                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4131


UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


CONNELL LEE BERRY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-03-58)


Argued:   October 29, 2004                 Decided:   January 4, 2005


Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.


Affirmed by unpublished per curiam opinion.    Judge Gregory wrote a
dissenting opinion.


ARGUED: George Alan DuBois, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
James E. Todd, Jr., Research and Writing Specialist, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:


     Connell Lee Berry appeals a $10,000 forfeiture requirement

imposed on him as part of his sentence for three drug offenses.              We

affirm.


                                     I.

     Berry was charged with conspiring to distribute and to possess

with the intent to distribute more than 50 grams of cocaine base,

see 21 U.S.C.A. § 846 (West 1999) (Count One); distributing more

than 50 grams of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West

1999) (Count Two); and distributing more than five grams of cocaine

base, see id. (Count Three).          The indictment also contained a

notice alleging the Government was entitled to forfeiture of at

least $10,000 of Berry’s assets.          See Fed. R. Crim. P. 32.2(a).

     Berry     pled   guilty   to   all   three    counts   without    a   plea

agreement.     The Government then proffered that Berry’s offenses

included the sale of 56.4 grams of cocaine base for $1,800 and the

sale of 12.9 grams of cocaine base for $475.           Later the same day,

the district court entered an order documenting the forfeiture of

$10,000   to    the   United   States.       The    district   court       clerk

subsequently entered a judgment against Berry for the $10,000

forfeiture.

     The district court sentenced Berry to 120-month terms of

imprisonment on Counts One and Two and a 108-month term on Count


                                      2
Three, all to be served concurrently.      The court also imposed

concurrent five-year terms of supervised release and ordered Berry

to pay a $5,000 fine.    Although the fine amount was below the

$15,000-to-$10,000,000 range prescribed by the guidelines, see

United States Sentencing Guidelines Manual § 5E1.2(c) (2002);

21 U.S.C.A. § 841(b)(1)(A), (B) (West 1999 & Supp. 2004), the court

found that Berry would not be able to satisfy a fine in the

guideline range. The district court also ordered that as a special

condition of Berry’s supervised release, he would forfeit the

property specified in the forfeiture order.


                               II.

     Berry contends that the district court erred in ordering him

to forfeit $10,000 in the absence of evidence linking assets in

that amount to his drug trafficking crimes.    He concedes that he

never objected to the order and thus that we should conduct plain

error review.1

     Our authority to correct forfeited errors is granted by

Federal Rule of Criminal Procedure 52(b), which provides that “[a]

plain error that affects substantial rights may be considered even



     1
      The Government maintains that Berry waived review of the
forfeiture order by virtue of his guilty plea and his failure to
contest the Government’s forfeiture allegation.     The Government
therefore contends that we should not review the forfeiture order
even for plain error. In light of our conclusion that Berry cannot
satisfy the plain error requirements, we do not address this waiver
argument.

                                3
though it was not brought to the court’s attention.”                        In order to

establish our authority to notice an error not preserved by timely

objection, Berry must demonstrate that an error occurred, that the

error was plain, and that the error affected his substantial

rights.       See United States v. Olano, 507 U.S. 725, 732 (1993).

Even if Berry can satisfy these requirements, correction of the

error remains within our discretion, which we “should not exercise

... unless the error seriously affects the fairness, integrity or

public       reputation    of    judicial          proceedings.”      Id.     (internal

quotation marks & alteration omitted).

       Here,       even   if    we    assume       that    ordering   the    forfeiture

constituted plain error, Berry cannot demonstrate that the error

affected his substantial rights, i.e., that it was prejudicial.

See id. at 734; United States v. Hastings, 134 F.3d 235, 240 (4th

Cir.       1998)   (explaining       that   an     error   is   prejudicial    when   it

“actually affected the outcome of the proceedings”).                        That is so

because the amount of the fine imposed was based on Berry’s ability

to pay, and the fine and the forfeiture were part of the single,

integrated sentence.            Berry has failed to show that any reduction

in the amount of the forfeiture would not simply have resulted in

a commensurate increase in the amount of the fine imposed.2


       2
      We note that even were we to hold that Berry demonstrated
plain error affecting his substantial rights, we would decline to
exercise our discretion to notice the error under the specific
facts of this case. Berry was aware of the forfeiture order and
was the person best positioned to know whether it was based in

                                               4
                                   III.

     In   sum,   because   Berry   has    failed   to   show   that    he   was

prejudiced by the issuance of the forfeiture order he challenges,

we affirm.


