NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 20-1943

_______________________

UNITED STATES OF AMERICA

v.

MICHAEL D. FORBES, 

a/k/a Fats,

 Appellant

______________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

District Court No. 1-03-cr-00250-001

District Judge: The Honorable Christopher C. Conner

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Submitted Under Third Circuit L.A.R. 34.1(a)

March 8, 2021

Before: SMITH, Chief Judge, McKEE, and AMBRO, Circuit Judges

(Filed: April 8, 2021)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

SMITH, Chief Judge.

This matter comes before the Court on Michael D. Forbes’s appeal of the District 

Court’s April 20, 2020 denial of his Motion for a Sentence Reduction pursuant to Section 

404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. We will affirm 

for the reasons that follow.

I.

The District Court had subject matter jurisdiction over Forbes’s original offense 

under 18 U.S.C. § 3231 and jurisdiction to reduce Forbes’s sentence under 18 U.S.C. 

§ 3582(c)(1)(B) and Section 404(b) of the First Step Act. We have appellate jurisdiction 

under 28 U.S.C. § 1291.12

In July 2004, a jury found Forbes guilty of, inter alia, distribution and possession 

with intent to distribute crack cocaine and conspiracy to do the same. The District Court 

sentenced Forbes to an aggregate term of 600 months imprisonment, which this Court 

affirmed on appeal. See United States v. Forbes, 164 F. App’x 251 (3d Cir. 2006) 

1

In United States v. Easter, we addressed whether a district court must consider the 

§ 3553(a) factors anew when exercising its discretion to reduce a defendant’s sentence 

pursuant to a motion brought under § 404(b) of the First Step Act. See 975 F.3d 318, 322 

(3d Cir. 2020). Noting that “the issue to be resolved is one of statutory interpretation,” we 

employed a de novo standard of review. Id. We have not yet determined the standard for 

reviewing a district court’s decision to deny a motion brought under the First Step Act upon 

consideration of § 3553(a) factors. However, several of our sister circuits have reviewed 

such decisions for abuse of discretion. See United States v. Jackson, 945 F.3d 315, 319, 

n.2 (5th Cir. 2019) (recognizing the similarities between § 404(b) of the First Step Act and 

18 U.S.C. § 3582(c)(2)); see also United States v. McDonald, 944 F.3d 769, 771 (8th Cir. 

2019) (explaining that a defendant’s eligibility is reviewed de novo whereas the district 

court’s decision to grant or deny a sentence reduction is reviewed for abuse of discretion). 

We need not decide that issue here because we find no error in the District Court’s analysis. 
3

(affirming conviction but remanding for resentencing in light of the Supreme Court’s 

decision in United States v. Booker, 543 U.S. 220 (2005)); see also United States v. Forbes, 

258 F. App’x 417 (3d Cir. 2007) (affirming post-Booker sentence), cert. denied, 552 U.S. 

1267 (2008).

In February 2016, Forbes moved for a sentence reduction pursuant to 18 U.S.C. 

§ 3582(c) and Amendment 782 to the Sentencing Guidelines. The District Court denied the 

motion. Subsequently, Forbes moved for a sentence reduction pursuant to Section 404(b) 

of the First Step Act. The District Court acknowledged that Forbes was eligible for a 

sentence reduction under the Act, but it declined to exercise its discretion by reducing

Forbes’s sentence. Upon denial of this second motion, Forbes appealed.

II.

Under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), 

Congress increased the quantity of crack-cocaine necessary to trigger the statutory 

sentencing range of ten years to life. With the passage of the First Step Act, defendants 

who were sentenced under a statute that the Fair Sentencing Act amended became eligible 

to seek a sentence reduction.

Forbes’s argument that the District Court failed to recalculate and give sufficient 

weight to his reduced advisory Guidelines range lacks merit. The District Court ruled that 

Forbes was eligible for a sentence reduction under Section 404 of the First Step Act, and 

also acknowledged the applicability of a reduced advisory Guidelines range. But the Court

correctly noted that mere eligibility does not require a sentence reduction because district 

courts maintain discretion as to whether to grant such motions. See Pub. L. No. 115-391, § 
4

404(b), 132 Stat. 5194, 5222 (“A court that imposed a sentence for a covered offense may,

on motion of the defendant . . . impose a reduced sentence . . . .”) (emphasis added).

The District Court then permissibly declined to exercise its discretion to reduce 

Forbes’s sentence, noting that Forbes’s criminal history, rather than the quantity of drugs 

he trafficked, gave impetus to his 600-month sentence. In arriving at that conclusion, the 

District Court considered numerous relevant factors, including that Forbes began the 

criminal enterprise for which he is currently incarcerated mere months after he was paroled 

for a manslaughter conviction; engaged in numerous violent acts while exercising control 

over his criminal organization; committed a litany of infractions while incarcerated; and 

refused to express remorse for his conduct. The mere fact that these considerations resulted 

in a sentence of the same length as that which was originally imposed does not mean that 

the District Court failed to reconsider the § 3553(a) factors. We, therefore, find no error in 

the District Court’s discretionary determination that a sentence reduction was not

warranted.23

We will affirm the District Court’s April 20, 2020 Order. 

2 We also do not take issue with the District Court’s declining the opportunity to reduce 

Forbes’s effective life sentence. The District Court acknowledged that a 600-month 

sentence was substantial; however, in light of Forbes’s serious criminal conduct, his

recidivism, and continued refusal to show remorse, the Court believed Forbes continued to 

present a danger to the community.