DLD-072 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2224 ___________

UNITED STATES OF AMERICA

v.

BRIAN A. PERRI, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. Action No. 2:15-cr-00486-001) District Judge: Honorable Michael M. Baylson ____________________________________

Submitted on Appellee’s Motion to Enforce Appellate Waiver and for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 19, 2023 Before: JORDAN, SHWARTZ, and SCIRICA, Circuit Judges

(Opinion filed: January 26, 2023) _________

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. Brian A. Perri appeals from an order of the United States District Court for the

Eastern District of Pennsylvania denying his motion to dismiss a final order of forfeiture

that was entered in his criminal case. The Government has filed a motion to enforce the

appellate waiver and for summary affirmance. For the following reasons, we grant the

Government’s motion in part and will summarily affirm the District Court’s order.

In 2015, the Government charged Perri with two counts of transporting, or

attempting to transport, child pornography, see

(a)(1), and one count of

possession of child pornography, see

(a)(4). (ECF 5.) The indictment

also included a notice of forfeiture, which provided that, as a result of the § 2252(a)

violations, Perri would forfeit property used to facilitate the crimes. (Id. at 4.)

Perri pleaded guilty to all three counts of the indictment. (ECF 29.) The executed

plea agreement provided that the parties would not file an appeal of the conviction and

sentence, and that Perri agreed to waive all rights to collaterally attack his conviction,

sentence, or any other matter related to the prosecution. (ECF 30, at ¶ 6.) The

Government then filed a “Motion for Judgment and Preliminary Order of Forfeiture,”

indicating that the property subject to forfeiture consisted of three laptop computers and

one external hard drive. (ECF 38.) At sentencing, Perri’s counsel acknowledged that

motion and stated that “we have no objection.” (ECF 110, at 7 of 22.) The District Court

entered a preliminary order of forfeiture (ECF 40), and sentenced Perri to 10 years of

imprisonment, to be followed by 15 years of supervised release. (ECF 41.) The

2 judgment noted that the computers and hard drive were subject to forfeiture. 1 (Id. at 6.)

Notice of the judgment and preliminary order of forfeiture was published on an official

government internet site from August 30, 2017, to September 28, 2017.

On March 28, 2022, the Government filed a motion for a final order of forfeiture

(ECF 107), which the District Court granted on April 4, 2022. (ECF 108.) Shortly

thereafter, Perri filed a pro se motion to dismiss the final order of forfeiture, essentially

arguing that he did not receive adequate notification. 2 (ECF 109.) The Government filed

a response, asserting that Perri lacked standing to challenge the final order of forfeiture

because his interest in the property was extinguished when forfeiture was included in his

judgment at sentencing and that, in any event, the motion to dismiss lacked merit. (ECF

112.) The District Court, “upon consideration of … [the] motion to dismiss … and the

1 Perri did not file a direct appeal, but he did file a motion pursuant to

, which the District Court construed as seeking relief under

. The District Court dismissed the motion as time-barred and meritless (ECF 47 & 48), and we denied a certificate of appealability. Perri v. United States, C.A. No. 18-3471 (order entered Apr. 24, 2019). 2 In particular, Perri claimed that he “was unaware the evidence in the possession of the government was going to be forfeited,” that he “was never notified that a Preliminary Order was published on an official government internet site,” and that “[t]his is the first time [he] has been notified of the pending forfeiture.” (ECF 109, at 2 of 4.) We note that these claims are belied by the record. The indictment contained a notice of forfeiture, the plea agreement contained a provision on not contesting forfeiture, and forfeiture was discussed at Perri’s sentencing.

3 government’s opposition thereto,” denied Perri’s motion without further explanation.

(ECF 113.) Perri timely appealed. (ECF 115.)

Perri, who is proceeding pro se and in forma pauperis, filed his brief on September

16, 2022. (Doc. 12.) The Government filed a motion to enforce the appellate waiver and

for summary affirmance. (Doc. 16.) Perri filed a response. (Doc. 21.) We have

jurisdiction pursuant to

.

We assume, without deciding, that review of the forfeiture order is not precluded

by the appellate wavier. See United States v. Jacobo Castillo,

(9th

Cir. 2007) (en banc) (noting that an appeal waiver is not a jurisdictional bar).

Nevertheless, we conclude that Perri lacked standing to challenge the final order of

forfeiture that was entered on April 4, 2022. “[T]he order of forfeiture entered at

sentencing is a final order with respect to the defendant from which he can appeal.”

United States v. Pelullo,

(3d Cir. 1999); United States v. Cheeseman,

, 275 n.4 (3d Cir. 2010) (explaining 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). But “the defendant generally has no standing to participate in the

ancillary proceeding that takes place after the forfeiture order is entered at sentencing.”

Pelullo,

; see also

(n)(2) (permitting “[a]ny person, other

than the defendant” to assert interest in property in an ancillary proceeding). Thus, Perri

cannot challenge the final forfeiture order because it “has no bearing on [his] rights.”

United States v. Flanders,

(11th Cir. 2014). 4 Accordingly, the District Court correctly rejected Perri’s motion to dismiss the

final order of forfeiture, and we agree with the Government that the appeal presents no

substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. Therefore, we grant

the Government’s motion for summary affirmance and will summarily affirm the District

Court’s judgment, and we deny the Government’s to enforce the appellate waiver. 3

3 Perri’s Motion to File Exhibits Attached to his Brief is denied as moot. 5