NOT PRECEDENTIAL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

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

March 8 , 2021 Before: SMITH, Chief Judge , M c KEE, and AMBRO, Circuit Judges

(Filed : April 8, 2021 )

__________________________

OPINION *

__________________________

* This disposition is not an opinion of the full C ourt 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 Cour t 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 40 4 (b) of the First Step Act

. We have appellate jurisdiction
under 28 U.S.C. § 1291. 1 2 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. T he District Court sentenced Forbes to an aggregate term of 600 months imprisonment, which this Court affirmed on appeal. See United State s 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, 32 2 (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 de ny a motion brought under the First Step Act upon consideration of § 3553(a) factors . H owever , several of our sister c ircuits 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 g rant 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 State s v. Forbes , 258 F. App’x 417 (3d Cir. 2007) (affirming post

- Booker sentence) , cert. denied , 552 U.S. 1267 (2008)

. In February 2 016 , Forbes moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing Guidelines

. T he District Court denied the
motion

. Subsequently, Forbes moved for a sentence reduction pursu ant to S ection 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 reduc ing
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

sentenc ing range of ten years to life. With the passage of the First Step Ac t , 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 reduce d advisory Guidelines range lacks merit. The District Court ruled that Forbes was eligible for a sentence reduction under S ection 404 of the First Step Act , and
also acknowledged the applicability of a reduced advisory G uidelines 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 co vered 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 th an 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 n umerous 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 l ength as that which was originally imposed does not mean that the District Court failed to reconsider the § 3553(a) factors. We, t herefore, find no error in
the District C ourt’s discretionary determination that a sentence reduction was not
warranted. 2 3

W e 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 redu ce 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, hi s recidivism, and continued refusal to show remorse, the Court believed Forbes continu ed to present a danger to the community.