                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                             No. 18-10070
                 Plaintiff-Appellee,
                                                         D.C. No.
                       v.                             4:16-cr-00478-
                                                       JGZ-LAB-19
 JESSICA BRIDGET SOTO,
               Defendant-Appellant.                      OPINION



          Appeal from the United States District Court
                   for the District of Arizona
          Jennifer G. Zipps, District Judge, Presiding

                  Submitted December 17, 2018 *
                    San Francisco, California

                       Filed February 8, 2019

         Before: Ronald Lee Gilman, ** Richard A. Paez,
               and John B. Owens, Circuit Judges.

                     Opinion by Judge Gilman

    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
    **
        The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2                    UNITED STATES V. SOTO

                          SUMMARY ***


                          Criminal Law

    The panel affirmed the district court’s forfeiture order in
a case in which the defendant pleaded guilty to one count of
attempting to export ammunition from the United States, in
violation of 18 U.S.C. § 554, and one count of conspiracy to
export firearms and ammunition, in violation of 18 U.S.C.
§ 371.

    The panel rejected the defendant’s argument that
forfeiture is unavailable in this case because §§ 371 and
554(a) are not expressly mentioned in the federal forfeiture
statute. The panel held that the district court did not err in
ordering forfeiture because 18 U.S.C. § 924(d)(1) authorizes
forfeiture of firearms and ammunition involved in a federal
crime.

   The panel held that, under 21 U.S.C. § 853(p), the district
court did not err in ordering the forfeiture of substitute
property up to the value of ammunition that the defendant
had transferred to a coconspirator.

    The panel held that because the defendant did not
challenge the adequacy of the notice of forfeiture in the
indictment before the district court or in her opening brief,
the challenge (first raised in her reply brief) is not
reviewable. The panel wrote that even if the adequacy of the



    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. SOTO                     3

notice were reviewable, the district court did not commit
plain error regarding the adequacy of the notice.


                        COUNSEL

A. Bates Butler III, Tucson, Arizona, for Defendant-
Appellant.

Robert L. Miskell, Chief, Appellate Section; Elizabeth A.
Strange, First Assistant United States Attorney; United
States Attorney’s Office, Tucson, Arizona; for Plaintiff-
Appellee.


                         OPINION

GILMAN, Circuit Judge:

    Jessica Bridget Soto, along with 20 other defendants,
was indicted for crimes relating to a conspiracy to illegally
export firearms and ammunition from the United States to
Mexico. She pleaded guilty to one count of attempting to
export ammunition from the United States and to one count
of conspiracy to export firearms and ammunition. Soto
argues that the district court’s forfeiture order was improper
because the crimes for which she was convicted do not
authorize forfeiture. She also contends that the notice of
forfeiture in the indictment was inadequate because it cited
an inapplicable statutory provision. For the reasons set forth
below, we AFFIRM the district court’s forfeiture order.
4                 UNITED STATES V. SOTO

                   I.   BACKGROUND

A. Factual background

    A joint investigation by the Bureau of Alcohol, Tobacco,
Firearms and Explosives and Homeland Security
Investigations uncovered a conspiracy in which the
participants purchased firearms and ammunition in the
United States and illegally smuggled those items into
Mexico. The investigation determined that the conspiracy
involved at least 70 firearms and approximately 74,880
rounds of ammunition.

    Soto purchased and transported ammunition on at least
two occasions. In December 2015, she purchased 28,500
rounds of ammunition in Phoenix, Arizona. She then
transported the ammunition to the United States-Mexico
border and provided it to a coconspirator. In January 2016,
she purchased 26,000 more rounds of ammunition in
Phoenix. Agents arrested Soto while she was transporting
this second purchase of ammunition south towards the
border.

