Rule 32.2(b)(4)(B) Treats Omitted Forfeiture in the Judgment as a Correctable Clerical Error (and Government Appeal Exception Can Unlock Post-Remand Review)

Case: United States v. Nidal Hatum (11th Cir. Jan. 14, 2026) (unpublished)
Panel: Newsom, Brasher, and Black, JJ. (per curiam)
Posture: Defendant’s appeal from a forfeiture money judgment imposed on remand after the government’s successful forfeiture appeal.

I. Introduction

This appeal is the latest installment in long-running forfeiture litigation arising from Nidal Ahmed Waked Hatum’s guilty plea to conspiracy to commit money laundering under 18 U.S.C. §§ 1956(h) and 1957(a). Waked admitted a scheme in which he drew funds from a Panamanian bank (International Bank of China, “ICBC”) based on fraudulent invoices, wired the funds through Florida corporations he owned, and rapidly returned the funds to Panama—ultimately repaying ICBC with interest, leaving the bank with no net loss.

The central issues on this appeal were:

Appeal waiver scope: whether Waked’s sentence-appeal waiver still barred review after the government had previously appealed the sentence.
District court jurisdiction during appeal: whether the district court could amend the criminal judgment—while the appeal was pending—to include forfeiture omitted from the judgment.
Forfeiture merits: whether the $10,426,000 forfeiture money judgment had a sufficient factual basis, reflected “double counting,” or was excessive under the Eighth Amendment.
Issue preclusion within the same case: whether arguments about substitute assets, personal receipt, and money-judgment authority were foreclosed by the law-of-the-case doctrine based on the prior published decision.

II. Summary of the Opinion

The Eleventh Circuit affirmed the $10,426,000 forfeiture money judgment. It held:

Waiver did not bar the appeal: The plea agreement’s “government appeal” exception was ambiguous as to post-remand resentencing; ambiguity was construed against the government, permitting Waked’s appeal, following United States v. Vazquez.
Jurisdiction to amend judgment: Under Fed. R. Crim. P. 32.2(b)(4)(B), omission of forfeiture from the judgment is a clerical error correctable “at any time” under Rule 36, even during a pending appeal.
Factual basis/amount: Waked’s admissions plus unobjected-to PSI facts supported forfeiture; unobjected PSI facts are admitted for sentencing/forfeiture calculations.
No “double counting”: Aggregating the total amount laundered was proper; each monetary transaction is a distinct laundering act, consistent with United States v. Martin.
Law of the case: Prior appeal United States v. Waked Hatum, 969 F.3d 1156 (11th Cir. 2020) foreclosed renewed challenges about substitute assets, personal receipt, and money-judgment authority.
Eighth Amendment: The forfeiture was not “grossly disproportional” under United States v. Bajakajian; it was well below the statutory maximum fine (twice the criminally derived property), entitled to a strong presumption of constitutionality per United States v. Chaplin's, Inc., and money laundering causes societal harm even absent victim net loss.

III. Analysis

A. Precedents Cited

1. Appeal-waiver interpretation and ambiguity

King v. United States: Reinforced that knowing and voluntary appeal waivers must be enforced when invoked, and that plea agreements are construed like contracts. The panel used King as the general enforcement baseline, but then relied on contract/ambiguity rules to reject the government’s position here.
Allen v. Thomas: Provided the key interpretive canon that ambiguities in plea agreements are resolved against the government. That canon controlled once the court found the waiver’s “government appeal” exception unclear as applied to post-remand resentencing.
United States v. Vazquez: Closest analogue. The panel treated Vazquez as directly supporting the proposition that when a plea agreement releases the defendant from an appeal waiver upon a government appeal of “the sentence imposed,” ambiguity about resentencing is construed in the defendant’s favor—allowing an appeal after remand.

2. District court jurisdiction during pending appeal; clerical error corrections

Griggs v. Provident Consumer Disc. Co.: Stated the general divestiture rule—notice of appeal transfers jurisdiction to the court of appeals over aspects involved in the appeal. The panel treated Griggs as the starting point, then applied a recognized exception for clerical-error corrections.
United States v. Pease: Stated that an appeal divests jurisdiction “except for clerical errors pursuant to Rule 36.” The panel also explained that Pease was superseded on this point by the 2009 amendment to Rule 32.2 that expressly makes omission of forfeiture correctable under Rule 36.
United States v. Petrie: Confirmed that forfeiture must be part of the sentence and included in the judgment under Rule 32.2. This supported characterizing the omission as an “oversight or omission” rather than a substantive resentencing.

3. Forfeiture as punishment and evidentiary basis at sentencing

Libretti v. United States: Characterized criminal forfeiture as punishment imposed following conviction, grounding the court’s treatment of forfeiture as part of sentencing.
United States v. Gilbert (and its later procedural recognition in United States v. Marion): Used to reinforce that forfeiture is part of the sentence.
United States v. Wade: Established that failure to object to factual allegations in the PSI admits those facts for sentencing purposes—critical to upholding reliance on the PSI’s $10,426,000 figure.
United States v. Evans: Supported reliance on facts admitted via guilty plea as a proper factual basis for sentencing findings.
United States v. Malone and United States v. Johnson: Framed and constrained the defendant’s unpreserved challenges through plain-error review, especially emphasizing that “plainness” typically requires controlling precedent or unequivocally clear statutory text.

