NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0151n.06
No. 19-1753
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 13, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE WESTERN
)
DISTRICT OF MICHIGAN
CASS LAVELL BETHEA, )
)
OPINION
Defendant-Appellant. )
)
BEFORE: STRANCH, BUSH, and LARSEN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Cass L. Bethea appeals the district court’s order
denying him a sentence reduction under the First Step Act. We AFFIRM the decision below.
In 2006, Bethea was sentenced to 140 months of imprisonment, followed by five years of
supervised release, after pleading guilty to possession with the intent to distribute five or more
grams of cocaine base (crack). Bethea appealed, and we affirmed his sentence. United States v.
Bethea, No. 06-2148 (6th Cir. Aug. 29, 2007). In February 2015, Bethea completed his prison
sentence and commenced supervised release. In June, Bethea violated various terms of his
supervised release, and the district court modified the terms to include special conditions for the
remainder of the period.
In January 2016, Bethea was arrested and charged with two felony counts of delivering
cocaine. A state court sentenced Bethea for that crime, and Bethea thereafter pleaded guilty in the
district court to violating the terms of his supervised release. The district court sentenced Bethea
No. 19-1753, United States v. Bethea
to 30 months of imprisonment, to be served consecutively to his state court sentence. Bethea is
currently in federal custody serving his sentence for violating the terms of his supervised release.
On March 4, 2019, Bethea moved to reduce his revocation sentence under the First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The district court denied that motion, and
Bethea timely appealed.
The First Step Act “permits a court that sentenced a defendant for an offense for which ‘the
statutory penalties . . . were modified’ by the Fair Sentencing Act to ‘impose a reduced sentence
as if’ the Fair Sentencing Act were ‘in effect at the time the covered offense was committed.’”
United States v. Beamus, 943 F.3d 789, 791 (6th Cir. 2019) (alteration in original) (quoting First
Step Act of 2018, § 404(a), (b), Pub. L. No. 115-391, 132 Stat. 5194, 5222). The Act imposes two
limits on eligibility: a defendant may not seek a reduction if (1) his sentence was already modified
under the Fair Sentencing Act of 2010, or (2) he lost a prior motion for a sentence reduction on the
merits. Id.
The district court denied Bethea’s motion, reasoning that “[b]ecause Bethea is in custody
for violating the terms of his supervised release” and not for his 2006 crack conviction, “he is not
eligible for relief under the First Step Act.” The court also held that even if Bethea is eligible for
relief under the First Step Act, it “exercises its discretion and declines to reduce his sentence.” On
appeal, Bethea only challenges the district court’s holding that he is ineligible for a sentence
reduction. That legal determination is reviewed de novo. United States v. Webb, 760 F.3d 513,
517 (6th Cir. 2014).
Bethea argues that the district court has authority to reduce his revocation sentence because
the original sentence for his crack conviction is a “covered offense” under the First Step Act. We
agree. See United States v. Woods, 949 F.3d 934, 937 (6th Cir. 2020) (holding that defendant
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No. 19-1753, United States v. Bethea
serving revocation sentence is eligible for a sentence reduction under the First Step Act). The
district court, however, also decided to exercise its discretion not to reduce his sentence and Bethea
does not challenge this alternative ruling on appeal. That decision still stands. Any challenge to
the court’s exercise of discretion has been forfeited. See United States v. Johnson, 440 F.3d 832,
845–46 (6th Cir. 2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief
on appeal.” (alteration in original) (quoting United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir.
1996)).
We AFFIRM the decision below.
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