09-1011-cr
U nited States v. Forbes



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10 th day of August, two thousand ten.

PRESENT:               ROBERT D. SACK,
                       REENA RAGGI,
                       GERARD E. LYNCH,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                        Appellee,
               v.                                                                      No. 09-1011-cr

DENNIS FORBES,
                                                 Defendant-Appellant.
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FOR APPELLANT:                                   Jonathan I. Edelstein, New York, New York.

FOR APPELLEE:                                    Frank H. Sherman, Assistant United States Attorney, for
                                                 William J. Hochul, Jr., United States Attorney, Western
                                                 District of New York, Rochester, New York.

           Appeal from the United States District Court for the Western District of New York

(Charles J. Siragusa, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s judgment entered on July 14, 2008, is AFFIRMED.

       Dennis Forbes, who is serving a life sentence for (1) conspiring to traffic in marijuana

and fifty grams or more of cocaine base (“crack cocaine”), see 21 U.S.C. §§ 841(b)(1)(A),

846; and (2) using a minor to do so, see id. §861, now appeals from the denial of his motion

for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).1 Because this appeal turns on

an issue of statutory interpretation, we review the district court’s decision de novo. See

United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009). In doing so, we assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       “A district court may not generally modify a term of imprisonment once it has been

imposed.” United States v. McGee, 553 F.3d 225, 226 (2d Cir. 2009) (alteration and internal

quotation marks omitted). Under 18 U.S.C. § 3582(c)(2), however, a district court may grant

a reduction if the defendant “has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing Commission . . . if

such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Forbes submits that the district court erred in concluding that it lacked
       1
         Although Forbes concedes that his notice of appeal was not timely filed, he urges
that we excuse that defect because it resulted from his counsel’s ineffectiveness. We need
not address that argument because even assuming no defect in Forbes’s notice of appeal, he
would not be entitled to the relief he seeks. See Abimbola v. Ashcroft, 378 F.3d 173, 180
(2d Cir. 2004) (noting that court may exercise hypothetical jurisdiction where jurisdictional
question presented is statutory, not constitutional).

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authority to reduce his sentence in light of Commission Amendment 706 to the Sentencing

Guidelines, which “provide[s] a two-level reduction in base offense levels for crack cocaine

offenses” and was made retroactive by Amendment 713. United States v. McGee, 553 F.3d

at 226 & n.1. Forbes does not dispute that a reduction in his offense level from 45 to 43

produced no change in his recommended Guidelines range of life imprisonment. Nor does

he dispute that the policy statement applicable to the crack cocaine amendments provides

that, except in circumstances not here relevant, “the court shall not reduce the defendant’s

term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that

is less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).

Rather, he contends that United States v. Booker, 543 U.S. 220 (2005), required the district

court to treat this policy statement as only advisory.

       Forbes’s argument is foreclosed by Dillon v. United States, 130 S. Ct. 2683 (2010),

in which the Supreme Court observed that because § 3582(c) “authorize[s] only a limited

adjustment to an otherwise final sentence and not a plenary resentencing proceeding,”

modification of a sentence pursuant to that provision “do[es] not implicate the interests

identified in Booker.” Id. at 2691-92. In Dillon, the Court rejected a defendant’s Sixth

Amendment challenge to a district court’s conclusion that its § 3582(c) reduction authority

was limited to that specified in U.S.S.G. § 1B1.10(b)(2)(A), i.e., a sentence within the

amended Guidelines range.       See id. at 2692. Before Dillon, this court had similarly

construed § 3582(c) and U.S.S.G. § 1B1.10(b)(2)(A) in United States v. Savoy, which held


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that a court “lack[ed] the authority when reducing a sentence pursuant to § 3582(c)(2) to

reduce that sentence below the amended Guidelines range where the original sentence fell

within the applicable pre-amendment Guidelines range.” 567 F.3d 71, 74 (2d Cir. 2009).

         Applying these precedents, we identify no error in the district court’s denial of

Forbes’s motion for a reduction in sentence because his amended Guidelines range, like his

pre-amendment Guidelines range, provided for a single sentence: life imprisonment.

         We have considered Forbes’s other arguments on appeal and conclude that they are

without merit. For the foregoing reasons, we AFFIRM the July 14, 2008 order of the district

court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court




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