McIntosh v. United States

P R E L I M I N A R Y P R I N T
Volume 601 U. S. Part 2
Pages 330–345
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 17, 2024
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
330 OCTOBER
TERM, 2023
Syllabus
McINTOSH v. UNITED STATES
certiorari
to the united states court of appeals for
the second circuit
No. 22–7386. Argued February 27, 2024—Decided April 17, 2024
Petitioner Louis McIntosh was indicted on multiple counts of Hobbs Act
robbery and frearm offenses. The indictment set forth the demand
that McIntosh “shall forfeit . . . all property . . . derived from proceeds
traceable to the commission of the [Hobbs Act] offenses.” The Govern-
ment also later provided McIntosh with a pretrial bill of particulars that
included as property subject to forfeiture $75,000 in cash and a BMW
that McIntosh purchased just fve days after one of the robberies.
After a jury convicted McIntosh, the District Court imposed a forfeiture
of $75,000 and the BMW at the sentencing hearing. Although the Dis-
trict Court also ordered the Government to submit an order of forfeiture
for the court's signature within a week from the hearing, the Govern-
ment failed to do so. On appeal, the Government moved for a limited
remand to supplement the record with a written order of forfeiture.
The Second Circuit granted the unopposed motion. Back in District
Court, McIntosh argued that the failure to comply with Federal Rule of
Criminal Procedure 32.2(b)(2)(B)—which provides that “[u]nless doing
so is impractical,” a federal district court “must enter the preliminary
order [of forfeiture] suffciently in advance of sentencing to allow the
parties to suggest revisions or modifcations before the order becomes
fnal as to the defendant”—meant that the District Court could not pro-
ceed with forfeiture at all. The District Court overruled McIntosh's
objections, fnding that the Rule is a time-related directive, and that the
failure to enter a preliminary order of forfeiture before sentencing did
not prevent the court from ordering forfeiture because the missed dead-
line did not prejudice McIntosh. The Second Circuit affrmed in rele-
vant part.
Held: A district court's failure to comply with Rule 32.2(b)(2)(B)'s require-
ment to enter a preliminary order before sentencing does not bar a
judge from ordering forfeiture at sentencing subject to harmless-error
principles on appellate review. Pp. 336–345.
(a) Although the District Court did not comply with Rule 32.2(b)(2)(B)
when it failed to enter a preliminary order of forfeiture before McIn-
tosh's initial sentencing, the District Court retained its power to order
forfeiture against McIntosh. Pp. 336–342.

Page Proof Pending Publication
Cite
as: 601 U. S. 330 (2024)
331
Syllabus
(1) This Court has identifed three types of time limits: (i) jurisdic-
ti
onal deadlines; (ii) mandatory claim-processing rules, and (iii) time-
related directives. See Dolan v. United States, 560 U. S. 605, 610–611.
McIntosh claims that Rule 32.2(b)(2)(B) is a claim-processing rule—a
mandatory deadline that regulates the timing of motions or claims be-
fore the court and that, unlike jurisdictional deadlines, is subject to
waiver and forfeiture by the litigant. Id., at 610. The Government, on
the other hand, argues that Rule 32.2(b)(2)(B) is a fexible time-related
directive—a deadline that seeks speed by directing a public offcial to
act by a certain time and that, if missed, does not deprive the offcial of
“the power to take the action to which the deadline applies.” Id., at 611.
Noncompliance with a mandatory claim-processing rule is presumed to
be prejudicial, Manrique v. United States, 581 U. S. 116, 125 (2017), but
noncompliance with a time-related directive is, in this context, subject
to harmless-error principles on appellate review, Fed. Rule Crim. Proc.
52(a). The Court agrees with the Second Circuit and the Government
that Rule 32.2(b)(2)(B) establishes a time-related directive. Pp. 337–338.
(2) The Court in Dolan addressed the proper remedy when a dis-
trict court misses a statutory deadline to take action related to criminal
sentencing imposed by a statute that “ `d[id] not specify a consequence
for noncompliance.' ” 560 U. S., at 611. The Court held that the provi-
sion at issue was a time-related directive, such that, if “a sentencing
court misses the . . . deadline,” it retains the power to act in that circum-
stance. Ibid. Other cases similarly have recognized that certain dead-
lines, if missed, do not deprive a public offcial of the power to take the
action to which the deadline applies. See, e. g., Barnhart v. Peabody
Coal Co., 537 U. S. 149, 171–172; Regions Hospital v. Shalala, 522 U. S.
448, 459, n. 3; United States v. James Daniel Good Real Property, 510
U. S. 43, 63–65. These cases involved timing provisions that did not
specify a consequence for the public offcials' noncompliance with the
prescribed deadlines. Pp. 338–340.
(3) Several features of Rule 32.2(b)(2)(B) lead to the conclusion that
the Rule is best understood as a time-related directive. First, its plain
language contemplates fexibility regarding the timing of a preliminary
order's entry, providing the indeterminate command that a preliminary
order be entered “suffciently in advance of sentencing ” “[u]nless doing
so is impractical.” This fexibility takes the Rule further away from
the category of “rigid” and “ `infexible claim-processing rule[s].' ” Eb-
erhart v. United States, 546 U. S. 12, 13 (per curiam). Second, Rule
32.2(b)(2)(B) does not impose a specifc consequence for noncompliance,
in contrast to other parts of Rule 32.2. See, e. g., 32.2(a). In the ab-
sence of such specifcation, courts typically “will not in the ordinary

