NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2826 __________

UNITED STATES OF AMERICA

v.

SYLVESTER ANDREWS, also known as Kazime,

Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2:92-cr-00671-008) District Judge: Honorable Paul S. Diamond ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 15, 2023

Before: AMBRO ∗∗, KRAUSE, and SCIRICA, Circuit Judges

(Opinion filed: February 21, 2023)

___________

OPINION * ___________

∗∗ Judge Ambro assumed senior status on February 6, 2023. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Federal prisoner Sylvester Andrews appeals pro se from the District Court’s order

denying his motion for a sentence reduction under Section 404 of the First Step Act. For

the reasons that follow, we will affirm that judgment.

I.

In 1993, a federal jury found Andrews guilty of one count of conspiring to

distribute crack, one count of distributing crack, one count of distributing crack in a

school zone, two counts of possessing a firearm in furtherance of a drug trafficking crime

in violation of

(c), and two other firearm offenses. Under the version of

(b)(1) in effect at that time, distributing five grams or more of crack

triggered a mandatory minimum of five years in prison and a maximum of 40 years in

prison, while distributing 50 grams or more of crack triggered a mandatory minimum of

10 years in prison and a maximum of life. See United States v. Birt,

(3d Cir. 2020). At Andrews’s sentencing, the District Court determined that he

distributed 41.7 kilograms of crack, and that his applicable range under the then-

mandatory Sentencing Guidelines was life in prison. The District Court imposed that life

sentence, and it also imposed consecutive prison terms for his two § 924(c) offenses —

10 years in prison for the first one and 30 years in prison for the second one. We

affirmed that judgment on direct appeal. See United States v. Andrews,

(3d

Cir. 1995) (table).

In 2009, the District Court granted Andrews a sentence reduction under

(c)(2), reducing his life sentence to 30 years after determining that, due to an 2 intervening amendment to the Guidelines, his applicable range under the (now advisory)

Guidelines was 30 years to life. And in 2013, the District Court vacated the consecutive,

30-year prison term for his second § 924(c) offense after concluding that he was actually

innocent of that offense pursuant to intervening Supreme Court precedent. In view of

these developments, Andrews’s total prison sentence was now 40 years — the 30-year

term imposed under the amended Guidelines, plus the consecutive, 10-year term imposed

for the remaining § 924(c) offense.

In 2018, Congress enacted the First Step Act. See Concepcion v. United States,

, 2396 (2022). Section 404 of that statute “authorize[s] district courts to

‘impose a reduced sentence’ for qualifying movants ‘as if sections 2 and 3 of the Fair

Sentencing Act [of 2010] . . . were in effect at the time the covered offense was

committed.’”

(alteration added) (quoting First Step Act of 2018,

(b),

, 5222 (2018)); see also

(explaining that the

First Step Act does not require a district court to reduce a sentence). Section 2 of the Fair

Sentencing Act “increased the drug amounts triggering mandatory minimums for crack

trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from

50 grams to 280 grams in respect to the 10-year minimum).” Dorsey v. United States,

(2012).

In 2019, Andrews filed a pro se motion in the District Court, seeking to reduce his

sentence pursuant to Section 404 of the First Step Act. The Government opposed the

motion, arguing that Andrews was ineligible for such a reduction because the amount of

crack found by the District Court at sentencing — 41.7 kilograms — exceeded even the 3 new, 280-gram threshold for triggering the 10-year mandatory minimum and the

maximum sentence of life. The District Court subsequently appointed Andrews counsel,

who supplemented his motion. The District Court then stayed the proceedings pending

our resolution of United States v. Jackson, C.A. No. 19-2499.

In 2020, we decided Jackson, holding that a prisoner’s eligibility under Section

404 “turns on [his] statute of conviction rather than his actual conduct.”

(3d Cir. 2020). The District Court then lifted the stay in Andrews’s case. In view of

Jackson, the Government conceded that Andrews is indeed eligible for a sentence

reduction under Section 404. However, the Government argued that the District Court

should deny that relief in its discretion. The District Court ultimately did just that; in

September 2022, it denied a sentence reduction in its discretion after weighing the

(a) sentencing factors. The District Court observed that Andrews’s

offenses in this case “were obviously quite serious,” 1 and that “[h]is criminal record is

1 The District Court explained that Andrews had been a “shift worker” and “enforcer” for Zulu Nation, “an organization that employed guns and violence to manufacture and distribute crack throughout significant portions of North Philadelphia.” (Dist. Ct. Order entered Sept. 9, 2022, at 4-5 [hereinafter Dist. Ct. Order].) The District Court highlighted the 41.7 kilograms of crack that were deemed attributable to Andrews. The District Court, quoting his Presentence Report, also highlighted the following: (1) Andrews “conspired to purchase a bomb which was later affixed to a washing machine in [an abandoned] house [controlled by the Zulu Nation] so that it would detonate if discovered by intruders”; and (2) at one point during the drug-trafficking conspiracy, Andrews and another individual, “as directed by a leader of Zulu, had 811 vials of crack and a sawed- off shotgun at the [aforementioned house].” (Id. at 5.)

