Before Lynch, Chief Judge, Selya and Lipez, Circuit Judges.
Nearly twenty years ago, when appellant Erick Flores-Rivera was arrested on federal drug charges, the United States Customs Service*fn1 took possession of his new Jeep Cherokee, $1,903 in cash, and other items.*fn2 Pursuant to a plea agreement, Flores pled guilty to two counts in January 1991, and the court imposed a term of imprisonment of 240 months and a $20,000 fine. Eight years later, in 1999, the government conceded that Flores was entitled to the return of the seized property because it had been improperly forfeited without notice. Remarkably, however, as a result of procedural errors and misjudgments by the district court, abetted by the government’s own conduct and inaction, Flores is still without his property*fn3 and there has been no proper determination that it may lawfully be withheld from him. The most glaring of these missteps was the one challenged in this appeal: the district court’s sua sponte ruling in December 2008 that the property should be returned but, at the same time, summarily ordering that the funds be applied to Flores’s criminal fine.
At oral argument, the government tried to defend the decision of the district court as not plain error. Subsequently, it sensibly changed its position and acknowledged that the case should be remanded so that the district court can “properly determine” the amount that should be returned to Flores, which also would give the court, as the government finally put it, “the opportunity to comply with the notification requirements and the procedures for enforcement of criminal fines in 18 U.S.C. §§[] 3572, 3611-15.” Both the amount owed to Flores for his property and whether that entire sum may be immediately applied to his fine are difficult issues of considerable consequence to him. The Jeep was new when it was seized, and Flores asserts that it was worth $23,000 at that time. A customs employee reported in a 2007 declaration that the vehicle was transferred from storage in June 1992 and used by the agency for almost seven years – without compensation to Flores – until it was sold for $6,400 in 1999.*fn4 In addition, Flores entered into a contract with the Bureau of Prisons (BOP) to repay his fine in installments, see infra, but the government contends that the district court nonetheless has the authority to order full payment at any time.
