                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2007

USA v. Forbes
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2480




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2480


                           UNITED STATES OF AMERICA

                                           v.

                                MICHAEL D. FORBES,
                                           Appellant


                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (D.C. Criminal No. 03-cr-00250-1)
                    District Judge: Honorable Christopher C. Conner


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 13, 2007

     Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.

                               (Filed: December 19, 2007)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Michael Forbes appeals from a sentence of 50 years’ imprisonment following his

conviction for unlawfully distributing 500 grams or more of crack cocaine in violation of

21 U.S.C. § 841(a)(1), conspiracy to do the same in violation of 21 U.S.C. § 846,
unlawful use of a telephone to commit a felony drug offense in violation of 21 U.S.C. §

843(b), and possession and use of a firearm during and in relation to drug trafficking in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). Forbes raises two issues on appeal. First, he

contends that his sentence is unreasonable because, when compared to the sentences

imposed on his co-defendants, it is grossly and unwarrantedly disparate. Second, Forbes

argues that the District Court did not adequately consider the impact of the Sentencing

Guidelines’ 100-to-1 differential between offenses involving crack cocaine and those

involving powder cocaine. For the reasons that follow, we will affirm the sentence

imposed by the District Court.

       We review the overall sentence for reasonableness. United States v. Grier, 475

F.3d 556, 568 (3d Cir. 2006) (citing United States v. Booker, 543 U.S. 220, 260-63

(2005)). Forbes’ argument that his sentence is unreasonable because of the gross

disparity between his sentence and those of his co-defendants fails for a number of

reasons. First, Forbes’ sentence falls in the middle of his Guideline range. As we noted

in United States v. Cooper, sentences within the Guidelines range are more likely to be

reasonable than sentences outside the Guidelines range. 437 F.3d 324, 332 (3d Cir.

2006). Furthermore, while the sentencing court may consider disparities between co-

defendants, it is not required to do so. See United States v. Parker, 462 F.3d 273, 276-78

(3d Cir. 2006). If it does so, there must be similarity of record and conduct. See 18

U.S.C. § 3553(a)(6). Although there certainly is difference in the sentences imposed, the



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record demonstrates that Forbes was the organizer and leader of this violent drug-

trafficking organization, which he began operating shortly after his release from prison in

New York. Furthermore, the record establishes that the District Court properly

considered the factors found in 18 U.S.C. § 3553(a), complying with this Court’s decision

in Cooper, 437 F.3d 324 (3d Cir. 2006). The District Court “gave meaningful

consideration” both to the §3553(a) factors and to “sentencing grounds properly raised by

the parties which have recognized legal merit and factual support.” Id. at 329, 331. The

District Court imposed a substantially longer sentence on Forbes because of his level of

involvement in the drug conspiracy, his prior criminal record, and its careful

consideration of the § 3553(a) factors. Consequently, Forbes’ argument that his sentence

is unreasonable fails.

       Forbes next argues that the District Court did not adequately consider the impact

on his sentence of the 100-to-1 sentencing differential between crack cocaine and powder

cocaine in that the Court refused to vary from the advisory Guideline range. To the

contrary, the record reflects that the District Court did consider the crack/cocaine

differential as part of the § 3553(a) issues. After defense counsel raised the issue of the

crack/cocaine ratio at sentencing, the District Court stated, “I recognize that you also wish

the court to take that issue into consideration under § 3553(a), and the court will take into

consideration all relevant information within the ambit of § 3553(a), as we are required to

do.” App. at 309. Thus, the District Court properly recognized its discretion to consider



                                              3
the potential unfairness of the 100-to-1 ratio when weighing the § 3553(a) factors. United

States v. Ricks, 494 F.3d 394, 402-03 (3d Cir. 2007); United States v. Gunter, 462 F.3d

237 (3d Cir. 2006). Therefore, Forbes’ argument that the District Court did not

adequately consider the crack/cocaine differential is without merit.

       For the foregoing reasons, we will affirm the sentence imposed in the Judgment

and Commitment Order of the District Court.




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