Justice Sotomayor continued in relevant part: A district court’s failure to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review. Although the District Court did not comply with Rule 32.2(b)(2)(B) when it failed to enter a preliminary order of forfeiture before McIntosh’s initial sentencing, the District Court retained its power to order forfeiture against McIntosh.
This Court has identified three types of time limits: (i) jurisdictional deadlines; (ii) mandatory claim-processing rules, and (iii) time related directives. See Dolan v. United States, 560 U. S. 605, 610–611. McIntosh claims that Rule 32.2(b)(2)(B) is a claim-processing rule—a mandatory deadline that regulates the timing of motions or claims before the court and that, unlike jurisdictional deadlines, is subject to waiver and forfeiture by the litigant. Id., at 610. The Government, on the other hand, argues that Rule 32.2(b)(2)(B) is a flexible time-related directive—a deadline that seeks speed by directing a public official to act by a certain time and that, if missed, does not deprive the official of “the power to take the action to which the deadline applies.” Id., at 611. Noncompliance with a mandatory claim-processing rule is presumed to be prejudicial, Manrique v. United States, 581 U. S. 116, 125 (2017), but noncompliance with a time-related directive is, in this context, subject to harmless-error principles on appellate review, Fed. Rule Crim. Proc. 52(a). The Court agrees with the Second Circuit and the Government that Rule 32.2(b)(2)(B) establishes a time-related directive.
The Court in Dolan addressed the proper remedy when a district court misses a statutory deadline to act related to criminal sentencing imposed by a statute that “did not specify a consequence for noncompliance.” The Court held that the provision at issue was a time-related directive, such that, if “a sentencing court misses the deadline,” it retains the power to act in that circumstance.
A counter argument to the Court’s position is that the failure to meet a mandatory deadline must have a consequence. Otherwise, the deadline is not “mandatory.” At a minimum, the Government should be barred from oral argument on appeal due to its or the Court’s failure to meet the deadline.
