                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4406


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KHALIL KENYON BLACKMAN,

                Defendant - Appellant.



                             No. 13-4483


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

KHALIL KENYON BLACKMAN,

                Defendant - Appellee.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00507-LMB-1)


Argued:   January 30, 2014                 Decided:   March 21, 2014


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion.   Judge Wilkinson wrote the opinion, in which Judge
Niemeyer and Judge Duncan joined.


ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER,
Alexandria, Virginia, for Appellant/Cross-Appellee.       Gurney
Wingate Grant, II, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee/Cross-Appellant.     ON BRIEF:
Dana J. Boente, Acting United States Attorney, Marc J. Birnbaum,
Special Assistant United States Attorney, Karen Ledbetter
Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee/Cross-
Appellant.




                               2
WILKINSON, Circuit Judge:

      Appellant Khalil Blackman was convicted after a bench trial

of two counts stemming from his participation in a series of

armed robberies. He now appeals, contending that the evidence

was insufficient to support his conviction for brandishing a

firearm    during    and   in     relation       to   a    crime    of    violence.     The

government    cross-appeals         the   district         court’s       denial    of   its

request for forfeiture. For the following reasons, we reject

Blackman’s arguments and affirm his conviction. We reverse the

trial     court’s    forfeiture      ruling,          however,      and       remand    with

directions to enter a forfeiture money judgment pursuant to this

decision.

                                          I.

      In early 2011, Avery Bines, James Acker, Michael Sylvester,

and   defendant     Khalil       Blackman       entered     into    a     conspiracy     to

commit armed robbery. The target of their scheme was Mark IV

Transportation & Logistics, a transportation contractor for the

electronics and software developer Apple. Bines acted as the

principal organizer of the conspiracy, while Blackman served as

the     “fence”     for    the     operation          --    i.e.,       the     individual

responsible for disposing of the stolen goods. The conspirators

planned to rob Mark IV in February of that year, and their

discussions contemplated the use of a firearm.



                                            3
       At the agreed time, Bines and Blackman situated themselves

in Bines’s van across the street from the Mark IV warehouse

where    the    targeted       truck       was   scheduled         to    be     loaded.        Acker

(armed with a gun) and Sylvester approached the Mark IV driver

upon    his    arrival.       They    forced         the   driver       into    his      truck    at

gunpoint before joining him in the vehicle. Acker then placed

the gun to the driver’s head and compelled him to drive a short

distance      to   a   rendezvous          point,      where      they    met       up   with    the

others.    While       Acker   bound       the       victim      and    Sylvester        acted    as

lookout,       Bines    and     Blackman         unloaded         the     stolen         products.

Blackman       later     sold        the     goods         and     compensated           his     co-

conspirators accordingly.

       Following       this    first       successful         effort,     the       conspirators

planned to rob a second Mark IV driver that June. As before,

their planning sessions contemplated the use of a firearm. On

the day of the robbery, Bines, Acker, and Sylvester tailed their

target    from     a    Mark    IV     facility         in    Maryland         to    a    mall    in

Virginia. Outside the mall, Sylvester intentionally rammed his

vehicle into the Mark IV truck. Acker then detained the driver

at gunpoint and commandeered his vehicle. Sylvester drove the

truck to a second location where the conspirators unloaded its

contents. Once again, Blackman acted as the fence for the stolen

goods.



                                                 4
      Later     that       year,     the    conspirators         decided     to      conduct     a

heist on a larger scale than their two previous efforts. In

preparation,      Acker          recruited           additional       participants           while

Blackman   rented          a   U-Haul      truck      to   transport       the    significant

quantity of goods they intended to steal. Their target was the

tractor trailer that transported Apple products to the Mark IV

facility. The conspirators -- excluding Blackman but including

the   additional       recruits           --    gathered       on    October      30     at    the

facility   to    conduct         the      robbery.      They    assaulted        the    Mark    IV

driver upon his arrival, striking him with a firearm, before

unloading the goods and transporting them to the house of one of

Sylvester’s friends. Blackman later fenced the stolen products.

      As a result of his involvement in these events, Blackman

was   indicted        on       two   counts.         Count     One     charged         him    with

conspiring to commit robbery, in violation of 18 U.S.C.

§ 1951(a). Count Two alleged a violation of 18 U.S.C. §§ 924(c)

and 2, which prohibit using or carrying a firearm during and in

relation to a crime of violence. The indictment also included a

forfeiture notice. Blackman was the sole individual tried --

Acker,   Bines,       and       Sylvester       had     earlier      pleaded      guilty       and

agreed to cooperate with the government.

