United States v. McIntosh

Summary

In *United States v. McIntosh*, the Second Circuit held that the failure to enter a preliminary forfeiture order before sentencing, as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B), does not invalidate the forfeiture; the deadline is a non-jurisdictional time-related directive. The court also held that a *Rehaif* error—failure to instruct the jury that the defendant knew he was a felon for purposes of 18 U.S.C. § 922(g)—is subject to plain-error review, and McIntosh failed to show that he would have presented evidence that he did not know his felon status, as required by *Greer v. United States*. The Second Circuit affirmed the district court's judgment on both issues.

Holdings

1. Rule 32.2(b)(2)(B) is a time-related directive, not a jurisdictional rule or claims-processing rule, and the district court's failure to comply with its timing requirements does not render the forfeiture invalid.
2. McIntosh cannot establish plain error under Greer v. United States because he offered no evidence that he did not know he was a felon, and there is no reasonable probability that the outcome would have been different.

Questions Presented

1. Whether the order of forfeiture should be vacated because the district court failed to enter a preliminary order prior to sentencing as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B)
2. Whether McIntosh was improperly convicted of possessing firearms as a felon (Counts 12-14) because the government did not prove that he knew he was a felon, in light of Rehaif v. United States

Disposition

affirmed