B. Procedural background

     Soto was charged with two counts of attempting to
export ammunition from the United States, in violation of
18 U.S.C. § 554, and one count of conspiracy to export
firearms and ammunition, in violation of 18 U.S.C. § 371.
The indictment charged that, upon conviction, the firearms
and ammunition involved in the offenses would be forfeited.
If the firearms and ammunition could not be located or had
been transferred to a third party, the indictment charged that
the government would seek forfeiture of other property
worth no more than the value of the firearms and
ammunition in question.
                   UNITED STATES V. SOTO                      5

    Soto pleaded guilty to one of the attempted-exportation
counts and to the conspiracy count, with the government
agreeing to dismiss the other attempted-exportation count.
The district court then sentenced Soto to four years’
probation and imposed a special assessment of $200. It also
ordered the forfeiture of the firearms and ammunition that
the government seized. Because Soto had previously
transferred the 28,500 rounds of ammunition purchased in
December 2015, with a value of $7,123, the court authorized
the government to seize substitute property belonging to
Soto worth up to that amount. Soto did not object to the
forfeiture order at sentencing.

    After Soto filed her notice of appeal, she filed a motion
to correct what she claimed to be a clear error at sentencing
under Rule 35(a) of the Federal Rules of Criminal Procedure.
That error, according to Soto, is the absence of any statutory
authority for forfeiture in this case. The district court denied
Soto’s Rule 35(a) motion.

                      II.   ANALYSIS

A. Standard of review

    This court usually reviews de novo a district court’s
interpretation of federal forfeiture law. United States v.
$493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir.
2008). But here, Soto did not object to the final order of
forfeiture at sentencing. She instead first objected to the
forfeiture order in a motion filed under Rule 35(a) of the
Federal Rules of Criminal Procedure after she had already
filed her notice of appeal. Nor did Soto appeal the district
court’s denial of her Rule 35(a) motion. That motion is
therefore not part of this appeal. Accordingly, we review the
district court’s forfeiture order under the plain-error
6                  UNITED STATES V. SOTO

standard. See United States v. Yijun Zhou, 838 F.3d 1007,
1010 (9th Cir. 2016).

B. The district court did not err in ordering forfeiture
   because 18 U.S.C. § 924(d)(1) authorizes forfeiture of
   firearms and ammunition involved in a federal crime.

    Soto argues that criminal forfeiture is available only if a
federal forfeiture statute expressly references the criminal
statute under which a defendant is convicted. Because Soto
was convicted of violating 18 U.S.C. §§ 371 and 554(a), and
these statutes are not expressly mentioned in any federal
forfeiture statute, she argues that forfeiture is unavailable in
this case.

    Soto’s argument fails because she overlooks 18 U.S.C.
§ 924(d)(1), which provides that “[a]ny firearm or
ammunition involved in or used in any . . . violation of any
other criminal law of the United States . . . shall be subject
to seizure and forfeiture . . . .” Congress did not define the
word “involved” in the statute, but the Supreme Court held
in Smith v. United States, 508 U.S. 223 (1993), that the term
should be defined broadly:

       Examination of the offenses to which the
       “involved in” language applies reveals why
       Congress believed it necessary to include
       such an expansive term. One of the listed
       offenses, violation of § 922(a)(6), is the
       making of a false statement material to the
       lawfulness of a gun’s transfer. Because
       making a material misstatement in order to
       acquire or sell a gun is not “use” of the gun
       even under the broadest definition of the
       word “use,” Congress carefully expanded the
       statutory language. As a result, a gun with
                   UNITED STATES V. SOTO                         7

        respect to which a material misstatement is
        made is subject to forfeiture because, even
        though the gun is not “used” in the offense, it
        is “involved in” it.

Id. at 235.

    The Third Circuit in United States v. Cheeseman,
600 F.3d 270 (3d Cir. 2010), defined the plain meaning of
the phrase “involved in” by quoting Merriam-Webster’s
dictionary as follows: “(1) ‘to engage as a participant’;
(2) ‘to relate closely’; (3) ‘to have within or as part of itself’;
and (4) ‘to require as a necessary accompaniment.’” Id. at
278 (quoting Merriam-Webster’s Collegiate Dictionary 660
(11th ed. 2003)). In that case, the defendant pleaded “guilty
to violating 18 U.S.C. § 922(g)(3), which criminalizes
possession of firearms and ammunition by an unlawful user
or addict of a controlled substance.” Id. at 272. The
defendant argued on appeal that the district court’s
authorization of the forfeiture of firearms and ammunition
pursuant to § 924(d)(1) violated that statute because the
firearms and ammunition were not “involved in” the crime.
Id.