      Following        a       one-day      bench      trial,        the   district          court

convicted Blackman on both counts. The court sentenced him to

120   months     in    prison        --    36    months        for   Count     One      and    the

                                                 5
mandatory      minimum         of     84     months       for     Count       Two,       to     run

consecutively. It also imposed concurrent sentences of three and

five     years        of     supervised        release       for       the         two   counts,

respectively.          Lastly,        the      court       ordered           $136,601.03         in

restitution,          jointly        and     severally          with         Blackman’s        co-

conspirators, based on an appraisal of the value of the stolen

goods.    It     rejected,          however,       the     government’s            request      for

forfeiture       in    the     same    amount.       The    court       later       denied     the

government’s          motion     to    amend        the     sentence          to     include     a

forfeiture order. This appeal and cross-appeal followed.

                                              II.

       Blackman’s          primary     claim        is     that        the     evidence        was

insufficient      to       justify     his     conviction         on    Count       Two,      which

charged that:

       [Blackman] did knowingly and unlawfully use, carry,
       and brandish a firearm, during and in relation to a
       crime of violence . . . , namely the conspiracy to
       interfere with commerce by robbery . . . as set forth
       and charged in Count One of the Indictment, which is
       re-alleged and incorporated by reference here.

Count Two cited both 18 U.S.C. § 924(c), governing firearm use,

and 18 U.S.C. § 2, governing aiding and abetting.

       Blackman       asserts       that    the     district       court’s         reliance     on

Pinkerton v. United States, 328 U.S. 640 (1946), as a basis of

conviction was inappropriate because Pinkerton was not mentioned

in the indictment. He claims to have suffered, as a result,


                                               6
unfair surprise at the district court’s ruling. Because we find

Blackman’s conviction appropriate under Pinkerton, we need not

address aiding and abetting liability as an alternate basis of

conviction.

       The Pinkerton doctrine provides that a defendant is “liable

for    substantive    offenses     committed      by     a   co-conspirator         when

their commission is reasonably foreseeable and in furtherance of

the conspiracy.” United States v. Dinkins, 691 F.3d 358, 384

(4th Cir. 2012) (quoting United States v. Ashley, 606 F.3d 135,

142-43 (4th Cir. 2010)) (internal quotation marks omitted). “The

idea behind the Pinkerton doctrine is that the conspirators are

each other’s agents; and a principal is bound by the acts of his

agents    within     the   scope    of   the     agency.”         United    States     v.

Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996) (internal quotation

marks omitted). In short, “so long as the partnership in crime

continues,     the   partners      act   for   each      other      in     carrying   it

forward.” Pinkerton, 328 U.S. at 646. The law of conspiracy in

this respect may seem strict, but it reflects the fact that the

combination of criminal capacities often poses a greater risk to

society than the actions of a single offender. Moreover, when

one reaps the benefits of a collective criminal enterprise, one

should be prepared to accept collective consequences.

       Contrary to Blackman’s argument, this court held in Ashley

that     the   Pinkerton    doctrine      need     not       be    charged     in     the

                                         7
indictment, even when it later acts as the legal basis for the

defendant’s conviction. 606 F.3d at 143. The Ashley court drew

an analogy to aiding and abetting liability, which can properly

be omitted from an indictment because it “simply describes the

way in which a defendant’s conduct resulted in the violation of

a particular law.” Id. The same is true of Pinkerton, which

merely represents an alternative form of vicarious liability.

Id.; see also United States v. Min, 704 F.3d 314, 324 n.9 (4th

Cir.   2013).      At    their      core,    both   modes   of    liability       rest   on

“notions    of     agency     and       causation.”   Ashley,     606   F.3d      at   143.

Ashley found unanimous support for its holding in the precedents

of our sister circuits. Id. (collecting cases).

       In   this     case,        the    prosecution’s      evidence       was    plainly

sufficient to support Blackman’s conviction under Pinkerton for

brandishing      a      firearm     during    and    in   relation    to   a     crime   of

violence in violation of § 924(c). Blackman’s co-conspirators

testified    that        he   was    privy    to    pre-robbery      discussions       that

included explicit references to the use of a firearm, and that a

firearm was actually brandished in the course of each robbery.

They also testified that Blackman played a crucial role in the

success of the operation, acting as the fence for the stolen

goods. The fact that Blackman was not present for each robbery

is irrelevant: “a defendant need not be involved in every phase

of [a] conspiracy to be deemed a participant.” United States v.

                                              8
Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Thus, the evidence

clearly demonstrated that Blackman not only joined the alleged

conspiracy, but that the use of a firearm was both reasonably

foreseeable     to     him   and    in   furtherance    of    the    goals   of   the

conspiracy. See United States v. Jordan, 509 F.3d 191, 202 (4th

Cir. 2007).

