Case: 19-12171 Date Filed: 09/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12171 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00623-VMC-CPT-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
HARVEY LEE BASS, a.k.a. Gold,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 16, 2020)
Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-12171 Date Filed: 09/16/2020 Page: 2 of 7
Harvey Lee Bass appeals his conviction for conspiracy to possess with intent
to distribute cocaine, oxycodone, and marijuana, as well as the accompanying
forfeiture order. Bass argues that the district court plainly erred in accepting his
guilty plea because the magistrate judge’s cursory explanation of the forfeiture
provisions of the plea agreement, the magistrate judge’s failure to inquire into
whether the government was seeking forfeiture, and the plea agreement’s omission
of any specific forfeitable property rendered his plea with respect to that provision
unknowing and involuntary. He also argues that the district court plainly erred in
entering the amended final forfeiture order for $240,000 because the government
failed to support its proposed forfeiture amount with competent evidence at
sentencing.
Bass did not object before the district court to the voluntariness of his plea.
Additionally, Bass’s plea agreement contained an appeal waiver, largely barring
appeal of his sentence. We conclude that the district court did not plainly err in
accepting Bass’s guilty plea with respect to the forfeiture clause. We further
conclude that Bass’s appeal waiver is valid; therefore, his challenge to the district
court’s forfeiture order is barred. We affirm.
I. BACKGROUND
Bass was charged with one count of conspiracy to possess with intent to
distribute cocaine, oxycodone, and marijuana, in violation of 21 U.S.C. §§ 846,
2 Case: 19-12171 Date Filed: 09/16/2020 Page: 3 of 7
841(b)(1)(B), and 841(b)(1)(C) (Count One), and one count of possession with
intent to distribute and distribution of fentanyl that resulted in the death of a third
party, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two). Bass
pled guilty to Count One in exchange for the government’s promise to move to
dismiss Count Two at sentencing. Bass’s plea agreement contained a voluntary
forfeiture clause. It also contained an appeal waiver by which Bass “expressly
waive[d] the right to appeal [his] sentence on any ground” save four: (1) the
sentence exceeded the applicable guidelines range as determined by the court,
(2) the sentence exceeded the statutory maximum penalty, (3) the sentence violated
the Eighth Amendment, or (4) the government appealed the sentence. Doc. 52 at
16–17.1
During the plea colloquy, the magistrate judge confirmed that Bass was of
sound mind, understood the nature of the charges against him, had not been
coerced into pleading guilty, and understood the rights he was giving up by
pleading guilty. 2 The magistrate judge also ensured that Bass had read the plea
agreement and discussed it with his attorney before the hearing. The magistrate
judge then reviewed the plea agreement with Bass, including both the forfeiture
clause and the appeal waiver. The magistrate judge noted that the forfeiture clause
1 “Doc.” numbers refer to the district court’s docket entries. 2 Bass waived his right to plead guilty before the district court and instead a magistrate judge took his plea. 3 Case: 19-12171 Date Filed: 09/16/2020 Page: 4 of 7
“states that you agree to forfeit to the government immediately and voluntarily any
and all assets and property or portions thereof which are subject to forfeiture under
the law,” Doc. 116 at 12, and then reviewed several other provisions of the plea
agreement. When the magistrate judge asked Bass if he understood those
provisions, Bass confirmed that he did.
In discussing the appeal waiver, the magistrate judge informed Bass that he
was “largely waiving [his] right to appeal” his sentence and outlined the four
events that would allow appellate review. Id. at 19. The magistrate judge asked if
Bass understood that he was “giving up [his] right to appeal [his] sentence unless
one of [those] four events [occurred].” Id. Bass responded that he did. Based on
Bass’s responses during the colloquy, the magistrate judge recommended that the
plea be accepted; the district court later accepted the plea.
After Bass’s plea was entered, but before his sentencing hearing, the
government moved for a forfeiture order in the amount of $285,000 pursuant to
Federal Rule of Criminal Procedure 32.2(b)(2). The district court entered an order
for that amount. At Bass’s sentencing hearing, the government moved to amend
the forfeiture order down to $240,000. Bass did not object to the adjustment, and
the district court verbally amended the order.
This is Bass’s appeal.
4 Case: 19-12171 Date Filed: 09/16/2020 Page: 5 of 7
II. DISCUSSION
On appeal, Bass argues that his plea was not knowing, voluntary, and
intelligent. He also contests the validity of the district court’s forfeiture order. We
address each argument in turn.
