                       NOT RECOMMENDED FOR PUBLICATION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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