     Despite the holding in Ashley, Blackman nevertheless claims

that, on the specific facts of this case, he suffered unfair

surprise as a result of his conviction under Pinkerton. This

argument   is    meritless.        Count   Two   explicitly    incorporated       the

Count One conspiracy charge as the “crime of violence” predicate

for the § 924(c) violation. The indictment thus put Blackman on

notice   that    his    participation       in   the   robbery      conspiracy    was

relevant    to       the     alleged       firearm     offense.      Under    these

circumstances, “[c]ertainly there could be no danger of unfair

surprise.” Ashley, 606 F.3d at 144. 1




     1
       Blackman also argues that his conspiracy conviction under
Count One was unsupported by the evidence. Specifically, he
asserts that the trial testimony demonstrated that he actually
participated in three separate robbery conspiracies, rather than
the single conspiracy alleged in the indictment. We find that
the evidence detailing the overlap of actors, methods, and aims
in the three robberies was plainly sufficient to support the
district court’s finding of a single conspiracy. See Leavis, 853
F.2d at 218.



                                           9
                                     III.

     On    cross-appeal,   the   government      challenges   the    district

court’s denial of forfeiture. The district judge rejected the

prosecution’s     forfeiture        request     at    sentencing         without

explanation, though it did impose restitution, which has not

been challenged on appeal. J.A. 442, 445. Later, at the hearing

on   the   government’s    motion    to     correct   sentence,    the    court

appeared to base its denial of the motion on the fact that

Blackman lacked the assets necessary to satisfy a forfeiture

judgment. Id. at 512. 2

     The government’s argument is predicated on a sequence of

interlocking statutes. Under 18 U.S.C. § 981(a)(1)(C), “[a]ny

property, real or personal, which constitutes or is derived from

proceeds traceable to . . . any offense constituting ‘specified


     2
       The court further expressed doubts regarding whether the
government’s Federal Rule of Criminal Procedure 35(a) motion to
correct sentence was timely filed. Blackman presses a variant of
this argument on appeal, contending that the district court
failed to rule on the government’s 35(a) motion until after the
14-day window had elapsed. These arguments are irrelevant,
however, in light of the fact that this appeal concerns the
district court’s denial of the prosecution’s original request
for forfeiture -- not the denial of its Rule 35(a) motion. The
original request for forfeiture at sentencing was plainly made
in a timely fashion. A district court’s failure to dispose of a
Rule 35(a) motion within 14 days is no bar to this type of
ordinary appeal. See United States v. Shank, 395 F.3d 466, 469
(4th Cir. 2005). Moreover, the propriety of forfeiture has been
amply discussed both at trial and on appeal, thus eliminating
any argument of prejudice that Blackman might make.



                                      10
unlawful activity’ (as defined in section 1956(c)(7) of this

title), or a conspiracy to commit such offense,” “is subject to

forfeiture     to   the   United    States.”      Section     1956(c)(7)(A),         in

turn,    defines    “specified      unlawful      activity”    as    “any      act   or

activity constituting an offense listed in section 1961(1) of

this     title.”    Section    1961(1)      specifies    a    list       of   covered

offenses, including 18 U.S.C. § 1951, the robbery offense at

issue here.

       The   umbrella     forfeiture        statute   noted      above,       §    981,

generally governs civil forfeiture only. 18 U.S.C. § 981 (titled

“Civil    forfeiture”).       28   U.S.C.     §   2461(c),    however,        provides

that:

       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 or information 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 and section 3554 of title 18, United States
       Code. The procedures in . . . 21 U.S.C. 853[] apply to
       all stages of a criminal forfeiture proceeding . . . .

Section 2461 thus acts “as a ‘bridge’ or ‘gap-filler’ between

civil and criminal forfeiture,” authorizing “criminal forfeiture

when    no   criminal     forfeiture     provision     applies      to    the     crime

charged against a particular defendant but civil forfeiture for



                                         11
that charged crime is nonetheless authorized.” United States v.

Vampire Nation, 451 F.3d 189, 199 (3d Cir. 2006).

      Notably, § 2461(c) (in conjunction with § 981) provides

that the district court “shall order” forfeiture in the amount

of the criminal proceeds. As the Supreme Court remarked in a

related context, “Congress could not have chosen stronger words

to   express    its   intent       that        forfeiture        be   mandatory      in   cases

where the statute applied.” United States v. Monsanto, 491 U.S.

600, 607 (1989). “The word ‘shall’ does not convey discretion.

