Precedents Cited

1) The right of presence at sentencing and forfeiture as part of the sentence

The court situated Rule 32.2(b)(4)(B) within the broader “right of presence” at sentencing:

• United States v. Maiorana, 153 F.4th 306 (2d Cir. 2025) (en banc): Cited for the proposition that the Rule 43(a)(3) right of presence at sentencing is grounded in constitutional and common-law roots. Andino uses Maiorana to frame forfeiture-pronouncement rights as an extension of the same fundamental sentencing-presence principles.
• United States v. Johnson, 315 F.2d 714 (2d Cir. 1963): Quoted for describing the right to be present when sentence is imposed as “fundamental.” This supports treating sentencing formalities—like what must be said in open court—as closely tied to core rights.
• United States v. Reiter, 897 F.2d 639 (2d Cir. 1990): Cited to underscore that Rule 43 was intended to codify constitutional and common-law presence rights. This helps the panel justify its assumption (without deciding) that Rule 32.2(b)(4)(B)’s pronouncement requirement may similarly reflect constitutional or common-law interests.

2) Rule 32.2(b)(4)(B) and what happens when forfeiture is not pronounced

• United States v. Petix, 767 F. App’x 119 (2d Cir. 2019): Used as the contrast case. In Petix, the challenged monetary forfeiture was not mentioned in the oral sentence or the written judgment, creating a notice/pronouncement problem. The Andino panel distinguished Petix on two critical grounds: (i) Andino’s record repeatedly referenced the $50,000 money judgment, and (ii) Petix did not involve a plea agreement or an asserted waiver of Rule 32.2 rights.
• United States v. DeMartino, 112 F.3d 75 (2d Cir. 1997): Cited for the general principle that, absent a valid waiver, the sentencing court must discharge its duty (here, ensuring awareness at sentencing) as a condition for incorporating a component into the sentence. The panel uses DeMartino as the legal bridge: if Rule 32.2’s sentencing-stage notice is required, waiver can remove the need for strict adherence.

3) Standards for waiving important rights in criminal proceedings

• Jones v. Murphy, 694 F.3d 225 (2d Cir. 2012) (quoting Johnson v. Zerbst, 304 U.S. 458 (1938)): Invoked for the “every reasonable presumption against waiver of fundamental constitutional rights” canon. The panel acknowledges the judiciary’s usual caution, then proceeds to apply the familiar waiver-enforcement test.
• Brady v. United States, 397 U.S. 742 (1970): Supplies the controlling formulation: waivers are enforceable when they are voluntary, knowing, and intelligent, with “sufficient awareness of the relevant circumstances and likely consequences.” The panel measures Andino’s plea agreement and plea colloquy against that benchmark.
• United States v. Ready, 82 F.3d 551 (1996): Cited by Andino for the proposition (as he framed it) that waivers may need to be “effectuate[d] and confirm[ed]” on the plea record. The panel sidestepped the broadest version of Andino’s argument (“we need not decide whether Andino was entitled to an explicit confirmation...”), because the colloquy in fact did confirm the relevant relinquishment in substance.
• Sanford v. United States, 841 F.3d 578 (2016): Cited to reinforce that, in the absence of evidence of coercion or misunderstanding, courts will hold defendants to their plea waivers.

Legal Reasoning

The panel’s reasoning proceeds in a structured waiver analysis that treats Rule 32.2(b)(4)(B) as a sentencing protection that can be relinquished:

1. Identify the protected interest. Rule 32.2(b)(4)(B) requires the court to “include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing.” The court ties this to the broader Rule 43(a)(3) presence right and, by extension, to constitutional/common-law sentencing principles.
2. Apply the waiver framework. Even for important rights, waiver is enforceable when it is voluntary, knowing, and intelligent (Brady), notwithstanding the presumption against waiver (Johnson v. Zerbst via Jones v. Murphy).
3. Find express written waiver of the precise Rule-based protections. The plea agreement did not merely agree to forfeiture; it explicitly waived “notice provisions in Rule[] 32.2” regarding (a) “announcement of the forfeiture at sentencing” and (b) “incorporation of the forfeiture in the judgment,” among other points.
4. Confirm the defendant’s understanding on the record (in substance). The court held it sufficient that, at the plea colloquy, Andino was orally advised that he was waiving his right to notice of forfeiture orders and that forfeiture would be part of his sentence and judgment—and he confirmed he understood and agreed. The panel emphasized that Rule 32.2(b)(4)(B) need not be “mentioned by name” when “its substance and the relevant consequences plainly were.”
5. Reinforce that there was no surprise or ambiguity about the amount. The $50,000 figure appeared repeatedly in multiple case documents and in the plea proceedings, distinguishing the case from scenarios where forfeiture emerges without adequate indication in the record.

The core holding is therefore not that Rule 32.2(b)(4)(B) is unimportant, but that a defendant may knowingly and voluntarily bargain away its sentencing-stage protections—and where the record shows he did so, appellate review will not resurrect them.

Impact

Although nonprecedential, the order has practical implications for plea bargaining and forfeiture practice in the Second Circuit:

• Plea drafting and litigation posture. It validates (at least as a matter of enforceability analysis) detailed forfeiture waivers that expressly reference Rule 32.2’s notice and announcement provisions. Defendants who sign such provisions should expect significant difficulty challenging forfeiture on pronouncement/notice grounds later.
• “Substance over citation” in colloquies. The court indicates that a colloquy can sufficiently confirm waiver even without naming the specific rule number, so long as the defendant is told what rights are being given up and what that means (e.g., forfeiture will be imposed as part of the sentence).
• Record-based distinctions from forfeiture “surprise” cases. The panel’s contrast with Petix signals that outcomes may turn on (i) whether forfeiture was clearly identified in advance and (ii) whether there was an explicit waiver. Where forfeiture is not clearly flagged, or where the waiver is absent or vague, defendants retain stronger arguments that sentencing-stage pronouncement/notice failures are reversible or require correction.
• Incentives for sentencing courts. Even with waivers, prudent district courts may continue to orally announce forfeiture at sentencing to avoid appellate disputes. But Andino suggests that omissions may be insulated where the defendant’s waiver and record notice are robust.