Rule 32.2 Forfeiture Finality: Preliminary Orders Become Final at Sentencing

Introduction

United States v. Banks, No. 24-40221 (5th Cir. June 3, 2025), addresses the question whether a criminal defendant may appeal a final order of forfeiture when a preliminary order—statutorily made final at sentencing—was not orally announced or included in the written judgment. Jordan Rashaud Banks pleaded guilty to conspiracy to distribute methamphetamine. Before sentencing, the district court entered a preliminary order of forfeiture; after sentencing, it entered a final order of forfeiture post-appeal notice. Banks challenged both the judgment and the final forfeiture, arguing lack of jurisdiction and procedural defects under Federal Rule of Criminal Procedure 32.2.

Summary of the Judgment

The Fifth Circuit granted the government’s motion to dismiss Banks’s appeal of the final order of forfeiture for lack of standing, holding that a preliminary order of forfeiture “becomes final as to the defendant at sentencing” under Rule 32.2(b)(4)(A). Banks therefore had no property interest to challenge in the separate final order. The court then reviewed Banks’s challenge to his criminal judgment for plain error and found he failed to show that any procedural omission—failure to pronounce or include forfeiture—affected his substantial rights. It affirmed the conviction and sentence, and noted that any clerical omission could be corrected under Rule 36.

Analysis

Precedents Cited

United States v. De Los Santos, 260 F.3d 446 (5th Cir. 2001): Held that preliminary forfeiture orders become final at sentencing and final orders thereafter affect only third‐party interests.
United States v. Mills, 620 F. App’x 343 (5th Cir. 2015): Reaffirmed lack of standing where preliminary order became final at sentencing.
United States v. Stone, 435 F. App’x 320 (5th Cir. 2011); United States v. Torres, 450 F. App’x 361 (5th Cir. 2011): Similar per curiam holdings.
United States v. Marquez, 685 F.3d 501 (5th Cir. 2012): Emphasized the notice function of Rule 32.2 and applied plain‐error review when a defendant fails to object.
United States v. Omigie, 977 F.3d 397 (5th Cir. 2020): Found sufficient opportunity to object even without oral pronouncement when forfeiture notice appeared in indictment, plea and PSR.
United States v. Nagin, 810 F.3d 348 (5th Cir. 2016): Confirmed Rule 36 may correct omission of forfeiture in the judgment.
United States v. Real Property at 404 W. Milton St., 650 F. App’x 233 (5th Cir. 2016); United States v. Bennett, 423 F.3d 271 (3d Cir. 2005): Held clerical‐error correction appropriate for adding forfeiture.
United States v. Robinson, 137 F. App’x 273 (11th Cir. 2005): Prior to Rule 32.2 amendment, held “self-executing” language insufficient without affirmative inclusion, but its rationale was superseded by the 2009 amendments to Rule 32.2.

Legal Reasoning

The court’s analysis turned on the text of Federal Rule of Criminal Procedure 32.2:

Rule 32.2(b)(2): Requires a district court “must promptly enter a preliminary order of forfeiture” after finding property subject to forfeiture.
Rule 32.2(b)(4)(A): States that the preliminary order “becomes final as to the defendant . . . at sentencing.”
Rule 32.2(b)(4)(B): Requires the court to “include the forfeiture order . . . in the judgment,” and permits correction of failure to do so “at any time under Rule 36.”

Because the preliminary order by its terms became final at sentencing, Banks’s property interest was extinguished in the preliminary phase. Under De Los Santos and its progeny, only the preliminary order is appealable by the defendant; the final order governs third‐party claims. Banks’s argument that “self-executing” language alone cannot create finality was undercut by the explicit Rule 32.2 text and subsequent amendments clarifying that a clerical omission can be cured under Rule 36.

On his challenge to the judgment, the court applied plain‐error review (Marquez). Banks had notice of the forfeiture through multiple channels (indictment, plea hearing, PSR, preliminary order). He failed to show a reasonable probability of a lesser forfeiture obligation but for the omission; thus, he could not establish an effect on substantial rights. The court therefore affirmed.

Impact

This decision reaffirms that:

Preliminary orders of criminal forfeiture automatically become final as to the defendant at sentencing, even if not orally pronounced or included in the written judgment.
Defendants must appeal any forfeiture issue within the window for criminal appeals at sentencing; a post-sentencing “final” order is not a fresh error affecting their rights.
Counsel should object at or before sentencing if forfeiture is omitted, to preserve issues for appeal under the normal Rule 32.2 timeline.
Rule 36 provides a safe, ongoing mechanism to correct clerical omissions (e.g., adding forfeiture to the written judgment) without disturbing regular appellate rights.

Moving forward, this case will guide district courts and practitioners in handling forfeiture orders, ensuring that preliminary orders comply with Rule 32.2’s timing and notice requirements and that any omissions are promptly addressed—either by objection at sentencing or by Rule 36 motions thereafter.

Complex Concepts Simplified

Criminal Forfeiture: A penalty by which the government seizes assets connected to criminal activity.
Preliminary Order of Forfeiture: An order entered after a defendant’s conviction that identifies property subject to forfeiture; it secures the government’s claim and becomes final as to the defendant at sentencing.
Final Order of Forfeiture: An order entered after notice to third parties, resolving competing claims to the forfeited property.
Rule 36 (Clerical Error): Allows the court, at any time, to correct minor mistakes in judgments, such as adding omitted forfeiture language.
Plain‐Error Review: A standard of appellate review for unpreserved errors; defendant must show the error was obvious and affected substantial rights.

Conclusion

United States v. Banks clarifies that under Rule 32.2, a preliminary forfeiture order is “self-executing” at sentencing and deprives the defendant of any further property interest to challenge in a subsequently issued final order. Defendants must challenge forfeiture procedures at sentencing or in the direct appeal of the judgment; post-sentencing corrective orders fall outside their appealable rights and are subject only to Rule 36. This decision strengthens the certainty and finality of criminal forfeiture proceedings and underscores the importance of timely objections and clear record-building at sentencing.