A.
Bass first argues that his plea was not knowing, voluntary, and intelligent
because the magistrate judge did not sufficiently review the forfeiture clause
during the plea colloquy, ask the government if it was seeking forfeiture in the
case, or identify any specific forfeitable property. Because Bass did not object
before district court to the voluntariness of his plea, we review this claim for plain
error. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under
the plain error standard of review, Bass must show that: (1) an error occurred,
(2) the error was plain, (3) it affected his substantial rights, and (4) it seriously
affected the fairness of the judicial proceeding. See id. at 1349–50. “A plain error
is an error that is obvious and clear under current law.” United States v. Gandy,
710 F.3d 1234, 1240 (11th Cir. 2013).
Federal Rule of Criminal Procedure 11(b) lists the items a court must
address before accepting a defendant’s guilty plea, including “any applicable
forfeiture.” Fed. R. Crim. P. 11(b)(1)(J); see also United States v. Moriarty,
429 F.3d 1012
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Case: 19-12171 Date Filed: 09/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12171 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00623-VMC-CPT-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
HARVEY LEE BASS, a.k.a. Gold,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 16, 2020)
Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-12171 Date Filed: 09/16/2020 Page: 2 of 7
Harvey Lee Bass appeals his conviction for conspiracy to possess with intent
to distribute cocaine, oxycodone, and marijuana, as well as the accompanying
forfeiture order. Bass argues that the district court plainly erred in accepting his
guilty plea because the magistrate judge’s cursory explanation of the forfeiture
provisions of the plea agreement, the magistrate judge’s failure to inquire into
whether the government was seeking forfeiture, and the plea agreement’s omission
of any specific forfeitable property rendered his plea with respect to that provision
unknowing and involuntary. He also argues that the district court plainly erred in
entering the amended final forfeiture order for $240,000 because the government
failed to support its proposed forfeiture amount with competent evidence at
sentencing.
Bass did not object before the district court to the voluntariness of his plea.
Additionally, Bass’s plea agreement contained an appeal waiver, largely barring
appeal of his sentence. We conclude that the district court did not plainly err in
accepting Bass’s guilty plea with respect to the forfeiture clause. We further
conclude that Bass’s appeal waiver is valid; therefore, his challenge to the district
court’s forfeiture order is barred. We affirm.
I. BACKGROUND
Bass was charged with one count of conspiracy to possess with intent to
distribute cocaine, oxycodone, and marijuana, in violation of 21 U.S.C. §§ 846,
2 Case: 19-12171 Date Filed: 09/16/2020 Page: 3 of 7
841(b)(1)(B), and 841(b)(1)(C) (Count One), and one count of possession with
intent to distribute and distribution of fentanyl that resulted in the death of a third
party, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two). Bass
pled guilty to Count One in exchange for the government’s promise to move to
dismiss Count Two at sentencing. Bass’s plea agreement contained a voluntary
forfeiture clause. It also contained an appeal waiver by which Bass “expressly
waive[d] the right to appeal [his] sentence on any ground” save four: (1) the
sentence exceeded the applicable guidelines range as determined by the court,
(2) the sentence exceeded the statutory maximum penalty, (3) the sentence violated
the Eighth Amendment, or (4) the government appealed the sentence. Doc. 52 at
16–17.1
During the plea colloquy, the magistrate judge confirmed that Bass was of
sound mind, understood the nature of the charges against him, had not been
coerced into pleading guilty, and understood the rights he was giving up by
pleading guilty. 2 The magistrate judge also ensured that Bass had read the plea
agreement and discussed it with his attorney before the hearing. The magistrate
judge then reviewed the plea agreement with Bass, including both the forfeiture
clause and the appeal waiver. The magistrate judge noted that the forfeiture clause
1 “Doc.” numbers refer to the district court’s docket entries. 2 Bass waived his right to plead guilty before the district court and instead a magistrate judge took his plea. 3 Case: 19-12171 Date Filed: 09/16/2020 Page: 4 of 7
“states that you agree to forfeit to the government immediately and voluntarily any
and all assets and property or portions thereof which are subject to forfeiture under
the law,” Doc. 116 at 12, and then reviewed several other provisions of the plea
agreement. When the magistrate judge asked Bass if he understood those
provisions, Bass confirmed that he did.