It is not a leeway word, but a word of command.” United States

v.   Fleet,     498   F.3d        1225,    1229          (11th      Cir.   2007)    (internal

quotation marks omitted). The plain text of the statute thus

indicates      that   forfeiture          is    not      a    discretionary        element    of

sentencing. Instead, § 2461 mandates that forfeiture be imposed

when the relevant prerequisites are satisfied, as they are here.

United States v. Newman, 659 F.3d 1235, 1240 (9th Cir. 2011);

see also United States v. Torres, 703 F.3d 194, 204 (2d Cir.

2012).   Insofar      as    the    district          court      believed    that     it   could

withhold forfeiture on the basis of equitable considerations,

its reasoning was in error.

      Forfeiture      is     mandatory          even         when   restitution      is    also

imposed.    These     two    aspects           of    a    defendant’s       sentence      serve

distinct      purposes:      restitution             functions        to   compensate        the

victim, whereas forfeiture acts to punish the wrongdoer. Newman,

                                                12
659 F.3d at 1241. While our circuit may not have taken up the

question explicitly, see United States v. Alalade, 204 F.3d 536,

537 (4th Cir. 2000) (affirming the imposition of both forfeiture

and   restitution),     at    least     “[e]ight    other    Circuits         to   have

considered orders of forfeiture and restitution in the face of

‘double    recovery,’    due    process-type       challenges      have       affirmed

their     concurrent     imposition.”         Torres,     703     F.3d        at    204

(collecting    cases).       “Because    restitution      and     forfeiture       are

distinct remedies, ordering both in the same or similar amounts

does not generally amount to a double recovery.” United States

v. McGinty, 610 F.3d 1242, 1247 (10th Cir. 2010).

      Furthermore,      the    two    remedies     need     not   be     at     cross-

purposes. Although it is not bound to do so, the government has

the discretion to use forfeited assets to restore a victim whom

the defendant has failed to compensate. Torres, 703 F.3d at 204-

05. The government’s ability to collect on a judgment often far

surpasses that of an untutored or impecunious victim of crime.

Both the government and Blackman acknowledge that the Marshals

Service has established a program specifically for the purpose

of executing forfeiture judgments. Appellant’s Reply Br. at 29-

30; Appellee’s Br. at 33-34. Realistically, a victim’s hope of

getting paid may rest on the government’s superior ability to

collect and liquidate a defendant’s assets.



                                         13
     The fact that a defendant is indigent or otherwise lacks

adequate     assets       to     satisfy         a    judgment        does      not     operate    to

frustrate entry of a forfeiture order. Forfeiture is calculated

on   the    basis      of      the    total          proceeds       of    a     crime,    not     the

percentage        of   those         proceeds          remaining         in     the     defendant’s

possession at the time of the sentencing hearing. United States

v. Hampton, 732 F.3d 687, 692 (6th Cir. 2013); see also United

States v. Amend, 791 F.2d 1120, 1127 n.6 (4th Cir. 1986) (“[T]he

government need not have offered evidence that the forfeitable

assets     were    still       in    existence         at     the     time    of      [defendant’s]

conviction.”).         This      rule       --       which    has     been      embraced     “by    a

unanimous and growing consensus among the circuits,” Hampton,

732 F.3d at 691 -- is grounded in basic logic. To conclude

otherwise would enable wrongdoers to avoid forfeiture merely by

spending their illegitimate gains prior to sentencing. Vampire

Nation,     451    F.3d     at       202.    But       a     robber      “who    dissipates       the

profits or proceeds” of his crimes for fleeting purposes “has

profited from [robbery] to the same extent as if he had put the

money in his bank account.” United States v. Casey, 444 F.3d

1071, 1074 (9th Cir. 2006) (quoting United States v. Ginsburg,

773 F.2d 798, 802 (7th Cir. 1985)) (internal quotation marks

omitted). Imposing forfeiture on defendants who have divested

themselves of their gains is therefore necessary to give full



                                                 14
effect to the penal purposes of the forfeiture statute. Newman,

659 F.3d at 1243.

       Blackman    contends    that   a     forfeiture       order    in   this     case

would violate the Eighth Amendment, which bars the government

from collecting excessive fines as punishment for an offense.

Where no final forfeiture order or judgment has been entered,

ruling on such a question would be premature. See United States

v.   Talebnejad,     460   F.3d     563,       573   (4th    Cir.     2006).   Where,

however,    a     forfeiture      judgment      in   a     particular      amount    is

directed -- as in this case, see infra -- a defendant’s Eighth

Amendment claim is ripe.