    The Third Circuit disagreed. It held that the firearms and
ammunition were “involved in” the crime because “without
the firearms, there would have been no crime.” Id. at 278.
Referring to Merriam-Webster’s definition, the court held
that the firearms were “related closely to and were a
necessary accompaniment to the crime charged.” Id.
Similarly, in Soto’s case, the firearms and ammunition were
involved in the crimes of attempting to export ammunition
and conspiracy to export firearms and ammunition because,
without the firearms and ammunition, there would have been
no crime.
8                  UNITED STATES V. SOTO

    The forfeiture order is also authorized by the following
clause of 18 U.S.C. § 924(d)(1): “[A]ny firearm or
ammunition intended to be used in any offense referred to in
paragraph (3) of this subsection, where such intent is
demonstrated by clear and convincing evidence, shall be
subject to seizure and forfeiture . . . .” The offenses listed in
paragraph (3) include “any offense which may be prosecuted
in a court of the United States which involves the exportation
of firearms or ammunition.” 18 U.S.C. § 924(d)(3)(F).
Soto’s offenses of conviction involve the exportation of
firearms and ammunition, so the district court’s forfeiture
order is also authorized by § 924(d)(1) and (d)(3)(F).

    Section 924(d)(1) authorizes forfeiture “as a remedial
civil sanction rather than a criminal punishment.” United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 364
(1984). But 28 U.S.C. § 2461(c) “permits the government
to seek criminal forfeiture whenever civil forfeiture is
available and the defendant is found guilty of the offense.”
United States v. Pollard, 850 F.3d 1038, 1041 (9th Cir.
2017) (emphasis in original) (quoting United States v.
Newman, 659 F.3d 1235, 1239 (9th Cir. 2011)). In other
words, § 2461(c) “make[s] criminal forfeiture available in
every case that the criminal forfeiture statute does not reach
but for which civil forfeiture is legally authorized.” Id.
(alteration in original) (quoting Newman, 659 F.3d at 1239).
Civil forfeiture in Soto’s case is authorized by § 924(d)(1),
as discussed above, so criminal forfeiture is available
pursuant to § 2461(c).

C. The district court did not err in ordering the
   forfeiture of substitute property.

    The forfeiture of substitute assets for the ammunition
that Soto transferred to a coconspirator is authorized by
21 U.S.C. § 853(p). Section 2461(c)—the statute that
                  UNITED STATES V. SOTO                    9

authorizes criminal forfeiture whenever civil forfeiture is
available—provides that the procedures in § 853, with the
exception of § 853(d) (which is not applicable in this case),
“apply to all stages of a criminal forfeiture proceeding.”
28 U.S.C. § 2461(c). And § 853(p) provides as follows:

       (p) Forfeiture of substitute property

           (1) In general

           Paragraph (2) of this subsection shall
           apply, if any property described in
           subsection (a), as a result of any act or
           omission of the defendant—

               (A) cannot be located upon the
               exercise of due diligence;

               (B) has been transferred or sold to, or
               deposited with, a third party;

               (C) has been placed beyond the
               jurisdiction of the court;

               (D) has been substantially diminished
               in value; or

               (E) has been commingled with other
               property which cannot be divided
               without difficulty.

           (2) Substitute property

           In any case described in any of
           subparagraphs (A) through (E) of
10                UNITED STATES V. SOTO

           paragraph (1), the court shall order the
           forfeiture of any other property of the
           defendant, up to the value of any property
           described in subparagraphs (A) through
           (E) of paragraph (1), as applicable.

