                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4738


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS BRANTLEY JENKINS, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cr-00053-CCE-3)


Submitted:   January 27, 2017             Decided:   February 3, 2017


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids,
Michigan, for Appellant.   Ripley Rand, United States Attorney,
Clifton   T.   Barrett,   Assistant   United  States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Thomas Brantley Jenkins II, pled guilty to conspiracy to

manufacture        methamphetamine,           in    violation       of   21       U.S.C.   § 846

(2012).        The district court sentenced Jenkins to 150 months’

imprisonment and ordered him to forfeit numerous items and $1536

in currency.        In accordance with Anders v. California, 386 U.S.

738 (1967), Jenkins’ counsel filed a brief certifying that there

are no meritorious grounds for appeal but questioning whether

Jenkins’      sentence        is     reasonable. 1          We    directed        supplemental

briefing      on   the       issue    of    whether       the    district     court    plainly

erred    in    ordering        forfeiture          when    the    Government        failed   to

include a forfeiture allegation in the superseding indictment.

We now affirm in part, vacate in part, and remand for further

proceedings.

                                               I.

     We       review     a     defendant’s         sentence       “under      a    deferential

abuse-of-discretion standard.”                     Gall v. United States, 552 U.S.

38, 41 (2007).           Under this standard, a sentence is reviewed for

both procedural and substantive reasonableness.                             Id. at 51.       In

determining procedural reasonableness, we consider whether the

district       court     properly          calculated      the     defendant’s        advisory

     1 Counsel who filed the Anders brief subsequently moved to
withdraw, which we granted.    We then appointed new counsel to
represent Jenkins in this appeal.



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Sentencing Guidelines range, gave the parties an opportunity to

argue   for   an   appropriate        sentence,       considered         the    18    U.S.C.

§ 3553(a)     (2012)       factors,      and        sufficiently         explained          the

selected sentence.            Id. at 49-51.           If a sentence is free of

“significant       procedural         error,”        then     we       review        it     for

substantive reasonableness, “tak[ing] into account the totality

of the circumstances.”            Id. at 51.

      Counsel      first       questions        whether       the       district          court

adequately explained its chosen sentence, contending that the

court did not place enough weight on Jenkins’ arguments for a

variant sentence and placed undue weight on the seriousness of

the offense.       In evaluating a sentencing court’s explanation of

a selected sentence, we consistently have held that, although

the   district     court      must    consider       the     statutory       factors       and

explain the sentence, “it need not robotically tick through the

§ 3553(a) factors.”           United States v. Helton, 782 F.3d 148, 153

(4th Cir. 2015) (internal quotation marks omitted).                            At the same

time, the district court “must make an individualized assessment

based on the facts presented.”              Gall, 552 U.S. at 50.                While the

“individualized          assessment         need       not        be     elaborate           or

lengthy, . . .      it     must    provide      a    rationale         tailored      to     the

particular      case     at    hand   and    adequate        to     permit      meaningful

appellate review.”            United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009) (internal quotation marks omitted).                             While the

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district     court       did    not     cite     all       of    the    § 3553(a)         factors

explicitly,       its     explanation       of       the    sentence         shows     that    it

considered       the     factors      and   applied         to    them       to     the   unique

circumstances      of        Jenkins’     case.        Accordingly,           we    discern    no

procedural error.

       Counsel     next        questions        whether          Jenkins’         sentence     is

substantively reasonable.               “Any sentence that is within or below

a   properly       calculated           Guidelines          range       is        presumptively

reasonable.”       United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.    2014).          We     conclude     that      Jenkins’         argument       fails    to

overcome the presumption of reasonableness accorded the sentence

imposed by the district court.                      Accordingly, Jenkins’ 150-month

sentence of imprisonment is reasonable.

                                               II.

       Turning to the district court’s forfeiture order, Jenkins

failed to object to the court’s order; thus, we review the order

for plain error.             United States v. Moore, 810 F.3d 932, 939 (4th

Cir. 2016).       “[W]e may reverse only on a finding that (1) there

was error, (2) that was plain, (3) that affected substantial

rights, and (4) that seriously affected the fairness, integrity,

or public reputation of judicial proceedings.”                           Id. (alterations

and internal quotation marks omitted).

       Federal     Rule        of   Criminal         Procedure         32.2        governs    the

procedure by which a district court orders forfeiture.                                 “A court

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must not enter a judgment of forfeiture in a criminal proceeding

unless the indictment . . . contains notice to the defendant

that the government will seek the forfeiture of property as part

of   any        sentence   in   accordance        with    the    applicable   statute.”

