier Sixth Circuit approach in United States v. Maddux could not govern Rule 32.2(b)(4)(B) and that McIntosh’s reasoning was “directly applicable” under United States v. White.

Using the Dolan factors (text, context, purpose), the court reasoned:

Text and flexibility: Rule 32.2(b)(4)(B) contains built-in flexibility (oral inclusion or otherwise ensuring knowledge; and judgment omission correctable under Rule 36).
Actor regulated: the rule is directed to the court, not the litigants—typical of time-related directives designed to spur judicial action.
Purpose: due process and judicial economy are not “significantly” frustrated by harmless-error review; the court emphasized that time-related directives still constrain courts because errors remain reviewable for prejudice.
Consensus trend: other circuits’ harmless-error treatment of Rule 32.2 subsections supported this classification (with United States v. Lee noted as a pre-McIntosh outlier suggestion).

3. Application: why the errors were harmless

Having selected harmless-error review, the panel found no basis to vacate because:

Notice was extensive: forfeiture was flagged in the indictment; requested by motion pre-sentencing; repeated in the sentencing memorandum; and raised at the sentencing hearing, including the precise $108,454.88 amount.
Opportunity to contest existed (and expanded): despite missing the local-rule response window, Harrell was permitted to object at sentencing and to submit post-sentencing briefing; he also opposed later motions to amend.
No meaningful substantive objection was presented: Harrell’s main argument—duplication with restitution—was legally incorrect in light of Wagner v. United States, and he did not meaningfully contest the amount.
No sentencing-severity showing: the panel concluded the same forfeiture would be imposed on remand because the record offered no reason for the district court to deny forfeiture.

4. Presence rights and plain-error posture

Because Harrell did not timely raise presence or oral/written-conflict arguments at the district court after the forfeiture order and amendment efforts, the panel reviewed under plain error (notably citing United States v. Robinson on the obligation to object to action already taken).

Due Process: no “clear” or “obvious” constitutional error because, under United States v. Gagnon and Kentucky v. Stincer, the touchstone is whether absence thwarted fairness. Given the full notice and multiple opportunities to be heard (including supplemental briefing), Harrell could not show unfairness.
Rule 43(a): the court found a violation (sentencing includes forfeiture; Rule 43(a) generally requires presence), but no effect on substantial rights because Harrell could not show prejudice—indeed, the unusual procedure gave him more time to object.

5. No impermissible oral/written conflict

The panel reaffirmed the oral-supremacy rule (United States v. Schultz; United States v. Schock), but held the case presented no “true conflict.” The oral sentence explicitly deferred forfeiture; the later written judgment implemented that deferral. The opinion analogized to restitution deferral practice approved in United States v. Campbell, Manrique v. United States, and Dolan v. United States.

C. Impact

The decision’s principal impact is doctrinal and remedial:

Sixth Circuit rule: violations of Fed. R. Crim. P. 32.2(b)(4)(B) are treated as violations of a time-related directive and reviewed for harmless error, not presumed prejudice.
Practical consequence: defendants challenging late-imposed forfeiture will need to show prejudice—typically by demonstrating lack of notice, lack of opportunity to contest, or a plausible substantive objection that could have changed the forfeiture outcome or amount.
Rule 36 clarity: the opinion reinforces that Rule 36 cannot be used as a vehicle to add new substantive sentencing components not imposed at sentencing, even though Rule 32.2(b)(4)(B) contemplates “at any time” clerical correction.
Presence litigation narrowed by prejudice: even when Rule 43(a) is violated by written-only imposition of a sentencing component, relief may be unlikely without a concrete showing that the defendant’s presence could have mattered.

At the same time, the opinion does not “license” late forfeiture: it expressly labels the procedure erroneous and treats compliance with Rule 32.2 as the proper course. The decision instead shifts the appellate remedy from near-automatic vacatur (under a claim-processing lens) to a prejudice-centered inquiry.

IV. Complex Concepts Simplified

Criminal forfeiture (money judgment): a sentencing tool requiring the defendant to forfeit proceeds or property tied to the crime. A “money judgment” fixes a dollar amount even if specific assets are not identified.
Rule 32.2’s typical sequence: notice in the indictment (Rule 32.2(a)); a preliminary forfeiture order before sentencing (Rule 32.2(b)(1)–(2)); and inclusion of forfeiture in the sentence and judgment (Rule 32.2(b)(4)).
Rule 36 “clerical error”: fixes record-keeping mistakes (typos, mismatches between oral and written terms). It is not a license to add new punishment.
Time-related directive vs claim-processing rule: both use “must,” but a time-related directive primarily urges courts to act promptly and is enforced through harmless-error review; a claim-processing rule is typically stricter and can trigger mandatory consequences when properly invoked.
Harmless error vs plain error: harmless error asks whether an error affected substantial rights; plain error adds additional hurdles when the defendant did not timely object (including the requirement the error be obvious and prejudicial, and that correction be warranted to protect judicial integrity).
Oral vs written sentence: generally, what the judge says in open court controls. But if the oral sentence defers a decision, a later writing that makes that deferred decision may be viewed as implementing (or clarifying) the oral sentence rather than contradicting it.

V. Conclusion

United States v. Jeremy Wayne Harrell establishes a consequential Sixth Circuit rule for criminal forfeiture procedure: Fed. R. Crim. P. 32.2(b)(4)(B) is a time-related directive, so violations are reviewed for harmless error rather than treated as presumptively prejudicial. Although the district court erred by failing to impose forfeiture at sentencing and by later adding forfeiture via amended judgment, the Sixth Circuit affirmed because Harrell had extensive notice, repeated opportunities to contest, and no viable substantive challenge that could have altered the forfeiture outcome.

The broader significance is remedial: forfeiture timing mistakes remain errors, but appellate relief will increasingly turn on a concrete showing of prejudice— especially lack of notice, lack of opportunity to be heard, or a plausible dispute about forfeiture’s basis or amount.