                                                                        [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13613         ELEVENTH CIRCUIT
                                                       MARCH 8, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 09-20411-CR-CMA

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

HOLGER-HELMUT BRUMMER,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (March 8, 2010)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Holger-Helmut Brummer appeals the district court’s order that he forfeit two
firearms and six rounds of ammunition pursuant to his conviction of knowingly

and willfully failing to declare firearms to a common carrier in violation of 18

U.S.C. § 922(e). Specifically, Brummer argues that the forfeiture provision of 18

U.S.C. § 924(d)(1) does not apply to violations of § 922(e), or, in the alternative,

that the district court may in its discretion refuse to order forfeiture under §

924(d)(1).

       The parties do not dispute the facts. A federal grand jury indicted Brummer

with knowingly and willfully delivering a package containing firearms and

ammunition to a common carrier, for transportation and shipment in foreign

commerce, without providing written notice to the carrier that the firearms and

ammunition were being transported and shipped, in violation of 18 U.S.C. §

922(e). The indictment also called for Brummer to forfeit to the United States one

Smith and Wesson .357 caliber revolver, one Walther .380 caliber pistol, and six

rounds of .380 caliber ammunition upon conviction, pursuant to 18 U.S.C. §

924(d)(1) and 28 U.S.C. § 2461(c). Brummer pleaded guilty to knowingly and

willfully violating § 922(e).

       The district court, despite Brummer’s arguments to the contrary, concluded

that the forfeiture provision of § 924(d)(1) applies to violations of § 922(e). The

district court also stated that if it had the discretion to do so, it would deny the



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forfeiture of Brummer’s weapons, but that it lacked discretion to deny forfeiture.

Brummer challenges those conclusions in this appeal. We review de novo

questions of statutory interpretation. Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th

Cir. 2004).

      The forfeiture provision at issue in this appeal provides in applicable part:

      Any firearm or ammunition involved in or used in any knowing
      violation of subsections (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of
      section 922, or knowing importation or bringing into the United States
      or any possession thereof any firearm or ammunition in violation of
      section 922(l), or knowing violation of section 924, or willful
      violation of any other provision of this chapter or any rule or
      regulation promulgated thereunder, . . . shall be subject to seizure and
      forfeiture . . . .

18 U.S.C. § 924(d)(1). The statute under which Brummer was convicted, § 922(e),

makes it unlawful for anyone:

      knowingly to deliver . . . to any common or contract carrier for
      transportation or shipment in . . . foreign commerce, to persons other
      than licensed importers, licensed manufacturers, licensed dealers, or
      licensed collectors, any package or other container in which there is
      any firearm or ammunition without written notice to the carrier that
      such firearm or ammunition is being transported or shipped . . . .

Brummer argues that because § 922(e) is not contained in § 924(d)(1)’s list of

“knowing” violations, a violation of § 922(e) does not fall within the ambit of the

forfeiture provision of § 924(d)(1).

      Brummer’s argument misses the mark. The statute that provides the penalty



                                           3
for a violation of § 922(e) states in applicable part that “whoever . . . willfully

violates any other provision of this chapter shall be fined under this title,

imprisoned not more than five years, or both.” 18 U.S.C. § 924(a)(1)(D); see

Bryan v. United States, 524 U.S. 184, 187-88, 118 S. Ct. 1939, 1943 (1998)

(explaining § 924’s relation to the rest of Title 18, Chapter 44 of the United States

Code). Willfulness is therefore an element of the offense under § 922(e). See

United States v. Andrade, 135 F.3d 104, 108 n.2 (1st Cir. 1998); United States v.

Ali, 68 F.3d 1468, 1473 (2d Cir. 1995).

      The indictment charged Brummer with knowingly and willfully violating §

922(e). During his plea colloquy, Brummer acknowledged that willfulness is an

element of a § 922(e) violation, and he pleaded guilty to a willful violation of §

922(e). That provision falls within the same chapter as § 924(d)(1), which

provides that “any firearm or ammunition involved in or used in any . . . willful

violation of any other provision of this chapter . . . shall be subject to seizure and

forfeiture . . . .” Under the plain language of § 924(d)(1), the forfeiture provision

applies to willful violations of § 922(e). “If the meaning of the statutory language

is plain, we go no further.” Wachovia Bank, N.A. v. United States, 455 F.3d 1261,

1267 (11th Cir. 2006).

      Brummer also argues that, even if the forfeiture provision contained in §



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924(d)(1) applies to violations of § 922(e), the district court retains discretion to

deny forfeiture. Brummer bases that argument on the fact that § 924(d)(1)

provides that “[a]ny firearm or ammunition involved in or used in any [of the

specified offenses] shall be subject to seizure and forfeiture,” not that such

property “shall be forfeited.” Brummer’s argument is that the phrase “shall be

subject to seizure and forfeiture” gives the district court discretion to return

firearms and ammunition in appropriate cases.

      Again, Brummer’s argument misses the mark. It completely ignores 28

U.S.C. § 2461(c), a provision cited in the part of the indictment containing the

forfeiture allegations. Section 2461(c) provides:

      If a person is charged in a criminal case with a violation of an Act of
      Congress for which the civil or criminal forfeiture of property is
      authorized, the Government may include notice of the forfeiture in the
      indictment . . . pursuant to the Federal Rules of Criminal Procedure.
      If the defendant is convicted of the offense giving rise to the
      forfeiture, the court shall order the forfeiture of the property as part of
      the sentence in the criminal case pursuant to the Federal Rules of
      Criminal Procedure . . . .

(emphasis added). “The word ‘shall’ does not convey discretion. It is not a leeway

word.” United States v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007).

      Brummer was charged with willfully violating § 922(e). As we explained

earlier, § 924(d)(1)’s forfeiture provision applies to willful violations of § 922(e).

The indictment charging Brummer with violating § 922(e) included a notice of

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forfeiture. Brummer pleaded guilty and was convicted. The district court therefore

was required to order forfeiture of the property. 28 U.S.C. § 2461(c). The statute

directs that the court do so “pursuant to the Federal Rules of Criminal Procedure.”

Id.

      Fed. R. Crim P. 32.2(b)(1) requires that, “[a]s soon as practical after a . . .

plea of guilty or nolo contendere is accepted, on any count in an indictment or

information regarding which criminal forfeiture is sought, the court must determine

what property is subject to forfeiture under the applicable statute.” Rule 32.2(b)(2)

explains the next step: “If the court determines that the property is subject to

forfeiture, it must promptly enter a preliminary order of forfeiture . . . directing

forfeiture of the specific property . . . .” The district court properly determined that

the two guns and six rounds of ammunition involved in Brummer’s willful

violation of § 922(e) were subject to forfeiture under § 924(d)(1). Fed. R. Crim. P.

32.2 therefore required the district court to direct forfeiture of the guns and

ammunition. The court lacked discretion to do otherwise.

      AFFIRMED.




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