                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

USA v. Lamb
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4184




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"USA v. Lamb" (2006). 2006 Decisions. Paper 1021.
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                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 05-4184
                                      __________

                           UNITED STATES OF AMERICA,
                                               Appellee,

                                           vs.

                                GEORGE EWER LAMB,
                                               Appellant.
                                    __________

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                                   (No. 00-cr-00119)
                        District Judge: Honorable Marvin Katz
                                     __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 16, 2006

                                      ___________

      Before: MCKEE and GARTH, Circuit Judges, and LIFLAND, District Judge *

                             (Opinion Filed: May 31, 2006)
                                     ___________

                                       OPINION
                                      __________



      *
          The Honorable John C. Lifland, Senior District Judge for the District of New
Jersey, sitting by designation.
LIFLAND, District Judge:

       George Lamb (“Defendant”) appeals from the District Court’s order denying his

motion to strike lis pendens and granting the government’s motion to amend his sentence.

We will affirm.
                                             I.

       Because we write only for the benefit of the parties, we will only briefly recount

the relevant facts. In 2000, Defendant was charged with various drug offenses involving

the manufacturing and distribution of methamphetamine in violation of 21 U.S.C. §§ 841

and 846.   A superseding indictment sought forfeiture in the amount of $100,000. In

June of 2000, a notice of lis pendens was filed as to the pending forfeiture count.

       On May 7, 2001, Defendant pleaded guilty to Count III of the indictment, pursuant

to a plea agreement which required him to agree to the entry of a preliminary order of

forfeiture in the total amount of $250,000, to forfeit immediately $63,983 in cash which

had been previously seized, and to pay the remainder of the full $250,000 at least two

weeks prior to sentencing or suffer certain consequences.1 On May 9, 2001, the District



       1
         Paragraph 3(c) of the plea agreement reads: “Defendant agrees to pay the
government the amount to be forfeited, that is $250,000, including but not limited to the
assets summarized above by a date not later than two weeks before sentencing. The
defendant agrees that should the defendant fail to make payments by two weeks before
sentencing, the government may elect to: void the agreement; void the forfeiture portion
of this agreement, try the forfeiture before the Court and seek a larger forfeiture; argue
that defendant is not entitled to a downward adjustment for acceptance of responsibility
under Guideline 3E1.1; and/or pursue any and all forfeiture remedies available at law and
equity. The defendant agrees to waive his right to trial by jury on all forfeiture issues.”

                                             2
Court signed a preliminary order of forfeiture for the sum of $250,000 including, but not

limited to, the $63,983 of currency already seized. On November 7, 2001, Defendant was

sentenced to 87 months imprisonment, three years of supervised release, a $15,000 fine,

and a $100 special assessment. During sentencing, neither the Defendant, the

government, nor the District Court made any reference to forfeiture. On November 13,

2001, Appellant filed a timely notice of appeal of his conviction and sentence, but did not

raise any issues related to forfeiture.

       On February 5, 2002, the District Court entered a final order of forfeiture for the

$250,000. On October 16, 2002, this Court affirmed Defendant’s judgment of conviction

and sentence.

       Almost three years later, on August 4, 2005, Defendant filed a motion to strike the

lis pendens because the forfeiture was not included in the sentence imposed on November

7, 2001. The government filed a cross-motion to amend the sentence under Federal Rule

of Criminal Procedure 36.     On September 7, 2005, the District Court denied Defendant’s

motion and entered an amended judgment which included forfeiture. This timely appeal

followed.


                                            II.

       The District Court had jurisdiction over this criminal action pursuant to 18 U.S.C.




(Appendix 63)

                                             3
§ 3231. This Court has appellate jurisdiction to review a final amended judgment of

conviction and sentence pursuant to 28 U.S.C. § 1291. “The legal question of whether

the District Court had the authority to amend its sentence is subject to plenary review.”

United States v. Bennett, 423 F.3d 271, 274 (3d Cir. 2005) (citing United States v.

Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004) (per curiam)).

                                             III.

       This case is governed by United States v. Bennett, wherein this Court held that

under Fed. R. Crim. P. 36,2 which allows for the correction of clerical errors, a district

court can amend a sentence to include an order of forfeiture. Where, as in Bennett, “there

is no dispute about notice to the defendant, the court’s intent, or the propriety of the

result; where the defendant has in fact stipulated to the forfeiture; and where the court has

already embodied its intent in an uncontested preliminary order of forfeiture, its omission

of forfeiture in the final sentence is for all practical purposes tantamount to a mere

clerical error.” 423 F.3d at 282.

       Here, Defendant agreed to forfeiture as part of his plea agreement and the District

Court embodied its intent in an uncontested preliminary order of forfeiture on May 9,

2001. The failure of the parties and the District Court to mention forfeiture at sentencing

was the result of mere oversight remediable under Fed. R. Crim. P. 36. The Defendant’s



       2
         The rule states: “After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part of the record, or correct
an error in the record arising from oversight or omission.”

                                              4
argument that his case is factually dissimilar to Bennett so as to require reversal is

unavailing.   The order of the District Court denying Defendant’s motion to strike lis

pendens and amending the judgment to include forfeiture will therefore be affirmed.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s Order denying

Defendant’s motion to strike lis pendens and amending the judgment of conviction and

sentence to include forfeiture.




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