                                                                      AFFIRMED




fact, yet he did not challenge it when given the opportunity; the
forfeiture did not violate the Excessive Fines Clause of the Eighth
Amendment; and, Berry will be able, via 28 U.S.C.A. § 2255 (West
Supp. 2004) motion, to challenge his counsel’s failure to object.

                                    5
GREGORY, Circuit Judge, dissenting:

      I respectfully dissent.     I would hold that the district court

committed plain error in imposing a forfeiture on Berry without the

required “factual nexus” between the forfeiture amount and his drug

crimes.



                                    I.

      Criminal forfeiture is authorized by 21 U.S.C. § 853, which

provides for the forfeiting of property “constituting, or derived

from any proceeds the person obtained, directly or indirectly, as

the result of” certain controlled substance violations.            21 U.S.C.

§ 853(a)(1) (1999).    Property “used, or intended to be used, in any

manner or part, to commit, or to facilitate the commission of” such

a violation is likewise subject to forfeiture.             Id. § 853(a)(2).

      In Libretti v. United States, 516 U.S. 29 (1995), the Supreme

Court considered 21 U.S.C. § 853 and held that criminal forfeiture

“is   less   a   substantive   offense   and   more   an    element   of   the

offender’s sentence.”     United States v. White, 116 F.3d 948, 950

(1st Cir. 1997) (citing Libretti, 516 U.S. at 39).                    Because

forfeiture is part of the sentence, the requirements of Fed. R.

Crim. P. 11 do not apply.      Libretti, 516 U.S. at 39-41.       “This does

not mean, however, that the government can forfeit assets for the

asking.”     White, 116 F.3d at 950.     Rather, the Libretti Court made

clear that “§ 853 limits forfeiture by establishing a factual nexus


                                     6
requirement: Only drug-tainted assets may be forfeited.” 516 U.S.

at 42 (emphasis added).        Thus, the Government must establish a

connection between the forfeited property and the defendant’s

criminal conduct.1

      Fed. R. Crim. P. 32.2, which governs the procedure for the

forfeiture of assets in a criminal case, confirms this requirement.

It states, in part:

      If the government seeks a personal money judgment, the
      court must determine the amount of money that the
      defendant will be ordered to pay.          The court’s
      determination may be based on evidence already in the
      record, including any written plea agreement or, if the
      forfeiture is contested, on evidence presented by the
      parties at a hearing after the verdict or finding of
      guilt.

Fed. R. Crim. P. 32.2(1).      Libretti noted that a district court did

not have to accept a defendant’s agreement to forfeit property,

“particularly     when   the   agreement   is   not   accompanied   by   a

stipulation of facts supporting forfeiture, or when the trial judge

for other reasons finds the agreement problematic.”2         519 U.S. at

43.       It also stated that in the case before it “we need not



      1
      The preponderance of the evidence standard governs forfeiture
questions. United States v. Tanner, 61 F.3d 231, 234 (4th Cir.
1995).
      2
      The Government urges us to read this statement to mean that
while the district court does not have to rely upon a stipulation
in a written plea agreement, it has the discretion to accept the
Government’s proffered forfeiture amount in the absence of any plea
agreement.   Appellee’s Br. at 17.    Such an interpretation goes
beyond the holding of Libretti and is implausible in light of the
Libretti Court’s reiteration that § 853 requires a “factual nexus.”

                                     7
determine the precise scope of a district court’s independent

obligation, if any, to inquire into the propriety of a stipulated

asset forfeiture embodied in a plea agreement.” Id. However, this

was because “there is ample evidence that the District Court both

understood the statutory requisites for criminal forfeiture and

concluded that they were satisfied on the facts of this case at the

time the sentence was imposed.”    Id. at 44.



                                  II.

     As the majority notes, because Berry did not object to the

order of forfeiture, the district court’s decision to impose

forfeiture in the amount of $10,000 is reviewed for plain error.3

Fed. R. Crim. P. 52(b); United States v. Fant, 974 F.2d 559, 564

(4th Cir. 1992).