332 M
cINTOSH v. UNITED STATES
Syllabus
course impose their own coercive sanction” for noncompliance with a
ti
ming directive. James Daniel Good, 510 U. S., at 63. Third, Rule
32.2(b)(2)(B) governs the conduct of the district court, not the litigants.
Mandatory claim-processing rules ordinarily “requir[e] that the parties
take certain procedural steps at certain specifed times,” Henderson v.
Shinseki, 562 U. S. 428, 435 (emphasis added), and time-related direc-
tives typically spur public offcials to act within a specifed time. That
distinction holds even in the examples that McIntosh identifes, and he
has not identifed a mandatory claim-processing rule that is analogous
to Rule 32.2(b)(2)(B). Pp. 340–342.
(b) McIntosh's contrary arguments are unpersuasive. He points to
the Rule's use of the word “must” to highlight its mandatory character,
but such language standing “alone has not always led this Court to in-
terpret statutes to bar judges . . . from taking action to which a missed
statutory deadline refers.” Dolan, 560 U. S., at 611–612. Construed
in context, the Rule contemplates some fexibility with its impracticality
exception and indeterminate command that a preliminary order be en-
tered “suffciently in advance of sentencing.” Nor does it “mak[e]
sense,” as McIntosh claims, to classify Rule 32.2(b)(2)(B) as a mandatory
claim-processing rule because the Government must move the process
forward. Although the Government plays an indispensable role in the
criminal-forfeiture process, the Rule is directed exclusively to the sen-
tencing court. McIntosh also contends that an affrmance here would
deprive the Rule of any effect, but a timely objection likely will prompt
the district court to enter the preliminary order and, if appropriate,
postpone sentencing. A timely objection would, at the very least, re-
sult in harmless-error review of the Rule's violation. Finally, because
McIntosh has not shown that reading the requirement as a time-related
directive would frustrate signifcantly Rule 32.2's effectiveness, McIn-
tosh's invocation of the Rule's purpose—to ensure due process and pro-
mote judicial economy—falls fat. Pp. 342–344.
(c) Noncompliance with Rule 32.2(b)(2)(B) is a procedural error sub-
ject to harmlessness review. Because McIntosh did not challenge the
lower courts' harmlessness analysis in either his certiorari petition or
his opening brief, this Court need not revisit it. Pp. 344–345.
58 F. 4th 606, affrmed.
Sotomayor, J., delivered the opinion for a unanimous Court.
Steven Y. Yurowitz argued the cause for petitioner.
With him on the briefs were William J. Dobie and Devi M.
Rao.
Page Proof Pending Publication

