UNITED STATES of America, Appellee, v. Orande FORDE, Defendant-Appellant, Nelson Marrero, et al., Defendants, 519 F. App'x 12

SUMMARY ORDER 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. § lB1.10(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, 564 F.3d 100, 104 (2d Cir.2009), the questions of law raised in this appeal are reviewed de novo, see United States v. Main, 579 F.3d 200, 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, 717 F.3d 131, 136-40 (2d Cir.2013); United States v. Steele, 714 F.3d 751, 753-55 (2d Cir.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 § lB1.10(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, 714 F.3d at 753 (“[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, 717 F.3d at 136-40 (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.