United States v. Forbes

15-4064 United States v. Forbes UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 22nd day of December, two thousand sixteen. 5 6 PRESENT: DENNIS JACOBS, 7 JOSÉ A. CABRANES, 8 BARRINGTON D. PARKER, JR., 9 Circuit Judges. 10 11 12 - - - - - - - - - - - - - - - - - - - -X 13 14 United States of America, 15 Appellee, 16 17 -v.- 15-4064 18 19 Dennis Forbes, 20 Defendant-Appellant.* 21 22 23 - - - - - - - - - - - - - - - - - - - -X 24 * The Clerk of Court is respectfully directed to amend the official caption to conform to the above. 1 1 FOR APPELLANT: Marybeth Covert, Federal Public 2 Defender’s Office, Western 3 District of New York, Buffalo, NY. 4 5 FOR APPELLEE: Frank T. Pimentel, Joseph J. 6 Karaszewski, Assistant United 7 States Attorneys, for William J. 8 Hochul, Jr., United States 9 Attorney for the Western District 10 of New York, Buffalo, NY. 11 12 Appeal from a judgment of the United States District Court 13 for the Western District of New York (Siragusa, J.). 14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 15 DECREED that the judgment of the district court be AFFIRMED. 16 17 Dennis Forbes challenges the denial of his motion pursuant 18 to 18 U.S.C. § 3582(c) seeking a reduction of sentence. We assume 19 the parties’ familiarity with the underlying facts, the 20 procedural history of the case, and the issues on appeal. 21 Forbes was convicted of participation in a 22 drug-distribution conspiracy and of using a minor to participate 23 in that conspiracy, in violation of 21 U.S.C. §§ 846 and 24 861(a)(1). At trial, an officer recounted an interview in which 25 Forbes allegedly confessed to involvement in a homicide. That 26 testimony was cited in three paragraphs of the Presentence 27 Investigation Report. Forbes objected to one of those 28 paragraphs on the basis that it characterized the decedent as 29 a victim in the overall conduct of the convicted offense, but 30 the district court declined to resolve the objection because 31 it would not affect Forbes’s sentence. The Sentencing 32 Guidelines range was life, and the district court accordingly 33 imposed a life sentence. 34 This Court affirmed his conviction, but the Supreme Court 35 granted a petition for a writ of certiorari and vacated the 36 judgment in light of United States v. Booker, 543 U.S. 220 (2005), 37 which had been decided two weeks earlier. See Forbes v. United 38 States, 543 U.S. 1100 (2005). This Court remanded to the 39 district court for further proceedings in conformity with United 40 States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On remand, the 41 district court found the Guidelines sentence appropriate and 2 1 declined to resentence Forbes. Forbes appealed, and this Court 2 once again affirmed the judgment of the district court. 3 The United States Sentencing Commission subsequently 4 adopted Amendment 782 to the Sentencing Guidelines, which 5 reduced the offense levels assigned to drug quantities. Forbes 6 filed a § 3582(c) motion seeking to reduce his sentence under 7 the new sentencing range. It is uncontested that the amendment 8 applies to Forbes, and that the newly applicable sentencing range 9 is 360 months to life. The district court denied the motion 10 without a hearing, finding a reduction unwarranted in light of 11 “the underlying offenses (which included the use of a minor to 12 distribute drugs), the involvement in a murder and all the 13 sentencing factors set forth in 18 U.S.C. § 3553(a) . . . .” 14 J.A. 143. Forbes appeals from that denial. 15 We review the denial of a § 3582(c) motion for abuse of 16 discretion. United States v. Borden, 564 F.3d 100, 104 (2d Cir. 17 2009). A district court abuses its discretion “if it base[s] 18 its ruling on an erroneous view of the law or on a clearly 19 erroneous assessment of the evidence, or render[s] a decision 20 that cannot be located within the range of permissible 21 decisions.” Id. (quotation marks omitted). 22 We conclude that the district court’s denial of Forbes’s 23 § 3582(c) motion was not an abuse of discretion. The sentence 24 that the district judge first imposed, and has now twice 25 reconsidered, remains within the amended Guidelines range; and 26 the district judge has again found that it is the appropriate 27 sentence in light of the sentencing factors articulated at 18 28 U.S.C. § 3553. 29 Forbes argues that the denial of his motion was an abuse 30 of discretion because the denial refers to his “involvement in 31 a murder” and because the district judge had declined to resolve 32 Forbes’s objection to a paragraph of the Presentence 33 Investigation Report pertaining to the homicide. There is no 34 abuse of discretion. Forbes’s involvement in the homicide was 35 a subject of evidence adduced at trial over which the district 36 judge presided. Forbes additionally had the opportunity to be 37 heard on the issue at his sentencing. The district judge’s 38 conclusion that the Guidelines sentence he imposed remains 39 appropriate, and that no additional hearing would alter that 40 conclusion, was within the range of permissible decisions. 41 42 3 1 Accordingly, and finding no merit in appellant’s other 2 arguments, we hereby AFFIRM the judgment of the district court. 3 FOR THE COURT: 4 CATHERINE O’HAGAN WOLFE, CLERK 5 4