Cite
as: 601 U. S. 330 (2024)
333
Opinion of the Court
Matthew Guarnieri argued the cause for the United
St
ates. With him on the brief were Solicitor General Pre-
logar, Acting Assistant Attorney General Argentieri, Dep-
uty Solicitor General Gannon, and Katherine T. Allen.*
Justice Sotomayor delivered the opinion of the Court.
In certain criminal cases, Congress has authorized the
Government to seek forfeiture of a defendant's ill-gotten
gains as part of the defendant's sentence. Federal Rule of
Criminal Procedure 32.2 sets forth specifc procedures for
imposing criminal forfeiture in such cases. In particular,
Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is imprac-
tical,” a federal district court “must enter the preliminary
order [of forfeiture] suffciently in advance of sentencing to
allow the parties to suggest revisions or modifcations before
the order becomes fnal as to the defendant.”
The question presented in this case is whether a district
court that fails to comply with Rule 32.2(b)(2)(B)'s require-
ment to enter a preliminary order before sentencing is pow-
erless to order forfeiture against the defendant. In light of
the Rule's text and relevant precedents, this Court holds that
the failure to enter a preliminary order does not bar a judge
from ordering forfeiture at sentencing subject to harmless-
error principles on appellate review.
I
Between 2009 and 2011, Louis McIntosh committed a se-
ries of violent robberies and attempted robberies in New
York. In one such robbery, McIntosh and two others held a
man at gunpoint, bound and gagged him in his basement, and
then took $70,000 in cash from the man's house. Five days
later, McIntosh bought a BMW for approximately $10,000
*Briefs of amici curiae urging reversal were fled for the National Asso-
ciation of Criminal Defense Lawyers by Steven L. Kessler and David
M. Porter; and for the New York Council of Defense Lawyers by Noam
Biale.
Page Proof Pending Publication

Page Proof Pending Publication
334 M
cINTOSH v. UNITED STATES
Opinion of the Court
with cash and money orders and listed his mother as the
buyer
.
In June 2011, McIntosh was indicted along with fve others
on multiple counts of Hobbs Act robbery and frearm of-
fenses. The indictment set forth that, for the Hobbs Act
robbery counts, the defendants “shall forfeit to the United
States . . . all property . . . that constitutes or is derived
from proceeds traceable to the commission of the offenses,
including but not limited to a sum in United States currency
representing the amount of proceeds obtained as a result of
the offenses.” App. 10–11. The Government provided Mc-
Intosh with a pretrial bill of particulars the next month that
listed the BMW as “property subject to forfeiture.” Id., at
12, 14.
A jury convicted McIntosh on all counts.
1
On May 23,
2014, the District Court held the sentencing hearing. The
Government had not mentioned the forfeiture in its sentenc-
ing memorandum, and the District Court did not enter a pre-
liminary order of forfeiture prior to the hearing. At the
hearing, however, the Government stated that it was seeking
forfeiture for “$75,000 in a money judgment, as well as the
BMW.” Id., at 54. The Government offered to submit a
proposed order “within the next week.” Ibid. McIntosh
objected to the forfeiture. He argued that there was no
“dispositive” evidence connecting the BMW to any robbery
proceeds, insisting that a family member had purchased the
car. Id., at 54–55. It is not clear from the record whether
McIntosh's objection to the forfeiture was also based on the
absence of a preliminary order.
The District Court overruled McIntosh's objection to the
forfeiture based on the trial evidence that the Government
presented. As part of the sentence, the District Court im-
posed a forfeiture of “$75,000 and the BMW” as “fruits of the
crime[s],” and ordered the Government to “submit an order
1
The District Court subsequently directed a judgment of acquittal on
two counts of attempted robbery.

Page Proof Pending Publication
Cite
as: 601 U. S. 330 (2024)
335
Opinion of the Court
of forfeiture for signature by the Court within a week.” Id.,
at
62. The written judgment memorialized these instruc-
tions.
2
Notwithstanding the District Court's order, the
Government failed to submit a proposed order of forfeiture.
On appeal, the Government moved for a limited remand to
the District Court to “supplement the record by entering the
formal orde[r] of . . . forfeiture.” Id., at 68. The Govern-
ment conceded that McIntosh could then “contes[t] the time-
liness of [a formal forfeiture] order,” and the District Court
could “make whatever fndings it deem[ed] appropriate.”
Id., at 71. The Second Circuit granted the Government's
unopposed motion and remanded the case.
Back in the District Court, McIntosh objected to the Gov-
ernment's newly proposed order. McIntosh argued that the
District Court failed to comply with Rule 32.2(b)(2)(B) when
it did not enter a preliminary order prior to his original sen-
tencing, and thus it could not proceed with forfeiture at all.
In McIntosh's view, the delay prejudiced him because the
BMW lost value while the forfeiture issue was litigated,
which meant he would be credited less money against his
money judgment.
The District Court again overruled McIntosh's objections.
It concluded that Rule 32.2(b)(2)(B) is a time-related direc-
tive, rather than a jurisdictional deadline or a mandatory
claim-processing rule, and thus the court retained the power
to order forfeiture. The failure to comply with the time-
related directive, the court found, did not prejudice McIn-
tosh. Accordingly, the District Court entered the proposed
order of forfeiture and entered an amended judgment re-
fecting the order.
The Second Circuit affrmed in relevant part. Like the
District Court, the Court of Appeals concluded that Rule
32.2(b)(2)(B) is a “ `time-related directiv[e],' ” which does
2
The judgment instructed McIntosh to forfeit “$95,000” instead of
“$75,000,” App. 50, but the District Court later corrected this conceded
clerical error in the amended judgment.