     3
      While the majority declines to reach the Government’s
argument that Berry waived review of the forfeiture order by
pleading guilty, I would find that a waiver did not occur. The
Supreme Court’s holding that forfeiture is part of a defendant’s
sentence and not a substantive charge, Libretti, 516 U.S. at 39-41,
forecloses the Government’s argument that Berry’s guilty plea acted
as a waiver to his right to challenge the forfeiture.
     The Government also fails to demonstrate why this court should
treat Berry’s failure to object to his forfeiture amount
differently from a failure to object to any other part of his
sentence. For example, if the Government gave Berry notice that it
planned to seek an upward departure under the Sentencing Guidelines
and the district court imposed such departure without objection,
Berry’s argument on appeal that such a departure was unwarranted
would clearly be subject to plain error review. I fail to see how
the absence of an objection to the amount of forfeiture is
distinguishable.



                                   8
     In this case, there were no “stipulated facts” concerning

forfeiture for the district court to consider because Berry did not

plead guilty pursuant to a written plea agreement.                 The district

court judge also did not make any inquiry into what facts supported

the forfeiture of $10,000.             Similarly, the Government did not

proffer any evidence to support a forfeiture of that amount.                  In

short, no evidence supported a factual nexus between the drug

crimes to which Berry pled guilty and the $10,000 forfeiture

amount.4    In light of the clear language of § 853, Rule 32.2, and

the Court’s holding in Libretti, this was “error” under prong one

of the plain error analysis as set out in United States v. Olano,

507 U.S. 725, 732 (1993).        This error was also “plain” under prong

two because Libretti explicitly stated that § 853 included a

factual nexus requirement.        See Olano, 507 U.S. at 732 (explaining

that “plain” is synonymous with clear or equivalently obvious);

United     States   v.   Neal,   101    F.3d   993,   998   (4th    Cir.   1996)

(explaining that an error is clear or equivalently obvious “if the

settled law of the Supreme Court or this circuit establishes that

an error has occurred”).



     4
      The record does not reveal any reason that the forfeiture
amount was set at $10,000. The Presentence Investigation Report,
issued on December 3, 2003, indicated that Berry had $15 in known
assets and $212 in unsecured debt. Given that Berry’s charged drug
transactions only amounted to $2,275, it appears that the
Government may have set this amount arbitrarily. At oral argument,
the Assistant United States Attorney admitted that the record does
not reflect how the $10,000 amount was calculated.

                                        9
       Although such error occurred, Berry must also demonstrate that

the error affected his “substantial rights.”     In most cases, this

means that the error must have been prejudicial in that it affected

the outcome of the district court proceedings.    Olano, 507 U.S. at

734.    The majority reasons that any error did not affect Berry’s

substantial rights because his forfeiture and his fine were part of

a single, integrated sentence in which the district court judge

assessed a lower fine amount than that authorized by statute and

the Sentencing Guidelines.     However, in imposing a smaller fine,

the district court judge specifically noted at sentencing:      “The

Court finds that you are without the ability to satisfy a fine in

the prescribed range or pay interest.”    J.A. 36.   This finding was

in accordance with U.S.S.G. § 5E1.2, which gives a court authority

to impose a smaller fine if the defendant establishes that he is

unable or not likely to become able to pay all of the required

fine.    See U.S.S.G. § 5E1.2 (e).

       The judge then noted that, “You will forfeit property to the

United States as specified in the final order of forfeiture.” J.A.

36.    The judge did not mention the $10,000 forfeiture amount or tie

that forfeiture amount to his finding that Berry was without the

ability to pay the fine.      Thus, neither the judge’s findings at

sentencing nor other evidence in the record support the majority’s

assertion that a reduction in the amount of forfeiture may have

resulted in a commensurate increase in the amount of fine imposed.


                                  10
      The Fourth Circuit’s decision in United States v. Maxwell, 285

F.3d 336 (4th Cir. 2002), supports a finding that this error

affected   Berry’s    substantial    rights.       In   Maxwell,    the   court

conducted plain error review when a judge sentenced a defendant to

a longer term of supervised release than that allowed by statute.

