                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2860




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"USA v. Forrest" (2003). 2003 Decisions. Paper 631.
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                                                                               NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT




                                             No: 02-2860


                                  UNITED STATES OF AMERICA

                                                   v.

                                         BRUCE FORREST,
                                                    Appellant


                           On Appeal from the United States District Court
                               for the Eastern District of Pennsylvania

                        District Court Judge: The Honorable Jay C. Waldman
                                   (D.C. Civil No. 00-cr-00066-5)




                            Submitted Under Third Circuit L.A.R. 34.1(a)
                                         April 11, 2003

                      Before: ALITO, FUENTES, and PISANO* Circuit Judges

                                    (Opinion Filed: April 23, 2003)


                                     OPINION OF THE COURT




_________________
         *Honorable Joel A. Pisano, United States District Judge for the District of New
Jersey, sitting by designation.

FUENTES, Circuit Judge:
        Appellant Bruce Forrest (“Forrest”) appeals his mandatory sentence of 240 months

imprisonment imposed by the United States District Court for the Eastern District of

Pennsylvania pursuant to 21 U.S.C. § 841(b)(1)(A). Forrest claims that the District Court

should have departed downward from the statutory minimum sentence based on the age of

the prior conviction that triggered the enhanced penalty provision of § 841(b)(1)(A).

Because we conclude that the District Court lacked the authority to do so, we affirm the

Judgment of July 1, 2002, sentencing Forrest to 240 months imprisonment.

                                   I. Facts and Procedural History

        Because we write solely for the parties, our review of the factual background is

limited to that which is necessary to inform our opinion today. Between October 19, 1999

and January 14, 2000, Forrest and four co-defendants met with an undercover police

officer on approximately four occasions and sold him “crack” cocaine. Two of those sales

took place at 4804 Tackawanna Street in Philadelphia, which is located within 1,000 feet of

the Whitehall Public Housing Development.

        On May 3, 2000, Forrest appeared before the United States District Court for the

Eastern District of Pennsylvania and, pursuant to the terms of a written plea agreement,

pleaded guilty to one count of conspiracy to distribute “crack” cocaine, one count of

distribution of “crack” cocaine and aiding and abetting, and two counts of distribution of

“crack” cocaine within 1,000 feet of a public housing project. Forrest stipulated that he

distributed, or aided and abetted the distribution of, between 150 and 500 grams of “crack”

cocaine.

                                                    2
        At the time of sentencing, on June 27, 2002, the Government filed a Superseding

Information Charging Prior Offense based on a felony drug conviction entered by the

Philadelphia Court of Common Pleas on or about March 30, 1977. Because Forrest’s

offense involved more than 50 grams of “crack” cocaine and occurred after a separate

felony drug conviction, the District Court imposed the mandatory minimum sentence of

twenty years imprisonment under § 841(b)(1)(A).

                              II. Jurisdiction and Standard of Review

        The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We

exercise jurisdiction under 28 U.S.C. § 1291 over a final decision of a district court. As

Forrest neglected to raise this challenge at sentencing, we review the District Court’s

refusal to depart below the mandatory minimum sentence for plain error. United States v.

Couch, 291 F.3d 251, 252-53 (3d Cir. 2002).

                                            III. Discussion

        Forrest argues that just as a sentencing court may depart downward under the

sentencing guidelines if a defendant’s career offender status “overrepresents” his criminal

history, a sentencing court should also be permitted to depart from “other sentencing

mandates” that cause an “overrepresentation” of criminal history. Basically, Forrest claims

that, because his prior conviction from 1977 occurred so long ago, the District Court

should not have considered it in determining whether the mandatory minimum provision of

§ 841(b)(1)(A) applied to his case.

        Unlike the sentencing guidelines, § 841(b)(1)(A) provides no general authority for a

                                                    3
departure, nor any authority to depart based on the age of a prior conviction. Sentencing

courts may depart below the statutory mandatory minimum only if particular requirements

are met, including the condition that “the defendant does not have more than 1 criminal

history point, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f).

Unfortunately, Forrest fails to meet this requirement.

        Even if we were to agree that the resulting sentence imposed under § 841(b)(1)(A)

is harsh, “[w]e have no constitutional authority to adopt a new exception to the mandatory

minimum penalty requirements of 21 U.S.C. § 841, 844, and 846.” United States v.

Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995). “The Supreme Court [has] instructed

federal courts to resist the temptation to extend the reach of a statute beyond the express

intention of Congress, to avoid a harsh result.” Id. In sum, this Court lacks any basis on

which to reduce Forrest’s sentence.




                                             IV. Conclusion

        Accordingly, for the reasons stated above, we affirm the judgment of the District

                                                     4
Court.




             /s/ Julio M. Fuentes
                 Circuit Judge




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