336 M
cINTOSH v. UNITED STATES
Opinion of the Court
“ `not deprive a judge . . . of the power to take the action to
wh
ich the deadline applies if the deadline is missed.' ” 58 F.
4th 606, 609 (2023) (quoting Dolan v. United States, 560 U. S.
605, 611 (2010)). The Second Circuit also rejected McIn-
tosh's prejudice argument. In an accompanying summary
order, the Second Circuit vacated the judgment in part and
remanded for recalculation of the forfeiture amount because
the $75,000 fgure refected the total proceeds of the robber-
ies rather than the amount McIntosh personally received.
See 2023 WL 382945, *2 (Jan. 25, 2023).
McIntosh fled a petition for a writ of certiorari, alleging
a split among the Courts of Appeals on the consequences of
failing to adhere to Rule 32.2(b)'s requirements.
3
During
the second remand, while the petition was pending, the Dis-
trict Court entered an agreed-upon preliminary order of for-
feiture for $28,000 and the BMW. On September 20, 2023,
the District Court entered its fnal forfeiture order. Days
later, this Court granted McIntosh's petition limited to the
question “[w]hether a district court may enter a criminal for-
feiture order outside the time limitations set forth in Rule
32.2.” Pet. for Cert. i. See 600 U. S. ––– (2023).
II
Rule 32.2(b)(2)(B) provides: “Unless doing so is impracti-
cal, the court must enter the preliminary order [of forfeiture]
suffciently in advance of sentencing to allow the parties to
suggest revisions or modifcations before the order becomes
3
According to McIntosh's petition, the Eighth Circuit treats Ru le
32.2(b)'s deadline as jurisdictional, see United States v. Shakur, 691 F. 3d
979 (2012); the Sixth Circuit treats it as a mandatory claim-processing rule,
see United States v. Maddux, 37 F. 4th 1170 (2022); and the Fourth Circuit,
like the Second Circuit below, treats it as a time-related directive, see
United States v. Martin, 662 F. 3d 301 (2011). See Pet. for Cert. i; but
see United States v. Lee, 77 F. 4th 565, 577 (CA7 2023) (explaining that,
while it “appears at frst glance that there is confict . . . , a closer look
at the decisions suggests that there may be less difference than meets
the eye”).
Page Proof Pending Publication

