B. THE "VOLUNTARY DISGORGEMENT" ISSUE
As part of his plea agreement, Hoffer agreed not to contest the government's subsequent
civil forfeiture action seeking $50,000 from Hoffer as the proceeds of his illegal activities. The
"voluntary disgorgement" the district court relied upon was, in fact, a civil forfeiture. The district
court, at the government's request and with Hoffer's consent, specifically termed the disgorgement
a forfeiture. Moreover, the voluntariness of the forfeiture must be considered in the context of the
plea agreement: Hoffer traded his right to contest the forfeiture for what the government gave him
in the bargain, which included dismissing five counts of the indictment.
We turn now to the issue of whether civil forfeiture, contested or uncontested, is a prohibited,
encouraged, discouraged or unmentioned factor for departing from the sentencing guidelines. While
this issue is a question of first impression in our circuit, a number of other circuits have concluded
that civil forfeiture cannot be used by a district court as a basis for departure from the sentencing
guidelines. See United States v. Weinberger, 91 F.3d 642, 644-45 (4th Cir.1996); United States v.
Hendrickson, 22 F.3d 170, 175-76 (7th Cir.1994); United States v. Crook, 9 F.3d 1422, 1425-26
(9th Cir.1993); United States v. Shirk, 981 F.2d 1382, 1397 (3d Cir.1992), vacated on other
grounds, 510 U.S. 1068, 114 S.Ct. 873, 127 L.Ed.2d 70 (1994). No circuit has held otherwise.
Section 5E1.4 of the sentencing guidelines provides: "Forfeiture is to be imposed upon a
convicted defendant as provided by statute." We agree with the Third, Fourth, Seventh and Ninth
Circuits that § 5E1.4 indicates that the Commission viewed forfeiture as a wholly separate sanction,
which, if imposed, was intended to be in addition to, not in lieu of, imprisonment. See Weinberger,
91 F.3d at 644; Hendrickson, 22 F.3d at 175; Crook, 9 F.3d at 1426; Shirk, 981 F.2d at 1397. This
view is supported by the Commission's decision to include forfeiture as a relevant factor when
setting fines, see U.S.S.G. § 5E1.4(d)(5), while leaving it out as a factor which may support a