In discussing the appeal waiver, the magistrate judge informed Bass that he
was “largely waiving [his] right to appeal” his sentence and outlined the four
events that would allow appellate review. Id. at 19. The magistrate judge asked if
Bass understood that he was “giving up [his] right to appeal [his] sentence unless
one of [those] four events [occurred].” Id. Bass responded that he did. Based on
Bass’s responses during the colloquy, the magistrate judge recommended that the
plea be accepted; the district court later accepted the plea.
After Bass’s plea was entered, but before his sentencing hearing, the
government moved for a forfeiture order in the amount of $285,000 pursuant to
Federal Rule of Criminal Procedure 32.2(b)(2). The district court entered an order
for that amount. At Bass’s sentencing hearing, the government moved to amend
the forfeiture order down to $240,000. Bass did not object to the adjustment, and
the district court verbally amended the order.
This is Bass’s appeal.
4 Case: 19-12171 Date Filed: 09/16/2020 Page: 5 of 7
II. DISCUSSION
On appeal, Bass argues that his plea was not knowing, voluntary, and
intelligent. He also contests the validity of the district court’s forfeiture order. We
address each argument in turn.
A.
Bass first argues that his plea was not knowing, voluntary, and intelligent
because the magistrate judge did not sufficiently review the forfeiture clause
during the plea colloquy, ask the government if it was seeking forfeiture in the
case, or identify any specific forfeitable property. Because Bass did not object
before district court to the voluntariness of his plea, we review this claim for plain
error. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under
the plain error standard of review, Bass must show that: (1) an error occurred,
(2) the error was plain, (3) it affected his substantial rights, and (4) it seriously
affected the fairness of the judicial proceeding. See id. at 1349–50. “A plain error
is an error that is obvious and clear under current law.” United States v. Gandy,
710 F.3d 1234, 1240 (11th Cir. 2013).
Federal Rule of Criminal Procedure 11(b) lists the items a court must
address before accepting a defendant’s guilty plea, including “any applicable
forfeiture.” Fed. R. Crim. P. 11(b)(1)(J); see also United States v. Moriarty,
429 F.3d 1012, 1019 (11th Cir. 2005) (explaining that the district court “is required
5 Case: 19-12171 Date Filed: 09/16/2020 Page: 6 of 7
to inform the defendant” of the “rights and other relevant matters” listed in Rule
11(b)(1) to ensure he “understands the consequences of his plea”). The magistrate
judge discussed the plea agreement’s forfeiture paragraph with Bass and confirmed
that Bass understood. Bass provides no controlling authority that requires a more
detailed discussion of the forfeiture provision to meet the requirements of Rule 11,
and we are aware of none. In the absence of any such authority, there can be no
plain error. Thus, Bass has failed to show that the district court plainly erred in
accepting his guilty plea as knowingly, voluntarily, and intelligently made.
B.
Second, Bass argues that the district court erred in ordering forfeiture in the
amount of $240,000 because the plea agreement identified no factual basis for the
forfeiture and the government failed to support the amount with competent
evidence. In response, the government argues that this claim is barred by the
appeal waiver in Bass’s plea agreement.3
“We review the validity of a sentence appeal waiver de novo.” United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a
sentence appeal waiver if it is made knowingly and voluntarily. United States v.
Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). One way to establish that an
3 The government also argues that Bass waived this argument by inviting error when he failed to object to the amended forfeiture amount during his sentencing hearing. We do not address this argument because Bass’s claim is barred by the appeal waiver. 6 Case: 19-12171 Date Filed: 09/16/2020 Page: 7 of 7
appeal waiver was made knowingly and voluntarily is to show that “the district
court specifically questioned the defendant concerning the sentence appeal waiver
during the Rule 11 colloquy.” Id. at 1351. Based on the transcript of the plea
colloquy between Bass and the magistrate judge, we conclude that Bass knowingly
and voluntarily waived his right to appeal his sentence. The magistrate judge
questioned Bass on the contents of the appeal waiver and confirmed that Bass
understood its implications.
Criminal forfeiture is a part of a defendant’s sentence. Libretti v. United
States, 516 U.S. 29, 39 (1995). The district court’s forfeiture order is therefore
covered by Bass’s sentence appeal waiver. Because a challenge to the forfeiture
order’s factual basis does not fall under one of the four exceptions in the waiver,
this argument is barred.
III. CONCLUSION
For these reasons, we affirm Bass’s conviction and the district court’s
forfeiture order.
AFFIRMED.