Cite
as: 601 U. S. 330 (2024)
337
Opinion of the Court
fnal as to the defendant.” The order becomes fnal either
at
sentencing or before then if the defendant consents. See
Fed. Rule Crim. Proc. 32.2(b)(4)(A). It is undisputed that
the District Court did not comply with Rule 32.2(b)(2)(B)
when it failed to enter a preliminary order of forfeiture
before McIntosh's initial sentencing. Despite that error,
the District Court retained its power to order forfeiture
against McIntosh.
A
This Court has identifed three types of time limits: (1) ju-
risdictional deadlines; (2) mandatory claim-processing rules;
and (3) time-related directives. See Dolan, 560 U. S., at
610–611. Jurisdictional deadlines are rare. See United
States v. Kwai Fun Wong, 575 U. S. 402, 410 (2015) (“[M]ost
time bars are nonjurisdictional”). If the court misses a ju-
risdictional deadline, it is completely powerless to take any
relevant action, and the “parties cannot waive” the deadline.
Dolan, 560 U. S., at 610. Put differently, noncompliance
with a jurisdictional deadline cannot be excused. No one
contends that Rule 32.2(b)(2)(B) is jurisdictional because it
“does not expressly refer to subject-matter jurisdiction or
speak in jurisdictional terms.” Musacchio v. United States,
577 U. S. 237, 246 (2016). Instead, the parties' dispute re-
volves around the other two types of time limits.
Mandatory claim-processing rules “regulate the timing of
motions or claims brought before the court.” Dolan, 560
U. S., at 610. That is why, generally speaking, “fling dead-
lines” are the “ `quintessential claim-processing rules.' ” Seb-
elius v. Auburn Regional Medical Center, 568 U. S. 145, 154
(2013). If the affected party alerts the court to the deadline
and invokes its protection, the relevant action cannot be taken
after the deadline has passed. Unlike jurisdictional limits,
though, mandatory claim-processing rules are subject to
waiver and forfeiture by a litigant. Dolan, 560 U. S., at 610.
Time-related directives “see[k] speed” by directing “a
judge or other public offcial” to act by a certain time. Id.,
Page Proof Pending Publication

338 M
cINTOSH v. UNITED STATES
Opinion of the Court
at 611. Missing that kind of deadline does not deprive the
offcia
l of “the power to take the action to which the deadline
applies.” Ibid. Moreover, whereas noncompliance with a
mandatory claim-processing rule is presumed to be prejudi-
cial, Manrique v. United States, 581 U. S. 116, 125 (2017), the
failure to follow a time-related directive is, in this context,
subject to harmless-error principles on appellate review,
Fed. Rule Crim. Proc. 52(a).
McIntosh contends that Rule 32.2(b)(2)(B) is a mandatory
claim-processing rule, and thus the District Court could not
order forfeiture once McIntosh objected to the absence of a
preliminary order prior to his initial sentencing. The Gov-
ernment, on the other hand, argues that Rule 32.2(b)(2)(B) is
a fexible time-related directive, and thus the absence of a
preliminary order did not bar the District Court from order-
ing forfeiture at sentencing.
4
This Court agrees with the Second Circuit and the Gov-
ernment that Rule 32.2(b)(2)(B) establishes a time-related di-
rective. Accordingly, a district judge's failure to enter a
preliminary order prior to sentencing does not deprive a
judge of the power to order forfeiture.
B
In Dolan v. United States, this Court similarly addressed
the proper remedy for when a district court misses a dead-
line to take action related to criminal sentencing. That case
4
The parties disagree on whether McIntosh timely objected to the lack
of a preliminary order at the initial sentencing and whether he relin-
quished any objection by agreeing to the entry of the revised, now-
operative order of forfeiture during the second remand. The Government
argues that, if this Court agrees with McIntosh that Rule 32.2(b)(2)(B) is
a mandatory claim-processing rule, the case should be remanded to deter-
mine whether McIntosh forfeited such an objection “under the particular
circumstances of this case.” Brief for United States 17. Because this
Court, however, agrees with the Government's view of Rule 32.2(b)(2)(B),
a remand is not warranted.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 601 U. S. 330 (2024)
339
Opinion of the Court
involved a provision in the Mandatory Victims Restitution
A
ct of 1996, which states that,“[i]f the victim's losses are not
ascertainable by the date that is 10 days prior to sentencing,
. . . the court shall set a date for the fnal determination of
the victim's losses, not to exceed 90 days after sentencing.”
18 U. S. C. § 3664(d)(5). This Court noted that the statute
“ `d[id] not specify a consequence for noncompliance with' ”
the deadline. Dolan, 560 U. S., at 611 (quoting United
States v. James Daniel Good Real Property, 510 U. S. 43, 63
(1993)). It then held that the provision was a time-related
directive, such that, if “a sentencing court misses the stat-
ute's 90-day deadline, even through its own fault or that
of the Government,” the sentencing court retains “the
power to order restitution” in that circumstance. 560 U. S.,
at 611.
Dolan was just the latest in a line of cases recognizing that
certain deadlines, if missed, do not deprive a public offcial
of the power to take the action to which the deadline applies.
See, e.g., Barnhart v. Peabody Coal Co., 537 U. S. 149, 171–
172 (2003) (missed deadline for assigning industry retiree
benefts did not prevent later award of benefts); Regions
Hospital v. Shalala, 522 U. S. 448, 459, n. 3 (1998) (missed
deadline to submit agency report did not deprive offcial of
“power to act beyond it”); James Daniel Good, 510 U. S., at
63–65 (missed deadline for civil-forfeiture proceedings did
not prevent federal offcers from seeking forfeiture of prop-
erty used to commit a federal drug offense); United States
v. Montalvo-Murillo, 495 U. S. 711, 717–718 (1990) (missed
deadline to hold bail hearing did not require the release of
pretrial detainee); Brock v. Pierce County, 476 U. S. 253, 266
(1986) (missed deadline to determine misuse of federal grant
funds did not “divest [public offcial] of jurisdiction to act
after that time”).
Each of these cases involved timing provisions that did not
specify a consequence for the public offcials' noncompliance

