Justice Sotomayor concluded with the following in relevant part: McIntosh’s contrary arguments are unpersuasive. He points to the Rule’s use of the word “must” to highlight its mandatory character, but such language standing “alone has not always led this Court to interpret statutes to bar judges from taking action to which a missed statutory deadline refers.” Dolan, 560 U. S., at 611–612. Construed in context, the Rule contemplates some flexibility with its impracticality exception and indeterminate command that a preliminary order be entered “sufficiently in advance of sentencing.” Nor does it “make sense,” as McIntosh claims, to classify Rule 32.2(b)(2)(B) as a mandatory claim-processing rule because the Government must move the process forward. Although the Government plays an indispensable role in the criminal-forfeiture process, the Rule is directed exclusively to the sentencing court.
McIntosh also contends that an affirmance here would deprive the Rule of any effect, but a timely objection likely will prompt the district court to enter the preliminary order and, if appropriate, postpone sentencing. A timely objection would, at the very least, result in harmless-error review of the Rule’s violation. Finally, because McIntosh has not shown that reading the requirement as a time-related directive would frustrate significantly Rule 32.2’s effectiveness, McIntosh’s invocation of the Rule’s purpose—to ensure due process and promote judicial economy—falls flat.
Noncompliance with Rule 32.2(b)(2)(B) is a procedural error subject to harmlessness review. Because McIntosh did not challenge the lower courts’ harmlessness analysis in either his certiorari petition or his opening brief, this Court need not revisit it.
A counter-point to the Court’s reasoning is that delaying sentencing will often prejudice defendants. Such is the case for inmates who only get day-for-day credit for pre-sentence time spent in jail. Another point overlooked by the Court is that errors by the Court are attributed to the Government as opposed to the Defense.