       Under United States v. Bajakajian, “a punitive forfeiture

violates    the      Excessive      Fines       Clause      if   it     is     grossly

disproportional to the gravity of a defendant’s offense.” 524

U.S. 321, 334 (1998). Our court has distilled this standard to

four    factors:    (1)    “the     amount      of   the     forfeiture      and    its

relationship to the authorized penalty;” (2) “the nature and

extent of the criminal activity;” (3) “the relationship between

the crime charged and other crimes;” and (4) “the harm caused by

the charged crime.” United States v. Jalaram, 599 F.3d 347, 355-

56 (4th Cir. 2010). Because questions of proportionality are

reserved primarily to the legislature, the Bajakajian test is

highly deferential. United States ex rel. Bunk v. Gosselin World

Wide Moving, N.V., Nos. 12–1369, 12–1417, 12–1494, slip op. at

                                          15
13 (4th Cir. Dec. 19, 2013); see also Bajakajian, 524 U.S. at

336.

       Blackman’s claim fails to satisfy the Jalaram criteria. The

maximum statutory fine for the robbery offense in Count One is

$250,000 -- a sum far exceeding the requested forfeiture. 18

U.S.C. § 3571(b)(3). As the PSR notes, the Guidelines maximum is

$150,000, indicating a substantial level of culpability. J.A.

567; see Bajakajian, 524 U.S. at 338-39. Blackman did not play a

minor role in the conspiracy; instead, as a fence, he served the

crucial function of enabling the conspiracy to dispose of its

loot both profitably and discreetly. He also participated in the

commission of the first robbery and the planning of all three,

over a period of several months. See United States v. Ahmad, 213

F.3d 805, 818 (4th Cir. 2000). In short, this is not a case in

which a trivial player in a vast conspiracy is held responsible

for    proceeds    far       out   of    proportion         to   the    scope   of    his

involvement.      See    Jalaram,       599    F.3d    at   355.      Furthermore,    the

crime caused significant concrete harm, depriving Apple of its

wares and potential profits in addition to damaging Mark IV’s

business. The robberies also subjected the immediate victims to

intense distress and inflicted the type of diffuse social harm

characteristic of all serious crimes. Given these circumstances,

the    imposition       of    a    forfeiture         order      in    the   amount    of

$136,601.03 poses no Eighth Amendment problem.

                                              16
      In      sum,       the        district        court’s          forfeiture         ruling       was

unsupported        by        any    relevant     legal          authority.        On    remand,      the

court      should        enter       a     forfeiture           order      in     the     amount      of

$136,601.03, the value of the stolen goods. Blackman is liable

for     the       reasonably             foreseeable        criminal         proceeds         of     the

conspiracy. United States v. McHan, 101 F.3d 1027, 1043 (4th

Cir. 1996) (“Just as conspirators are substantively liable for

the     foreseeable            criminal        conduct          of    a    conspiracy’s            other

members,      .    .     .    they       are   responsible           at    sentencing         for    co-

conspirators’ reasonably foreseeable acts and omissions . . . in

furtherance         of       the     jointly        undertaken            criminal       activity.”)

(internal quotation marks omitted). In the proceedings below,

Blackman offered only a conclusory response to the government’s

declaration         that           the    minimum        value       of     the        proceeds      was

$136,601.03, an amount which was generally corroborated by the

trial      testimony          of     an     Apple        loss    prevention            manager.     The

district court at sentencing imposed restitution of $136,601.03

without       objection.           On     appeal,    Blackman           contests        the   court’s

ability to impose forfeiture at all -- not the specific sum

proposed by the government, which, in any event, is well below

the maximum statutory fine of $250,000. At no point has Blackman

suggested an alternative figure.

      Nor is the form of the government’s forfeiture judgment at

issue.     It      is    well        settled     that       nothing         in    the     applicable

                                                    17
forfeiture     statutes    “suggests         that   money      judgments   are

forbidden.” Hampton, 732 F.3d at 691-92; see also United States

v. Olguin, 643 F.3d 384, 397 (5th Cir. 2011) (collecting cases

holding    that   money   judgments     are    proper   in    the   forfeiture

context). Such judgments would seem especially appropriate where

physical     assets   derived   from    the    conspiracy     are   no   longer

traceable or available.         See, e.g., United States v. Day, 524

F.3d 1361, 1377-78 (D.C. Cir. 2008).

                                       IV.

     For the foregoing reasons, we affirm Blackman’s conviction

but reverse the district court’s forfeiture ruling and remand

with directions for it to enter a forfeiture money judgment in

the amount of $136,601.03.

                                                             AFFIRMED IN PART,
                                                             REVERSED IN PART,
                                                                  AND REMANDED




                                       18