21 U.S.C. § 853(p).

    Section 853(p) is a procedural provision, so § 2461(c)
makes it applicable here. See Honeycutt v. United States,
137 S. Ct. 1626, 1634 (2017) (“Congress provided just one
way for the Government to recoup substitute property when
the tainted property itself is unavailable—the procedures
outlined in § 853(p).”); United States v. Lo, 839 F.3d 777,
790 (9th Cir. 2016) (“Section 853(p) provides a procedure
for the forfeiture of substitute property . . . .”). The
requirements of § 853(p) were met in this case because Soto
had ammunition that was subject to forfeiture and she
transferred that ammunition to a coconspirator.
Accordingly, the district court committed no error, much less
plain error, in ordering the forfeiture of substitute property
up to the value of the ammunition that was transferred.

    This court recently addressed a similar issue in United
States v. Valdez, 911 F.3d 960 (9th Cir. 2018). Like Soto,
the defendant in Valdez pleaded guilty to attempted
smuggling of ammunition from the United States into
Mexico, in violation of 18 U.S.C. § 554(a). Id. at 962. The
district court entered a final order of forfeiture against the
defendant for substitute property in lieu of the ammunition.
Id. Valdez challenged the forfeiture order on appeal, arguing
that “[28 U.S.C.] § 2461(c) does not apply to civil forfeitures
under [28 U.S.C.] § 924(d) because § 924(d) does not use
the word ‘property,’” id. at 964, and because § 2461(c) limits
courts to ordering “the forfeiture of the property.”
                  UNITED STATES V. SOTO                     11

    We rejected Valdez’s argument and held that “[s]ection
924(d) indisputably authorizes the civil forfeiture of firearms
and ammunition, which simply are specific types of
property.” Id. Ultimately, we held that “[s]ection 924(d)
describes the forfeitable property, and § 2461(c) authorizes
the use of the procedures of § 853 with respect to the
forfeitable property.” Id. at 967 (emphasis in original).
Although that holding is relevant to the present case, Soto
and Valdez raised different arguments on appeal. This has
required us to consider Soto’s contention that criminal
forfeiture is available only if a federal forfeiture statute
expressly references the criminal statute under which a
defendant is convicted.

D. Soto’s challenge to the adequacy of the notice of
   forfeiture in the indictment is not reviewable, but
   even if it were, the notice was adequate.

    Soto also challenges the adequacy of the notice of
forfeiture set forth in the indictment. For Soto’s offenses,
the indictment states that the government would seek
forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and
28 U.S.C. § 2461(c). Section 981 sets forth when civil
forfeiture is available and, as explained above, § 2461(c)
authorizes criminal forfeiture whenever civil forfeiture is
available.

     Soto correctly argues that § 981 is not applicable in this
case because the crimes listed in that statute do not include
the offenses for which she was convicted. But this challenge
first appears in her reply brief. Because Soto did not
challenge the adequacy of the notice of forfeiture in the
indictment before the district court or in her opening brief,
the challenge is not reviewable. See Greenwood v. F.A.A.,
28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
12                UNITED STATES V. SOTO

which are argued specifically and distinctly in a party’s
opening brief.”).

    And even if we were to review Soto’s challenge that the
indictment lacked adequate notice of forfeiture, we would do
so under the plain-error standard because Soto did not raise
this argument before the district court. Rule 32.2(a) of the
Federal Rules of Criminal Procedure prevents a district court
from ordering criminal forfeiture unless the indictment
includes notice that the government will seek forfeiture “as
part of any sentence in accordance with the applicable
statute.” Other courts have held that the notice requirement
of Rule 32.2(a) is met even if the indictment contains a
forfeiture allegation that cites the wrong statute. See, e.g.,
United States v. Silvious, 512 F.3d 364, 369–70 (7th Cir.
2008) (“Listing the wrong forfeiture statute did not prevent
Silvious from receiving notice under Rule 32.2(a).”).

    Here, the indictment informed Soto that the government
intended to seek forfeiture. And the preliminary and final
forfeiture orders correctly cited 18 U.S.C. § 924(d),
28 U.S.C. § 2461(c), and 21 U.S.C. § 853(p)(1)(B) as the
applicable provisions. So even though the indictment cited
the wrong statute, Soto was nevertheless provided with
adequate notice of forfeiture. The district court therefore did
not commit plain error regarding the adequacy of notice.

                     III.   Conclusion

    For all of the reasons set forth above, we AFFIRM the
district court’s forfeiture order.
