12-2439-cr
United States v. Marrero (Forde)

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
31st day of May, two thousand thirteen.

Present:
            RALPH K. WINTER,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
____________________________________________________

United States of America,

                          Appellee,

                 v.                                                           No. 12-2439-cr

Orande Forde,

                          Defendant-Appellant,

Nelson Marrero, et al.,

                  Defendants.
____________________________________________________

FOR APPELLANT:                     Andrew M. St. Laurent, Harris, O’Brien, St. Laurent &
                                   Houghteling LLP, New York, NY.



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FOR APPELLEE:           PETER M. SKINNER, ASSISTANT UNITED STATES ATTORNEY
                        (Katherine Polk Failla, Assistant United States Attorney, on the
                        brief), for Preet Bharara, United States Attorney for the Southern
                        District of New York, New York, NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Rakoff, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Orande Forde appeals from the district court’s June 2012 order

denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment

750 to the Sentencing Guidelines. On appeal, Forde concedes that (1) in originally sentencing

him to 144 months’ imprisonment, the district court departed and varied downward from the

applicable Guidelines range for reasons other than his having provided substantial assistance to

the Government; (2) the amended Guidelines range resulting from application of Amendment

750 is 168 to 210 months’ imprisonment; and, therefore (3) as amended in November 2011,

U.S.S.G. § 1B1.10(b)(2)(A) precluded the district court from reducing his sentence below the

amended Guidelines range. Forde argues, nonetheless, that the Sentencing Commission

exceeded its authority by amending § 1B1.10 generally to prohibit courts from re-imposing

departures and variances that had been imposed in determining a defendant’s original sentence.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the specific issues raised on appeal.

       Although we generally review a district court’s decision to grant or deny a § 3582(c)(2)

motion for abuse of discretion, see United States v. Borden, 

, 104 (2d Cir. 2009),

the questions of law raised in this appeal are reviewed de novo, see United States v. Main, 579



                                                 

, 202-03 (2d Cir. 2009). As Forde conceded at oral argument, his arguments are

squarely foreclosed by our recent decisions in United States v. Erskine and United States v.

Steele, both of which were issued after his appeal had been fully briefed. See United States v.

Erskine, ---F.3d---, No. 12-921, 

, at *5-8 (2d Cir. May 23, 2013); United

States v. Steele, ---F.3d---, No. 12-1072, 

, at *2 (2d Cir. May 9, 2013) (per

curiam). In short, the above cases establish that (1) the district court correctly denied Forde’s

§ 3582(c)(2) motion on the ground that pursuant to § 1B1.10(b)(2)(A) it lacked the authority to

reduce his sentence below the amended Guidelines range; and (2) Forde’s arguments that the

Commission impermissibly enacted the relevant amendment to § 1B1.10 are unavailing. See

Steele, 

, at *2 (“[T]he provisions of § 1B1.10 of the Guidelines, as

incorporated by § 3582(c)(2), require a resentencing court to apply the amended Guidelines

range that would have been applicable to a defendant, without applying any departures other than

one granted upon appropriate motion by the government based on a defendant’s substantial

assistance.”) (first emphasis added); Erskine, 

, at *5-8 (holding that, in

enacting the relevant amendment to § 1B1.10, the Commission neither exceeded its authority

under the Sentencing Reform Act nor unduly interfered with judicial discretion in sentencing).

       We have considered Forde’s remaining arguments on appeal and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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