340 M
cINTOSH v. UNITED STATES
Opinion of the Court
with the prescribed deadlines. Those provisions are exam-
ples
of “ `requisitions intended for the guide of offcers in the
conduct of business devolved upon them [that] do not limit
their power or render its exercise in disregard of the requisi-
tions ineffectual.' ” James Daniel Good, 510 U. S., at 63
(quoting French v. Edwards, 13 Wall. 506, 511 (1872)). In
such circumstances, “courts will not in the ordinary course
impose their own coercive sanction,” 510 U. S., at 63, nor typ-
ically attribute “intent to limit an [offcial's] power to get a
mandatory job done merely from a specifcation to act by a
certain time,” Barnhart, 537 U. S., at 160.
C
In this Court's taxonomy of time limits, Rule 32.2(b)(2)(B)
is best understood as a time-related directive. It functions
“as a spur to prompt action, not as a bar to tardy completion
of . . . business.” Id., at 172. Several features of the Rule
guide this Court's analysis.
First, far from imposing “rigid” constraints characteristic
of mandatory claim-processing rules, the plain language of
the Rule contemplates fexibility regarding the timing of a
preliminary order's entry. Eberhart v. United States, 546
U. S. 12, 13 (2005) (per curiam). It requires that a prelimi-
nary order of forfeiture be entered before sentencing, “[u]n-
less doing so is impractical.” Rule 32.2(b)(2)(B). As such,
the Rule anticipates that, in some circumstances, it may be
“impractical” to enter a preliminary order of forfeiture be-
fore sentencing. Similarly, the Rule contains the indetermi-
nate command that a preliminary order be entered “suff-
ciently in advance of sentencing to allow the parties to
suggest revisions or modifcations before the order becomes
fnal as to the defendant.” Ibid. (emphasis added). Of
course, what is suffcient in one case may not be in another.
Both the impracticality exception and the suffciently-in-
advance condition take the Rule further away from the cate-
Page Proof Pending Publication

Cite
as: 601 U. S. 330 (2024)
341
Opinion of the Court
gory of “rigid” and “ `infexible claim-processing rule[s].' ”
Ebe
rhart, 546 U. S., at 13.
5
Second, Rule 32.2(b)(2)(B) “ `does not specify a conse-
quence for noncompliance with its timing provisions.' ” 58
F. 4th, at 610 (quoting Dolan, 560 U. S., at 611). In the ab-
sence of such specifcation, courts “will not in the ordinary
course impose their own coercive sanction” for noncompli-
ance with a timing directive. James Daniel Good, 510 U. S.,
at 63. Indeed, it would be especially strange to prohibit a
sentencing court from ordering forfeiture for not complying
with Rule 32.2(b)(2)(B) where other parts of Rule 32.2 spec-
ify that consequence for noncompliance. Rule 32.2(a), for
example, provides that the Government's failure to include a
forfeiture allegation in the indictment means that the “court
must not enter a judgment of forfeiture.” The use of “ `ex-
plicit language' ” specifying a sanction in Rule 32.2(a) but not
in Rule 32.2(b)(2)(B) “ `cautions against inferring ' the same
limitation” in Rule 32.2(b)(2)(B). State Farm Fire & Cas-
ualty Co. v. United States ex rel. Rigsby, 580 U. S. 26, 34
(2016).
Third, “Rule 32.2(b)(2)(B) governs the conduct of the dis-
trict court, not the litigants.” 58 F. 4th, at 611. Recall that
time-related directives typically spur public offcials to act
within a specifed time. Mandatory claim-processing rules,
by contrast, ordinarily “requir[e] that the parties take cer-
tain procedural steps at certain specifed times.” Hender-
son v. Shinseki, 562 U. S. 428, 435 (2011) (emphasis added).
5
Because the District Court ordered the forfeiture at McIntosh's initial
sentencing, this case does not implicate Rule 32.2(b)(4)(B)'s requirement
that forfeiture be imposed at sentencing. Cf. Lee, 77 F. 4th, at 582–583
(explaining that, although “the requirement of a preliminary order is a
time-related directive, . . . [t]he requirement that [a fnal order] must be
included in the oral judgment of the court has the character of a claims-
processing rule”); Tr. of Oral Arg. 34–36 (Government counsel stating that
the requirements relating to the fnal order's entry raise “a harder set of
issues” for the Government, which are not implicated in this case).
Page Proof Pending Publication