Fed.       R.    Crim.     P.   32.2(a);      see    21    U.S.C.      § 853(a)    (2012)

(authorizing forfeiture).               Here, the superseding indictment did

not contain a forfeiture allegation.                       The district court also

failed      to     enter    a   preliminary       order    of    forfeiture    prior   to

Jenkins’ sentencing hearing, as required by Fed. R. Crim. P.

32.2(b)(2).          Because “these procedures are mandatory,” United

States      v.     Marquez,     685    F.3d   501,       509    (5th   Cir.   2012),   we

conclude that these errors are plain.

       Turning to whether the errors affect Jenkins’ substantial

rights, the district court’s judgment stated:

       The defendant shall forfeit the defendant’s interest
       in the following property to the United States:
       $1,536.00   shall  be   applied  to  the  restitution,
       remainder shall go to [Jenkins’ sister], [R]uger to be
       destroyed, remaining firearms to be returned to
       rightful owner, remaining items to be destroyed at the
       end of the appeal period.

(J.A. 125). 2         Although not clear from the present record, the

Government         represents     on    appeal      that       these   remaining    items

included “a letter, three BB guns, a pill bottle containing a

green leafy material, a Wells Fargo new account opening kit, an


       2   “J.A.” refers to the Joint Appendix filed by the parties.



                                              5
improvised       shaking      device      (Sawzall),      690    rounds       of    assorted

ammunition,       twelve       firearm      magazines/ammo            can,      and       video

surveillance equipment.”            (Appellee’s Br. at 4 n.1).

     Some of these items included “property associated with the

planning,    implementing,          or    concealing      of    a     crime.”       Luis     v.

United    States,       136    S.   Ct.     1083,      1090     (2016)    (“[T]itle         to

property used to commit a crime (or otherwise traceable to a

crime) often passes to the Government at the instant the crime

is planned or committed.” (internal quotation marks omitted)).

However, not all of the items were necessarily tainted assets.

Jenkins represented that his sister loaned him the currency,

which would not constitute proceeds of his crime.                                  While the

Government represents that many of the items were contraband or

used in the commission of the offense, its failure to properly

allege forfeiture deprived Jenkins of his ability to demonstrate

that they were not.           See Fed. R. Crim. P. 32.2(b)(1).

     We     conclude       that     Jenkins’         substantial       rights       are     not

affected    by    the    forfeiture        of    a    pill    bottle     that      contained

marijuana,       as   Jenkins       was    not       entitled    to    have     contraband

returned to him.           See United States v. Vanhorn, 296 F.3d 713,

718-19 (8th Cir. 2002).                We further conclude that Jenkins has

waived review of the forfeiture of the Ruger, as he disclaimed

ownership of that firearm during the sentencing hearing.                                    See

United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014).

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However,    as   to    the    remainder      of    the    items   included    in   the

district   court’s      forfeiture     order,       we    conclude   that    Jenkins’

substantial rights are affected and that this error affects the

fairness    of   the   proceedings,       as      the    Government’s   failure     to

allege forfeiture and the district court’s failure to enter a

preliminary order of forfeiture raise due process concerns.                        See

United States v. Shakur, 691 F.3d 979, 988-89 (8th Cir. 2012).

                                        III.

      In   accordance        with   Anders,    we   have    reviewed    the    entire

record in this case and have found no other meritorious grounds

for   appeal.         Accordingly,      we     affirm      the    district    court’s

judgment, except for a portion of the forfeiture order contained

therein.    Specifically, we affirm in part the district court’s

forfeiture order, as it relates to the Ruger and the pill bottle

containing marijuana, but we vacate the forfeiture order in all

other respects and remand this case for further proceedings not

inconsistent with Fed. R. Crim. P.32.2.                    We also deny Jenkins’

motion for leave to file a pro se supplemental brief. 3




      3Jenkins initially declined to file a pro se supplemental
brief and fails to offer any reason why he did not do so when
initially given the opportunity.   Thus, because his motion was
filed after we ordered the parties to file merits briefs, we
deny Jenkins’ motion.    See United States v. Penniegraft, 641
F.3d 566, 569 n.1 (4th Cir. 2011).



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     This    court      requires       that   counsel     inform     Jenkins,     in

writing,    of    the   right     to   petition   the    Supreme    Court    of   the

United States for further review.                 If Jenkins requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                   Counsel’s motion must

state that a copy thereof was served on Jenkins.                         We dispense

with oral argument because the facts and legal contentions are

adequately       presented   in    the   materials      before    this    court   and

argument would not aid the decisional process.

                                                                 AFFIRMED IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




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