              Case: 12-14598    Date Filed: 06/14/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14598
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:03-cr-60235-JIC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ARNE SOREIDE,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (June 14, 2013)

Before DUBINA, Chief Judge, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Appellant Arne Soreide appeals the district court’s order denying his pro se

motion, pursuant to Federal Rule of Criminal Procedure 36 (“Rule 36”), to correct
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an alleged clerical error from his 2006 resentencing. As background, Soreide was

convicted of 68 counts, including conspiracy to commit wire fraud, filing a

fraudulent tax return, filing a fraudulent corporate tax return, mail and wire fraud,

money laundering, and engaging in prohibited monetary transactions. Soreide was

subject to a criminal forfeiture, of which the government provided Soreide with

notice in his indictment. Following his conviction, the district court promptly

entered a preliminary order of forfeiture for real property at 195 Alexander Palm

Road, Boca Raton, Florida, and a monetary judgment of $7.5 million, and a second

preliminary order of forfeiture for the proceeds from the sale of a Days Inn and

Suites Hotel located in Jacksonville, Florida, as substitute assets. During its

original sentencing, the court orally adopted the two preliminary forfeiture orders

and provided for forfeiture of the property in its written judgment. Subsequently,

the court entered two more preliminary orders for forfeiture of the substitute assets

of Soreide’s interest in the proceeds of an insurance policy held by Utica Mutual

Insurance Company in the sum of $99,327.98, and Soreide’s interest in the

proceeds of the sale of 550 SE 9th Street, Delray Beach, Florida.

      On direct appeal, we affirmed Soreide’s convictions, but vacated his

sentence and remanded for resentencing under an advisory sentencing guidelines

scheme. United States v. Soreide, 177 F. App’x 31, 34-35 (11th Cir. 2006)

(unpublished). On remand for resentencing, the district court: (1) incorporated all


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four preliminary orders of forfeiture into its oral judgment; (2) incorporated all

four preliminary orders into its amended written judgment; and (3) specified the

forfeited properties and monetary judgment in the amended written judgment. The

court also entered final orders of forfeiture for each of the forfeited properties.

      In his Rule 36 motion, Soreide requested that the district court comply with

Federal Rule of Criminal Procedure 55, and Federal Rules of Civil Procedure

54(b), 58(b), and 79(a) and set out his forfeiture order and monetary judgment in a

separate document and properly record the information on the docket. The district

court denied Soreide’s Rule 36 motion without comment.

      On appeal, Soreide argues that his interests in the properties were never

forfeited because the district court did not orally pronounce forfeiture at his

original sentencing hearing. He also claims that the amended written judgment

conflicts with the oral pronouncement at his resentencing. Finally, Soreide argues

that his sentence should be vacated because the district court deleted 46 entries

from the docket, and his restitution order must be changed to “joint and several”

with another individual. In his reply brief, he adds that his motion did not rely on

any Federal Rules of Civil Procedure, but referenced them as they are referenced in

the Advisory Committee Notes to Federal Rule of Criminal Procedure 55.

      We review de novo the district court’s application of Rule 36. United States

v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). Rule 36 provides that “the court


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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.”

Fed.R.Crim.P. 36. However, Rule 36 “cannot be used . . . to make a substantive

alteration to a criminal sentence.” United States v. Pease, 331 F.3d 809, 816 (11th

Cir. 2003).

      A criminal forfeiture occurs when a defendant is divested of the profits of

the illegal activity for which he was convicted. United States v. Connor, 752 F.2d

566, 576 (11th Cir. 1985). Federal Rule of Criminal Procedure 32.2 (“Rule 32.2”)

outlines the procedure that a court must follow for criminal forfeitures. First, Rule

32.2 requires the government to afford the defendant notice in the indictment that it

intends to seek the forfeiture of property as part of the defendant’s sentence.

Fed.R.Crim.P. 32.2(a). Second, following a guilty verdict or plea, the district court

must determine what property is subject to forfeiture and then it “must promptly

enter a preliminary order of forfeiture setting forth the amount of any money

judgment, directing the forfeiture of specific property, and directing the forfeiture

of any substitute property if the government has met the statutory criteria.”

Fed.R.Crim.P. 32.2(b)(1)-(2). At sentencing, the preliminary order of forfeiture

becomes final “as to the defendant.” Fed.R.Crim.P. 32.2(b)(4)(A). The district

court must include the forfeiture when orally pronouncing the sentence or

otherwise ensure the defendant’s knowledge of the forfeiture and must include the


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order in the defendant’s written judgment. Fed.R.Crim.P. 32.2(b)(4)(B). The

court’s preliminary order of forfeiture becomes final unless a third party asserts an

interest in the property, in which case the court must enter a final order of

forfeiture. Fed.R.Crim.P. 32.2(c)(2).

      “[C]riminal forfeiture is part of a defendant’s sentence.” United States v.

Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). Rule 32.2 “contemplates final

disposition of forfeiture issues, as regards a defendant, at the time of sentencing.”

United States v. Petrie, 302 F.3d 1280, 1284 (11th Cir. 2002). “[A]ll

post-sentencing activities authorized by Rule 32.2 concern third-party interests.”

Id. Therefore, a forfeiture error is appealable by a defendant only in the context of

a sentence appeal. See Pease, 331 F.3d at 817 (holding that the government’s

challenge to a judgment’s lack of a forfeiture order was not before us because the

government did not appeal the defendant’s sentence). A defendant may not

challenge a criminal forfeiture order under Federal Rule of Civil Procedure 60(b)

because the civil rules do not provide for relief in a criminal case. United States v.

Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (holding that, rather than filing a

Rule 60(b) motion, a party should challenge the forfeitures on direct appeal).

      Soreide was subject to a criminal, not civil, forfeiture, and we conclude from

the record that the district court complied with Rule 32.2. Its oral pronouncement

at resentencing incorporated the four preliminary orders of forfeiture, and the


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written judgment correctly listed the assets from those preliminary orders. To the

extent Soreide attempted to rely on Federal Rule of Criminal Procedure 55, this

rule does not require that the order of forfeiture be on a separate docket entry.

Furthermore, there is no error stemming from Soreide’s original judgment because

this court has already vacated that sentence. Finally, Soreide’s newly raised

arguments regarding potentially deleted docket entries and the restitution order are

outside the scope of the order being appealed, and, thus, we decline to consider

them. Accordingly, because there is no clerical error in his judgment, the district

court did not err by denying Soreide’s motion and we affirm the district court’s

order.

         AFFIRMED.




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