342 M
cINTOSH v. UNITED STATES
Opinion of the Court
That distinction holds even in the examples that McIntosh
identi
fed of claim-processing rules addressed to courts.
Take Santos-Zacaria v. Garland, 598 U. S. 411 (2023), and
Gonzalez v. Thaler, 565 U. S. 134 (2012), for example. See
Brief for Petitioner 34–35; Tr. of Oral Arg. 13. The claim-
processing rules in those cases conditioned the court's au-
thority to act on the parties' adherence to a certain proce-
dure, and not on the court's compliance with a deadline. See
Santos-Zacaria, 598 U. S., at 416 (analyzing provision stating
that “ `[a] court may review a fnal order of removal only if
. . . the alien has exhausted all administrative remedies avail-
able to the alien as of right' ”); Gonzalez, 565 U. S., at 140
(analyzing provision stating that a court of appeals “ `may
issue' ” a certifcate of appealability “ `only if the applicant
has made a substantial showing of the denial of a constitu-
tional right' ”). McIntosh has not identifed a mandatory
claim-processing rule that is analogous to Rule 32.2(b)(2)(B).
In sum, Rule 32.2(b)(2)(B) is a time-related directive that,
if missed, does not deprive the judge of her power to order
forfeiture against the defendant.
III
McIntosh's arguments to the contrary are unpersuasive.
He frst points to Rule 32.2(b)(2)(B)'s use of the word “must”
to highlight its mandatory character. Yet this kind of man-
datory language standing “alone has not always led this
Court to interpret statutes to bar judges (or other offcials)
from taking action to which a missed statutory deadline
refers.” Dolan, 560 U. S., at 611–612; see also id., at 607–
608 (concluding that statute providing that a sentencing
court “ `shall set a date' ” within a specifed time period to
determine restitution amount was a time-related directive);
Barnhart, 537 U. S., at 152 (“ `shall' . . . assign”); Regions
Hospital, 522 U. S., at 459, n. 3 (“ `shall report' ”); Montalvo-
Murillo, 495 U. S., at 717 (“ `shall hold a hearing ' ”); Brock,
476 U. S., at 256 (“ `shall' determine”). Additionally, Rule
Page Proof Pending Publication

