from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:14-CR-00347-D-1)
M. Otto, Office of the Federal Public Defender, Oklahoma
City, Oklahoma, for Defendant-Appellant.
E. Williams, Assistant U.S. Attorney (Mark A. Yancey, U.S.
Attorney for the Western District of Oklahoma, with him on
the brief), Office of the United States Attorney, Oklahoma
City, Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
MATHESON, CIRCUIT JUDGE.
Arnold, Sr., appeals the district court's forfeiture
order following his wire fraud and conspiracy convictions and
sentencing for a scheme involving vehicle-financing
rebates. He argues the district court erred by (1)
imposing an order of forfeiture after sentencing, and (2)
failing to require the Government to use forfeited proceeds
to offset the restitution Mr. Arnold owes his victims, which
would lower the total amount of restitution and forfeiture he
is required to pay. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court's forfeiture
to the indictment, Mr. Arnold-along with his wife, Robyn, and
his sons Ricky and Robert (collectively, "the
Arnolds")-devised a scheme to defraud individuals out of
the rebates paid to them when they purchased new vehicles.
The Arnolds persuaded the victims to turn their rebates over
to a charitable trust by falsely representing they would
manage the trust to pay off the victims' car loans.
Although the Arnolds made some loan payments from the trust,
they eventually stopped and used the remaining rebate funds
for their own personal expenses. The victims then either took
over the loan payments or relinquished the vehicles to the
lenders. The indictment notified Mr. Arnold of the
Government's intent to seek forfeiture of "a money
judgment in an amount equal to the proceeds obtained as a
result of the offenses." ROA, Vol. 1 at 43.
Arnold pled guilty to one count each of wire fraud and
conspiracy to commit wire fraud. See 18 U.S.C.
§§ 1343, 1349. He acknowledged in his plea that the
Government would pursue forfeiture. Following Mr.
Arnold's conviction but before sentencing, the district
court granted the Government's motion for a preliminary
order of forfeiture. It ordered Mr. Arnold to pay "a
money judgment in an amount to be determined" later by
the court. ROA, Vol. 1 at 87. The court said "this
Preliminary Order of Forfeiture will be amended under Fed. R.
Crim. P. 32.2(e)(1) when the amount of the money judgment has
been determined by this Court." Id.
March 24, 2016, at the first sentencing hearing, the
Government reiterated its intent to seek forfeiture once the
precise amount owed could be calculated. The district court
sentenced Mr. Arnold to 54 months in prison and postponed a
final determination on restitution and
16, 2016, the district court conducted a second sentencing
hearing, focused on restitution, and entered a final
restitution order of $280, 075.15, payable to the victims who
were entitled to compensation under the Mandatory Victims
Restitution Act ("MVRA"), 18 U.S.C. §
3663A(a)(1). The court again left the amount of forfeiture
unresolved. The Government stated that it would "discuss
with counsel a number or potential resolution and submit to
the Court a motion for an amended order." ROA, Vol. 5 at
9, 2016, the Government moved under Fed. R. Crim. P.
32.2(e)(1) to amend the preliminary order of forfeiture,
which lacked any specified amount, and to impose a $160,
136.50 forfeiture order. Mr. Arnold objected, arguing the
court lacked jurisdiction to amend the preliminary order
after sentencing. The court overruled his objection and
adopted the Government's proposed forfeiture order.
United States v. Arnold, No. CR-14-347-D, 2017 WL
187546, at *3-4 (W.D. Okla. Jan. 17, 2017) ("Rule 32.2
envisions scenarios such as the present and expressly allows
orders of forfeiture to be subject to amendment [after
sentencing] when the money judgment has been
calculated."). This appeal followed.
appeal, Mr. Arnold challenges the district court's
forfeiture order, arguing (1) the Government's failure to
establish the amount of forfeiture before sentencing violated
Rule 32.2 and thereby deprived the district court of
jurisdiction to enter the forfeiture order; and (2) the order
failed to require the Government to use Mr. Arnold's
forfeited proceeds to reduce the amount of restitution he
owes his victims, and it must therefore be vacated.
evaluating these arguments, "we review the district
court's forfeiture order as we would any other sentencing
determination-that is, we review its legal conclusions de
novo and its factual findings for clear error."
United States v. Bader, 678 F.3d 858, 893 (10th Cir.
2012); see also United States v. McGinty, 610 F.3d
1242, 1245 (10th Cir. 2010) (concluding that we apply de novo
review to the district court's legal interpretation of
federal forfeiture statutes).
first consider Mr. Arnold's argument that the Government
failed to comply with Rule 32.2 and thus the district court
lacked jurisdiction to amend the preliminary forfeiture order
after sentencing. We find no Rule 32.2 violation and
therefore affirm the district court's forfeiture
forfeiture is a punitive measure that forces offenders of
certain crimes to disgorge any profits obtained from their
criminal activity. McGinty, 610 F.3d at 1247. Unlike
restitution, which compensates victims for their losses,
forfeiture compels the offender to surrender money or
substitute assets to the government. Id. (explaining
that, given their different purposes, the amount of
forfeiture and restitution may differ). The parties agree
that Mr. Arnold's conviction for wire fraud ...