     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




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