USA v. Alan Trent Harley

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11432
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ALAN TRENT HARLEY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00235-PGB-LRH-1
____________________
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2 Opinion of the Court 21-11432
Before WILSON, J ORDAN, and BLACK , Circuit Judges.
PER CURIAM:
The Government appeals Alan Harley’s sentence of 15
months’ imprisonment for wire fraud. It argues the court erred by
crediting Harley’s forfeiture toward his restitution obligation and
lacked jurisdiction to modify the forfeiture order and judgment be-
yond the timeframe provided by Federal Rule of Criminal Proce-
dure 35(a). After review,1 we vacate and remand.
District courts must order restitution in the full amount of
each victim’s loss in wire fraud cases.
United States v. Dickerson,
370 F.3d 1330, 1335-36 (11th Cir. 2004). Imposition of forfeiture is
mandatory if a statute states that courts shall order forfeiture.
United States v. Hatum, 969 F.3d 1156, 1162 (11th Cir. 2020),
cert.
denied, 142 S. Ct. 72 (2021). If a person is convicted of wire fraud
and the government provides notice of the forfeiture in the indict-
ment, the court shall order forfeiture. 28 U.S.C. § 2461(c);
United
States v. Foley, 508 F.3d 627, 635 (11th Cir. 2007).
A defendant is not entitled to offset his restitution obligation
by the value of property forfeited to the government because
1 We review
de novo the legality of restitution and forfeiture orders, a finding
that a fine is constitutionally excessive, and questions of jurisdiction.
United
States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003);
United States v. Hatum,
969 F.3d 1156, 1162 (11th Cir. 2020),
cert. denied, 142 S. Ct. 72 (2021);
United
States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002).
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21-11432 Opinion of the Court 3
forfeiture and restitution serve different purposes.
United States v.
Joseph, 743 F.3d 1350, 1354 (11th Cir. 2014). A district court gen-
erally has no authority to order such an offset.
Id. If the funds from
forfeiture and restitution go to different parties, requiring a defend-
ant to pay both forfeiture and restitution does not result in an im-
permissible double recovery.
United States v. Hernandez, 803 F.3d
1341, 1344 (11th Cir. 2015).
The Eighth Amendment prohibits the imposition of exces-
sive fines. U.S. Const. amend. VIII. A fine is excessive if it is grossly
disproportionate to the gravity of an offense.
United States v. Sper-
razza, 804 F.3d 1113, 1126-27 (11th Cir. 2015). Forfeiture is gener-
ally constitutional if the value of the forfeited property is within or
near the range of fines permitted by the Guidelines.
Id. A defend-
ant who derives pecuniary gain from an offense or causes another
person to suffer a pecuniary loss may be fined up to twice his gross
gain or twice the gross loss. 18 U.S.C. § 3571(d).
Crediting Harley’s forfeiture obligation toward the restitu-
tion amount was erroneous.2 The court was required to impose
forfeiture. 28 U.S.C. § 2461(c);
Foley, 508 F.3d at 635. Harley was
not entitled to have his restitution offset by his forfeiture, and the
court lacked authority to order it.
See Joseph, 743 F.3d at 1354.
2 The court’s oral forfeiture pronouncement does not override the forfeiture
and judgment because there is no unambiguous conflict.
See United States v.
Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (stating if an orally pronounced
sentence unambiguously conflicts with the written judgment, the pronounce-
ment controls).
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4 Opinion of the Court 21-11432
Ordering Harley to pay both forfeiture to the Government and res-
titution to Medicare did not result in an impermissible double re-
covery.
See Hernandez, 803 F.3d at 1344. Harley’s combined res-
titution and forfeiture obligations, equal to double the loss he
caused of $876,893.63, was presumptively not an excessive fine be-
cause it was within the Guidelines fine range.
See Sperrazza, 804
F.3d at 1126-27. Furthermore, a fine of double the loss Harley
caused was not grossly disproportionate to Harley’s offense of de-
frauding Medicare for nearly a million dollars.
Accordingly, we vacate and remand.3
VACATED AND REMANDED.
3 The court originally entered judgment on March 25, 2021. The court did not
address the Government’s motion for clarification of its forfeiture order until
June 22, 2021. The Government’s appeal is not mooted by the court’s correc-
tion of its error because the court amended its forfeiture order and judgment
beyond the 14 days provided by Rule 35(a) and thus lacked jurisdiction. Fed.
R. Crim. P. 35(a);
United States v. Phillips, 597 F.3d 1190, 1197 (11th Cir. 2010)
(providing a district court may correct a sentence within the time provided by
Rule 35(a), but lacks jurisdiction to modify a sentence outside of that
timeframe).
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