4. What property is “involved in” money laundering; aggregation vs “double counting”

United States v. Puche: Supplied the definition of forfeitable property under 18 U.S.C. § 982(a)(1), including the “corpus” of laundered funds.
United States v. Martin (citing United States v. Li): Provided the key analytical move against Waked’s “static pool of funds” theory. Martin treats each laundering transaction as a discrete harm to society and allows aggregation even if funds trace back to a single source.

5. Law-of-the-case and intra-circuit binding rules

United States v. Jordan and This That And The Other Gift And Tobacco, Inc. v. Cobb Cnty., Ga.: Defined the law-of-the-case doctrine and its purposes, used to bar relitigation of issues resolved in the first appeal.
United States v. Anderson: Listed exceptions to law-of-the-case (new evidence, intervening controlling law, or manifest injustice/clear error), none of which were found applicable.
United States v. Archer: Reinforced the prior-panel precedent rule’s binding effect unless overruled en banc or by the Supreme Court.

6. Eighth Amendment “Excessive Fines” framework and proportionality

United States v. Browne (citing United States v. Bajakajian): Provided the three-factor proportionality test: class-of-persons, other authorized penalties, and harm caused.
United States v. Chaplin's, Inc.: Supplied the “strong presumption of constitutionality” when forfeiture is below the statutory maximum fine, and the “great weight” given to that comparison.
United States v. 817 N.E. 29th Drive, Wilton Manors, Fla.: Reinforced the idea that when forfeiture is within or near guideline fine ranges, excessiveness is unlikely.
United States v. Schwarzbaum: Reinforced that the presumption is “particularly strong” when the penalty sought is below the statutory maximum.
United States v. Ramirez (unpublished) and United States v. Morris: The panel noted Ramirez is nonprecedential and, like Bajakajian, distinguishable where the offense is a mere reporting violation unconnected to other criminal activity.

7. Prior appeal framing (binding within the same case)

United States v. Waked Hatum, 969 F.3d 1156 (11th Cir. 2020), cert. denied, 142 S. Ct. 72 (2021): The foundational decision making forfeiture mandatory under 18 U.S.C. § 982(a)(1) for this conviction and rejecting multiple defenses (including that returning funds negates forfeiture). It also directed the district court to calculate the amount and conduct the Eighth Amendment analysis on remand.
Honeycutt v. United States: Mentioned in the prior appeal; the panel reiterated that Honeycutt’s “tainted property” limitation in the context of 21 U.S.C. § 853(a) did not control forfeiture under § 982(a)(1) in this case (as already resolved).

8. “No net loss” does not defeat fraud-based theories (plain-error context)

Shaw v. United States and Kousisis v. United States: Cited to undermine Waked’s contention that fraud requires net economic loss. While those decisions interpret domestic federal fraud statutes, the panel relied on them to show Waked’s “loss is required” theory was inconsistent with Supreme Court fraud principles—thus not “plain error.”

B. Legal Reasoning

1. The waiver holding: government-appeal exception can extend to post-remand resentencing

The court’s interpretive move is narrow but important: it did not hold all government appeals categorically nullify waivers forever. Instead, it found the plea agreement’s text ambiguous on whether the “if the United States exercises its statutory rights to appeal” exception only applied to the first sentencing or also to a resentencing on remand. Invoking Allen v. Thomas, the court construed the ambiguity against the government and, consistent with United States v. Vazquez, allowed the defendant to appeal the forfeiture money judgment imposed on remand.

Practical effect: In drafting and litigating appeal waivers, the government bears the risk of imprecision where it wants the waiver to “spring back” after a successful government appeal.

2. The jurisdiction holding: Rule 32.2(b)(4)(B) + Rule 36 creates a forfeiture-specific divestiture exception

The court treated the omission of forfeiture from the amended judgment as clerical, not substantive. That classification mattered because Griggs divestiture yields to Rule 36 corrections. The panel relied heavily on the text of Fed. R. Crim. P. 32.2(b)(4)(B), which explicitly states that failure to include forfeiture in the judgment “may be corrected at any time under Rule 36.” That explicit “any time” language allowed correction even while the appeal was pending.

The opinion also clarifies why United States v. Pease no longer controls the forfeiture-omission scenario: the 2009 amendment to Rule 32.2 superseded Pease’s earlier jurisdictional limitation.

3. The factual-basis and amount holding: admissions + unobjected PSI can carry forfeiture

On plain-error review, the panel held Waked’s guilty-plea admissions supported that the funds were “derived from fraud on a bank in Panama” and that the scheme occurred “in whole or in part” in the United States through Florida corporations—fitting the statute’s “specified unlawful activity” definition (18 U.S.C. §§ 1957(f)(3), 1956(c)(7)(B)(iii)).

