Filed: Oct. 26, 2021
Latest Update: Oct. 27, 2021
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2066
___________
UNITED STATES OF AMERICA
v.
LEVI EUGENE BROWN,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2:16-cr-00071-001)
District Judge: Honorable Mark R. Hornak
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
On July 29, 2021
Before: McKEE, GREENAWAY, JR. and BIBAS, Circuit Judges
(Opinion filed: October 26, 2021)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Levi Brown appeals the District Court’s order dismissing his motion
to return property for lack of jurisdiction. The Government has filed a motion for sum-
mary affirmance. For the reasons discussed below, we grant the Government’s motion
and will summarily affirm the District Court’s order.
In 2014, Brown pleaded guilty to drug and firearms charges. As part of the plea
agreement, he agreed to forfeit $8,000 in cash that the Government seized while search-
ing his home. The Government thus filed a motion for a preliminary order of forfeiture,
which the District Court granted. In August 2016, the District Court entered judgment,
sentencing Brown to an aggregate term of 120 months’ imprisonment. The criminal
judgment explicitly stated that Brown forfeited “$8,000 in United States currency.” ECF
No. 46 at 7. The Court also entered a final order of forfeiture to the same effect. Brown
did not appeal the criminal judgment or the forfeiture order.
About four-and-a-half years later, in April 2021, Brown filed a motion for return of
property. He cited a variety of rules and statutes but relied primarily on Fed. R. Crim. P.
41(g). See ECF No. 61. He claimed that the seizure of the money had been unlawful and
asked for the Government to return the $8,000. The District Court determined that the
motion was untimely and procedurally improper, and therefore dismissed it. Brown ap-
pealed, and the Government has filed a motion to summarily affirm.1
1
We have jurisdiction under 28 U.S.C. § 1291 and exercise de novo review. See United
States v. Cheeseman, 600 F.3d 270, 275 n.4 (3d Cir. 2010); Metro. Life Ins. Co. v. Price,
501 F.3d 271, 275 (3d Cir. 2007).
2
We agree with the District Court’s analysis. “[T]he order of forfeiture entered at sen-
tencing is a final order with respect to the defendant from which he can appeal.” United
States v. Pelullo, 178 F.3d 196, 202 (3d Cir. 1999); Cheeseman,
600 F.3d at 275 n.4 (ex-
plaining that “a forfeiture becomes final at sentencing and that a defendant may appeal a
forfeiture order once sentenced”); Fed. R. Crim. P. 32.2(b)(4). Thus, if Brown wished to
challenge the forfeiture order, he should have filed a direct appeal from the criminal judg-
ment. See Young v. United States,
489 F.3d 313, 315 (7th Cir. 2007) (explaining that “a
criminal forfeiture is part of the defendant’s sentence and must be challenged on direct
appeal or not at all”). He did not do so, and the District Court correctly refused to con-
sider Brown’s tardy attack on the forfeiture order.
Brown’s invocation of Rule 41(g) does not change the analysis. While a defendant
may sometimes seek the post-trial return of property under Rule 41(g), this procedure is
not available if the property was “subject to forfeiture.” See generally United States v.
Chambers,
192 F.3d 374, 376 (3d Cir. 1999) (stating that “property must be returned once
criminal proceedings have concluded, unless it is contraband or subject to forfeiture”);
Sarah N. Welling, 3A Federal Practice and Procedure Criminal (Wright & Miller) § 690
(4th ed.) (“If property has been ordered forfeited in a judicial forfeiture proceeding, this
cannot be challenged by a motion under Criminal Rule 41(g).”). Because no authority
permits Brown’s “belated challenge to a criminal forfeiture that could have been chal-
lenged on direct appeal,” the District Court properly dismissed the motion for lack of ju-
risdiction. Young,
489 F.3d at 316 (so holding).
3
Accordingly, we grant the Government’s motion and will summarily affirm the Dis-
trict Court’s order.2
2
In the documents Brown has filed in this Court, he sometimes seems to argue that he is
entitled to a reduction of sentence. However, his motion for a reduced sentence remains
pending in the District Court and is not part of this appeal.
4