Under controlling authority in effect at the time of Andrews’s sentencing, the District Court had the authority to make a finding as to the amount of crack attributable to Andrews. See United States v. Chapple,

(3d Cir. 1993). However, several years later, the Supreme Court held that, “[o]ther than the fact of a prior 4 equally serious: five juvenile adjudications and three adult convictions for crimes

ranging from robbery and aggravated assault to burglary and forgery.” (Dist. Ct. Order

5.) The District Court explained that “Andrews’ history and characteristics, the nature

and seriousness of his offenses, the need for general deterrence, and the need to provide

just punishment weigh heavily against reducing his sentence,” (id.), and that these factors

outweighed his good behavior while in prison. 2

Andrews, proceeding pro se, now appeals from the District Court’s denial of his

First Step Act motion.

II.

We have jurisdiction over this appeal pursuant to

. Where, as

here, a district court determines that a movant is eligible for a sentence reduction under

the First Step Act but denies such a reduction, we review that decision for abuse of

discretion. See United States v. Shields,

(3d Cir. 2022). 3 Because the

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey,

(2000). Although Apprendi does not apply retroactively to cases on collateral review, see United States v. Swinton,

(3d Cir. 2003), the District Court recognized here that it could “consider the impact Apprendi would have had on his statutory range in determining whether to grant relief under Section 404,” (Dist. Ct. Order 4 (internal quotation marks omitted)); see also Concepcion, 142 S. Ct. at 2404 (“hold[ing] that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act”). 2 The District Court acknowledged that Andrews “has had no infractions since 2012,” that “[h]e is currently employed in the prison kitchen, where he interacts with staff and other inmates,” and that he “has completed his GED and numerous other courses while incarcerated.” (Dist. Ct. Order 5.) 3 To the extent that this appeal raises legal questions, we review those questions under a 5 First Step Act affords district courts “broad” discretion, our review is deferential. See

Concepcion, 142 S. Ct. at 2404. Indeed, as the Supreme Court has explained, “[o]ther

than legal errors in recalculating the Guidelines to account for the Fair Sentencing Act’s

changes, appellate review [in this context] should not be overly searching.” Id. (citation

omitted).

In this case, we cannot conclude that the District Court erred in denying

Andrews’s First Step Act motion. For one thing, his bald attack on the District Court’s

recalculation of his Guidelines range lacks merit. The Supreme Court has explained that

“[a] district court cannot . . . recalculate a movant’s benchmark Guidelines range in any

way other than to reflect the retroactive application of the Fair Sentencing Act.” Id. at

2402 n.6. The District Court did not run afoul of that principle in Andrews’s case, and

we see no error in the District Court’s determination that his applicable Guidelines range

remained 360 months to life.

To the extent that Andrews contends that the District Court’s reasoning in its

decision was insufficient, we find this argument unpersuasive. To be sure, when deciding

First Step Act motions, district courts have an obligation “to explain their decisions and

demonstrate that they considered the parties’ arguments.” Id. at 2404. But this

obligation does not require a district court “to expressly rebut each argument made by the

parties” or “articulate anything more than a brief statement of reasons.” Id. (internal

quotation marks omitted). Having carefully reviewed the District Court’s six-page order

plenary standard. See Birt,

n.2. 6 denying Andrews’s First Step Act motion, we are convinced that the District Court

fulfilled its obligation to explain its decision and demonstrate that it considered the

parties’ arguments.

We have examined the remaining arguments raised in Andrews’s opening brief

and conclude that none of them entitles him to relief here. 4 To the extent that he raises

arguments for the first time in his reply brief, we deem those arguments forfeited. See

United States v. Scarfo,

, 210 n.83 (3d Cir. 2022).

In view of the above, we will affirm the District Court’s order denying Andrews’s

First Step Act motion.

4 Although Andrews argues that this case should be remanded “to an unbiased judge,” (Andrews’s Opening Br. 5), he has not put forth, and we do not otherwise see, any evidence indicating that the District Judge who ruled on his First Step Act motion is biased against him. 7