For the amount, the district court used the PSI’s unobjected-to total: $10,426,000. The panel reaffirmed the circuit rule that failure to object to PSI facts admits them for sentencing purposes (United States v. Wade), and treated forfeiture as part of sentencing (Libretti v. United States).

4. Rejecting “double counting”: aggregation reflects transaction-based laundering liability and harm

Waked’s key merits theory was conceptual: because he repeatedly drew and repaid funds on a single credit line, forfeiture should be limited to the maximum outstanding draw (a “static pool”). The panel rejected that characterization and held each draw and laundering cycle involved a discrete amount of money. It further reasoned that even if the “single pool” analogy were accepted, aggregation is still consistent with the nature of money laundering: each transaction is a separate laundering act and harms society by frustrating tracing and enforcement—reasoning drawn from United States v. Martin (and United States v. Li).

5. Law-of-the-case enforcement: preventing relitigation of forfeiture architecture already resolved

The opinion is also an exercise in intraproceeding finality. It refused to revisit arguments already decided in the published first appeal, including the availability of substitute asset forfeiture and the permissibility of forfeiture money judgments, applying United States v. Jordan. This kept the remand focused on the two tasks the first appeal left open: amount calculation and Eighth Amendment proportionality.

6. Eighth Amendment proportionality: “below statutory max” presumption plus societal harm of laundering

Applying the three-factor test from United States v. Browne and United States v. Bajakajian, the panel emphasized:

Class of persons: Waked is a paradigmatic money launderer (unlike Bajakajian’s reporting offender).
Other authorized penalties: The statutory maximum fine was twice the criminally derived property involved: $20,852,000, making the $10,426,000 forfeiture well below the maximum and thus strongly presumed constitutional under United States v. Chaplin's, Inc. and United States v. Schwarzbaum.
Harm: Even without net victim loss, laundering causes societal harm by impeding tracking of illicit funds, echoing United States v. Martin and the prior appeal’s admonition to look beyond “bottom line” harm.

C. Impact

Forfeiture procedure and appellate practice: The decision underscores that omitted forfeiture language in a judgment is not necessarily fatal on appeal; district courts in the Eleventh Circuit can correct the omission as a clerical error under Rule 36 by operation of Rule 32.2(b)(4)(B), even during a pending appeal.
Plea-waiver drafting: The case pressures prosecutors to draft government-appeal exceptions with explicit post-remand consequences. If the government wants the waiver to reattach after resentencing absent a second government appeal, it should say so.
Forfeiture valuation in laundering cases: The ruling reinforces transaction aggregation (rather than “peak balance”) when calculating the “corpus” involved in laundering, especially where the defendant repeatedly cycles funds through the financial system.
Eighth Amendment analysis: It signals that in money laundering cases, “no net loss” arguments face an uphill battle because the harm inquiry includes systemic societal harms and enforcement-impairment harms—and because forfeitures below statutory maxima are strongly presumed constitutional.

IV. Complex Concepts Simplified

Forfeiture money judgment: A personal judgment for a dollar amount representing forfeitable proceeds/property “involved in” the offense. It can be imposed even if the exact dollars are gone; the government can later seek assets to satisfy the judgment.
“Property involved in” money laundering: Not only profits. It includes the actual laundered funds (the “corpus”) and sometimes facilitating property. Here the court treated the laundered transfers themselves as forfeitable.
Substitute assets: If forfeitable property is unavailable (spent, transferred, etc.), statutes can allow forfeiture of other property the defendant owns to satisfy the obligation. This case did not reopen that debate because it was already resolved in the first appeal.
Law of the case: Once an appellate court decides an issue in a case, that decision generally binds later stages of the same case. It prevents parties from repeatedly relitigating the same legal questions after remand.
Clerical error vs. substantive change (Rules 36 and 32.2): A clerical error is an omission or oversight in recording what the sentence includes. Rule 32.2 expressly labels failure to include forfeiture in the judgment as such an error, making it correctable “at any time.”
Excessive Fines Clause (“gross disproportionality”): The Eighth Amendment forbids punishments that are wildly out of proportion to the offense. Courts compare the forfeiture to who the statute targets, what penalties the law authorizes, and the harm caused.

V. Conclusion

The Eleventh Circuit’s decision affirms a substantial laundering forfeiture and, in doing so, clarifies two recurring procedural fault lines: (1) forfeiture omitted from the written judgment is a Rule 32.2(b)(4)(B) clerical error correctable under Rule 36 even during an appeal; and (2) where a plea agreement’s “government appeal” exception is ambiguous about post-remand resentencing, ambiguity is construed against the government, allowing appellate review. On the merits, the court reinforced that laundering forfeiture is calculated by aggregating transaction amounts, and that “no net loss” does not eliminate societal harm or render forfeiture grossly disproportionate—particularly when the forfeiture sits well below the statutory maximum fine.