United States v. Andrea Forsythe

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2112
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UNITED STATES OF AMERICA
v.
ANDREA FORSYTHE,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2-14-cr-00291-001)
District Judge: Honorable Cathy Bissoon
Submitted Under Third Circuit L.A.R. 34.1(a)
January 26, 2023
BEFORE: BIBAS, NYGAARD, and FUENTES, Circuit Judges
(Filed: March 21, 2023)
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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.
NYGAARD, Circuit Judge.
Appellant Andrea Forsythe appeals her criminal sentence. We will affirm.
I.
Forsythe and two comrades were caught using the mail to smuggle buprenorphine
(Suboxone), a Schedule III controlled substance, into a federal prison. She was indicted
on two counts: possession with intent to distribute and distribution of a controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(E)(i) (Count 1), and
conspiracy to commit that offense, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(E)(i) (Count 2). At the time, she was on supervised release from her previous
federal convictions for malicious destruction of property by fire, 18 U.S.C. § 844(i), and
wire fraud, 18 U.S.C. § 1343, for a scheme to burn down her home and claim insurance
proceeds. These new offenses violated the standard condition of her supervised release
that she abstain from committing another federal crime. 18 U.S.C. § 3583(d). She
admitted to the conduct of a controlled substance violation in Count 1 and pleaded guilty
to conspiracy in Count 2. The Government then dismissed Count 1.
The District Court held a combined sentencing hearing for both the new criminal
charge and the supervised release violation. For Count 2, the Court sentenced her to 9
months’ imprisonment. It then examined her supervised release violation. In revocation
proceedings, a district court considers the grade of violation—A, B, or C. See U.S.S.G.
§§ 7B1.1–1.4. That influences the United States Sentencing Guidelines’ recommended
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sentencing range: a Grade B violation produces a sentence of 8 to 14 months, while a
Grade A violation produces one of 18 to 24 months. 1
Forsythe argued that her new conviction should constitute a Grade B violation, but
the District Court held she had committed a Grade A violation. That, with a criminal
history category of III, yielded an advisory guideline sentencing range of 18 to 24
months’ imprisonment. The court varied downward, imposing 9 months’ imprisonment
on the supervised release revocation, consecutive to her new conviction’s sentence, for 18
months’ imprisonment in total.
II.
Forsythe timely appealed the sentence for her supervised release violation only. 2
In scrutinizing a sentence imposed, “we review a district court’s legal conclusions
regarding the Guidelines de novo, its application of the Guidelines to the facts for abuse
of discretion, and its factual findings for clear error.” United States v. Blackmon, 557
F.3d 113, 118 (3d Cir. 2009) (internal citations omitted). See also United States v. Tomko,
562 F.3d 558, 564 (3d Cir. 2009) (en banc) (reviewing for procedural reasonableness).
Forsythe’s appeal misunderstands revocation of supervised release. Her sole
argument is that her sentence was procedurally unreasonable because the District Court
improperly calculated her advisory Guidelines’ range. She argues that she should not
1
All references to the United States Sentencing Commission Guidelines Manual are to
the version effective November 1, 2018, the version in effect for Forsythe’s sentencing
hearing. See U.S.S.G. § 1B1.11(a).
2
The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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have received a Grade A violation because her conviction for conspiracy does not count
as a controlled substance offense. She says that because the Guidelines’ chapter covering
revocation does not define the term, we must look to its commentary, which defines the
term by cross-reference to another chapter. Compare U.S.S.G. § 7B1.1(a)(1)(A)(ii) with §
7B1.1 cmt. n.3; § 4B1.2. We have held that the term controlled substance offense in that
chapter does not include inchoate offenses such as conspiracy. United States v. Nasir, 17
F.4th 459, 472 (3d Cir. 2021) (en banc). Thus, she argues her conspiracy conviction
could not support a Grade A violation; instead, she should have received a Grade B
violation, an error that would warrant resentencing. But “[i]n the revocation
context,…district courts may consider a defendant’s actual conduct in determining
whether they have broken the law and thus the terms of their supervised release.” United
States v. Carter 730 F.3d 187, 192 (3d Cir. 2013). That means her conviction is not
determinative.
Considering Forsythe’s admitted conduct, we agree that the District Court
properly found that she had committed a Grade A violation. A Grade A violation is
triggered by “conduct constituting…a federal, state, or local offense punishable by a term
of imprisonment exceeding one year that…is a controlled substance offense.” U.S.S.G.
§ 7 B1.1(a)(1)(A)(ii). Evidence before the District Court supports that she committed the
federal controlled substance offense of possession with intent to distribute and
distribution, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(E)(i), including information adduced
at the sentencing hearing, her sentencing memorandum, the presentence report, its
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addendum, and other submissions by the United States Probation Office. 3 Therefore, a
preponderance of the evidence supports that she violated the condition of her supervised
release that she refrain from breaking federal law. See 18 U.S.C. § 3583(e)(3); Carter,
730 F.3d at 190.
***
We will affirm the decision of the District Court.
3
The Government’s unopposed motion to file a supplemental appendix under seal and to
supplement the record is granted. See 3d Cir. L.A.R. 30.3(b) & (c); 3d Cir. L.A.R. Misc.
106.1(c)(1).
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