Cite
as: 601 U. S. 330 (2024)
343
Opinion of the Court
32.2(b)(2)(B)'s use of “must” has to be construed in context
to
determine whether its time limit is a mandatory claim-
processing rule or a time-related directive. That context, as
discussed above, demonstrates that the Rule contemplates
some fexibility by specifying that the preliminary order be
entered “suffciently in advance of sentencing,” “[u]nless
doing so is impractical.” Rule 32.2(b)(2)(B); see supra,
at 340–341.
McIntosh also argues that it “makes sense” to classify
Rule 32.2(b)(2)(B) as a mandatory claim-processing rule be-
cause Rule 32.2 requires the Government to take specifc
steps “to move the criminal forfeiture process forward.”
Brief for Petitioner 11. For example, the Government must
provide notice in the indictment that it “will seek the forfeit-
ure of property as part of any sentence,” “establis[h] the req-
uisite nexus between the property and the offense,” and
“publish . . . and send notice” of the forfeiture order to poten-
tial claimants. Fed. Rules Crim. Proc. 32.2(a), (b)(1)(A),
(b)(6)(A). Although McIntosh is correct that the Govern-
ment plays an indispensable role in the criminal forfeiture
process, Rule 32.2(b)(2)(B) is directed exclusively to the sen-
tencing court. It does not even mention the Government.
That the instruction to the court may in turn push the Gov-
ernment to take certain steps as a practical matter does not
change the Rule's addressee.
6
6
The Government explains that the Department of Justice instructs its
prosecutors to recommend a preliminary order of forfeiture prior to sen-
tencing to assist judges at sentencing. See Brief for United States 26
(citing Dept. of Justice, Money Laundering and Asset Recovery Section,
Asset Forfeiture Policy Manual 5–22 (2023)). Here, in circumstances that
this Court expects are a rare occurrence, the Government admits that
McIntosh's prosecutors failed to adhere to this guidance multiple times
over. The prosecutors failed to: (1) remind the court of its Rule 32.2(b)
(2)(B) obligation; (2) prepare a proposed preliminary order prior to sen-
tencing; (3) comply with the District Court's instruction at sentencing to
submit a proposed order of forfeiture within a week from the hearing; and
(4) comply with the District Court's instruction in the judgment to submit
Page Proof Pending Publication

344 M
cINTOSH v. UNITED STATES
Opinion of the Court
McIntosh further contends that an affrmance here would
depr
ive Rule 32.2(b)(2)(B) of any effect such that it “might
as well not exist.” Brief for Petitioner 3. Not so. In most
cases, a timely objection required to preserve a claim of error
likely will prompt the district court to enter the preliminary
order and, if appropriate, postpone sentencing. As counsel
for McIntosh conceded at argument, defendants receive the
beneft of the Rule in that situation. See Tr. of Oral Arg.
11–12. If a timely objection is raised and no preliminary
order is entered, at the very least, the violation of Rule
32.2(b)(2)(B) would be reviewed for harmlessness. See Fed.
Rule Crim. Proc. 52(a); see also United States v. Lee, 77
F. 4th 565, 583 (CA7 2023) (reviewing a Rule 32.2(b)(2)(B)
violation for harmless error); United States v. Farias, 836
F. 3d 1315, 1330 (CA11 2016) (same).
Finally, McIntosh falls back on the general purpose of Rule
32.2, which he describes as “ensur[ing] criminal defendants
receive due process before their property is permanently
taken by the government” and “promot[ing] judicial econ-
omy.” Brief for Petitioner 11. That is all true. McIntosh
does not explain, though, how it promotes judicial economy
to treat Rule 32.2(b)(2)(B) as an infexible claim-processing
rule. If anything, judicial economy is better served by
allowing courts some fexibility to ensure the accuracy and
completeness of the fnal forfeiture order and address an in-
advertent failure to enter a preliminary order in advance of
sentencing. Because McIntosh has not shown that reading
the requirement as a time-related directive would frustrate
signifcantly Rule 32.2's effectiveness, McIntosh's invocation
of purpose falls fat.
IV
Noncompliance with Rule 32.2(b)(2)(B)'s timing require-
ment is a procedural error subject to harmlessness review.
a written order within one week of issuance of the judgment. Notwith-
standing these failures, Rule 32.2(b)(2)(B)'s plain terms require a district
court, and not the prosecutors, to enter a preliminary order.
Page Proof Pending Publication

Cite
as: 601 U. S. 330 (2024)
345
Opinion of the Court
Here, the Second Circuit agreed with the District Court that
McIntosh
failed to show “prejudice suffcient to void the for-
feiture order.” 58 F. 4th, at 611. Both courts noted McIn-
tosh knew from the time of his indictment in 2011 and from
the pretrial bill of particulars that the Government sought
forfeiture. Both courts also rejected the argument that the
absence of a timely preliminary order prejudiced McIntosh
by causing the BMW to lose value. They explained that Mc-
Intosh “could have sought an interlocutory sale of the car if
he had wished to preserve its value” and could have done so
without a preliminary order. Ibid.
McIntosh did not challenge the lower courts' harmlessness
analysis in either his certiorari petition or his opening brief,
so this Court need not revisit it.
***
Because Rule 32.2(b)(2)(B) is a time-related directive that,
if missed, does not deprive a district court of its power to
order forfeiture, the judgment of the Court of Appeals for
the Second Circuit is
Affrmed.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None