285 F.3d at 339.      After finding that prongs one and two of Olano

were met, the court found that the error affected the defendant’s

substantial rights because “the terms and conditions of supervised

release are a substantial imposition on a person’s liberty.”               Id.

at 342.     Likewise, the forfeiture here is a term of Berry’s

supervised release.     It is a term that will likely subject Berry to

much financial hardship and also restrain him because he is now

subject    to   a   $10,000   debt   after   he    serves   his     sentence—a

considerable amount.      Therefore, I would find that the district

court’s imposition of the $10,000 forfeiture as a condition of

Berry’s supervised release, without any evidence suggesting that

such a forfeiture amount was correct, affected Berry’s substantial

rights.

      The last consideration, whether this error seriously affects

the   fairness,     integrity   or    public      reputation   of    judicial

proceedings, is usually more difficult to demonstrate.                However,

our holding in Maxwell suggests that it may be “fundamentally

unfair” to uphold a plain error that substantially affects one’s




                                     11
rights during a sentencing proceeding, when a resentencing can

easily occur.5   Specifically, the court stated,

     the restrictions on a person’s liberty while serving a
     term of supervised release are quite substantial.     To
     refuse to order a resentencing when a defendant will be
     required to endure such restrictions on his liberty,
     including restrictions on his ability to travel, for
     nearly a year longer than required by law, strikes us as
     fundamentally unfair.

Maxwell, 285 F.3d at 342-43.      Similarly, it is “fundamentally

unfair” to subject Berry to a $10,000 forfeiture when the terms of

his supervised release can be easily modified at resentencing.   In

this regard it is entirely reasonable to view a $10,000 forfeiture

as just as, if not more, onerous than subjecting one to an

additional eleven months of supervised release as in Maxwell.

     Yet, aside from this “fundamental unfairness,” this case

involves broader concerns.   In Libretti, the Court recognized that


     5
      There is some authority that unobjected to errors in
sentencing should be reviewed with a less deferential standard as
the costs of resentencing are lower than the costs of retrial. In
United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002), the Second
Circuit stated:

     We have also noted that noticing unobjected to errors
     that occur at trial precipitates an entire new trial that
     could have been avoided by a timely objection, whereas
     correcting a sentencing error results in, at most, only
     a remand for resentencing, or as, in this case, for a
     modification of the allegedly erroneous condition of
     supervised release. Accordingly, although the Government
     is correct that plain error review applies, it appears
     that in the sentencing context there are circumstances
     that permit us to relax the otherwise rigorous standards
     of plain error review to correct sentencing errors.

Id. at 125.

                                12
it had previously found that broad forfeiture provisions, such as

21 U.S.C. § 853, “carry the potential for Government abuse and ‘can

be devastating when used unjustly.’”               516 U.S. at 43 (quoting

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 634

(1989)).       “Nonetheless, [it] concluded that ‘[c]ases involving

particular abuses can be dealt with individually by the lower

courts, when (and if) any such cases arise.’”              Id. (quoting Caplin

& Drydale, 491 U.S. at 635).             Because the facts of this case

indicate    that     the   Government        imposed   a   forfeiture     amount

arbitrarily and without any factual nexus whatsoever to the drug

crimes in question, I conclude that this is such a case of abuse.6

      I believe such abuse seriously affects the fairness, integrity

and   public    reputation    of     judicial    proceedings.      First,   this

overreaching implicates both the fairness and public reputation of

our judicial system because it undermines a system that is built on

finding    facts    only   through    evidence    as   well   as   on   following

procedural safeguards adequate to protect the public’s rights.

Second, and equally important, is that the forfeiture amount was

imposed neither with any judicial finding that such an amount was

appropriate nor any evidence in the record to justify a $10,000

forfeiture.        In this regard, this case directly and seriously




      6
      By using the term “abuse,” I do not mean to suggest that the
Government acted with any animus towards Berry.

                                        13
affects the integrity of our judicial system, a system in which the

judge must be the arbiter of such forfeiture findings.



                                   III.

     Accordingly, as I would find that it was plain error to

subject Berry to a $10,000 forfeiture without establishing a

factual   nexus   between   this   amount   and   his   drug   crimes,   I

respectfully dissent.




                                    14
