United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE SENTENCE
M. LAWSON United States District Judge.
defendant was sentenced on September 9, 2015 to a prison term
of 120 months following his guilty plea to conspiracy to
possess with intent to distribute five kilograms or more of
cocaine and conspiracy to use a communications device in
furtherance of a drug-trafficking crime. 21 U.S.C.
§§ 841(a)(1), 843(b), and 846. Prior to sentencing,
the Court entered a stipulated order of forfeiture under seal
that directed the defendant to satisfy a money judgment in
the amount of $150, 000 mandated by 21 U.S.C. § 853,
representing the total value of the property subject to
forfeiture for the defendant's violations. The order
stated the defendant shall be jointly and severally liable
for the money judgment with his co-defendants convicted of
violating § 841(a)(1). The order also noted that, by
entering into the stipulation, the defendant expressly waived
the requirements of Federal Rules of Criminal Procedure 32.2
and 43(a) regarding pronouncement of forfeiture at sentencing
and incorporation of forfeiture in the judgment. At the
sentencing hearing, the Court granted the government's
oral motion to include the stipulated order of forfeiture in
the defendant's judgment. The defendant voiced no
objections to the sentence at the time and did not file a
11, 2017, the defendant filed a motion to vacate his sentence
under 28 U.S.C. § 2255. In his motion, the defendant
expressly states that he does not challenge the validity of
the custodial component of his sentence, contesting only the
forfeiture portion of his judgment. He argues the money
judgment was unlawful because it was based on joint and
several liability. The defendant avers that the property he
actually acquired as a result of the crime was approximately
$20, 000 and that the additional $130, 000 contemplated by
the forfeiture order accounts for property obtained solely by
his co-conspirators. The defendant cites Honeycutt v.
United States, ___ U.S. ___, 137 S.Ct. 1626, 1635
(2017), in support of his position, where the Supreme Court
concluded “[f]orfeiture pursuant to § 853(a)(1) is
limited to property the defendant himself actually acquired
as the result of the crime.” The Court held that
section 853, by its plain text, forecloses joint and several
liability for co-conspirators. Id. at 1633.
defendant states three additional grounds for challenging the
validity of the forfeiture money judgment. He argues the
government did not comply with section 853(p)'s
procedural requirements in violation of his due process
rights under the Fifth Amendment. He also argues that the
Court never gave him oral notice at sentencing of the money
judgment in violation of Federal Rule of Criminal Procedure
32.2(b)(4)(B) and Due Process, and relatedly, because the
Court's oral pronouncement controls over the written
judgment, any attempt by the Bureau of Prisons to collect on
the forfeiture order is unlawful. The defendant asks the
Court to vacate the money judgment, order the government and
Bureau of Prisons to refund all monies collected under the
judgment, and hold an evidentiary hearing to resolve any
factual disputes relating to this action.
2255(a) authorizes “[a] prisoner in custody . . .
claiming the right to be released” to challenge the
validity of his sentence by showing it “was imposed in
violation of the Constitution or laws of the United States,
” the sentencing court lacked jurisdiction, the
sentence exceeds the maximum penalty allowed by law, or the
conviction “is otherwise subject to collateral
attack.” By its terms, section 2255 permits courts to
hear only challenges to the defendant's custody or
confinement. See Duggins v. United States, 240 F.2d
479, 484 (6th Cir. 1957) (“[T]he right to relief under
Sec. 2255 is limited by the express terms of the statute to
situations where the prisoner is attacking the judgment under
which he is in custody and, if successful, would be entitled
to be released.”). Courts uniformly have held that
defendants cannot use section 2255 to attack restitution or
forfeiture orders incorporated in their judgments.
The custodial limitation embedded in the text of the federal
postconviction statutes makes plain that convicted defendants
have no right to use those statutes to raise freestanding
challenges to the non-custodial components of their
sentences, including forfeiture orders. United States v.
Ross, 801 F.3d 374, 380 (3d Cir. 2015) (“monetary
component of a sentence” does not satisfy the “in
custody” requirement of federal habeas statutes);
United States v. Finze, 428 Fed.Appx. 672, 677 (9th
Cir. 2011) (unpublished) (because a “forfeiture claim
... is not a claim for release from custody, ” claim is
not cognizable on collateral review), cert. denied, 565 U.S.
902 (2011); United States v. Thiele, 314 F.3d 399,
400 (9th Cir. 2002) (Section 2255 “is available to
prisoners claiming the right to be released from custody.
Claims for other types of relief, such as relief from a
restitution order, cannot be brought in a § 2255 motion,
whether or not the motion also contains cognizable claims for
release from custody.”), cert. denied, 540 U.S. 839
(2003); see also Blaik v. United States, 161 F.3d
1341, 1342-43 (11th Cir. 1998) (collecting cases);
Campbell v. United States, 330 Fed.Appx. 482, 482-83
(5th Cir. 2009) (per curiam) (unpublished) (fine and
restitution orders not challengeable in a Section 2241
petition); Arnaiz v. Warden, 594 F.3d 1326, 1329
(11th Cir. 2010) (per curiam) (restitution order not
challengeable in a Section 2241 petition); Kaminski v.
United States, 339 F.3d 84, 87 (2d Cir.) (fine and
restitution orders not challengeable in a Section 2255
proceeding) (collecting cases), cert. denied, 540 U.S. 1084
United States v. Alquza, No. 11-CR-373, 2017 WL
4451146 at *3 (W.D. N.C. Sept. 21, 2017).
at least three courts recently have denied motions to vacate
raising Honeycutt arguments under section 2255(a).
See Ferguson v. United States, No. 16-CR-00010, 2017
WL 5991743 at *1 (S.D. Ohio Dec. 4, 2017)
(“‘There is no indication that the Sixth Circuit
has ever permitted a 2255 challenge to a forfeiture
judgment.'” (quoting United States v.
Blankenship, No. 7:15-011-DCR, 2017 WL 3260604, at *3));
Alquza, No. 11-CR-373, 2017 WL 4451146 at *3
(“Defendant may not invoke Honeycutt on
collateral review in . . . a motion to vacate under 28 U.S.C.
§ 2255.”); Bangiyev v. United States, No.
14-CR-206, 2017 WL 3599640 at *4 (E.D. Va. Aug. 18, 2017)
(“To the extent that Petitioner seeks to reduce the
amount he owes in forfeiture through this Motion, the
Government correctly points out that the relief cannot be
provided through § 2255.”).
Court sees no reason to depart from those holdings and
similarly concludes that section 2255 forecloses
defendant's Honeycutt and other
forfeiture-related claims. However, the Court recognizes that
a Honeycutt argument may be raised on direct appeal.
Indeed, in United States v. Elliott, et al., ___
F.3d ___, Nos. 16-6474/6676/6683, 2017 WL 5895194 (6th Cir.
Nov. 30, 2017), three defendants convicted of conspiracy to
distribute oxycodone directly appealed the district
court's assessment of $10 million in forfeiture proceeds,
for which the defendants were jointly and severally liable.
The Sixth Circuit, in light of Honeycutt, remanded
the defendants' forfeiture judgments for recalculation
“up to the amount each defendant acquired from the
crime, and without the imposition of joint and several
liability.” Id. at *9.
2255 does not provide a basis for the defendant's
forfeiture attack and his motion to vacate must be dismissed
for that reason. The Court, therefore, will not reach the
merits of the defendant's arguments.
it is ORDERED that the motion to vacate
sentence [dkt. #664] is DENIED.
further ORDERED that the defendant's
motion to stay forfeiture collection ...