United States v. Frederick Anthony Forbes

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12126

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDERICK ANTHONY FORBES,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 1:22-cr-00029-AW-MAL-1

____________________

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2 Opinion of the Court 24-12126

Before LAGOA, ED CARNES, and WILSON, Circuit Judges.

PER CURIAM:

A jury found Frederick Forbes guilty of possessing with the

intent to distribute 500 grams or more but less than 5 kilograms of

a mixture and substance containing cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), and of conspiracy to distrib-

ute that amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(ii), and 846. He was sentenced to 168 months impris-

onment to be followed by 10 years of supervised release.

Forbes challenges his convictions on two grounds and his

sentence on four grounds. Neither of his challenges succeeds.

I. The Convictions

A. Admission of Agent Grasso’s Testimony

During the investigation in this case, phone calls between

Forbes and others were intercepted and recorded. Some of the re-

cordings were played at trial. Agent Grasso testified about them,

telling the jury, among other things, that some of what was being

said in the conversations was coded language relating to drug trans-

actions and what that coded language actually meant. Forbes con-

tends that the district court abused its discretion by allowing, over

his objection, that testimony.

Here are the particulars. The government asked Agent

Grasso whether, based on monitoring the calls and her investiga-

tion, she believed that some of the language used in the calls might

be coded. Forbes objected based on lack of foundation. The district

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24-12126 Opinion of the Court 3

court overruled that objection, telling counsel in a sidebar that the

agent had listened to all the tapes and knew “what they are doing

and what they are not doing.”

After the court overruled Forbes’ objection, the government

asked Agent Grasso about particular terms that were used during

the conversations. She testified that Forbes’ question to his code-

fendant Michael Sheppard about whether he “had a chance to go

out on that date yet” (even though they had not discussed relation-

ships or dates in any earlier communications) was coded language.

She told the jury that the use of terms such as “22nd Avenue” and

“Michael Jordan[’s] number” (23) were coded language referring to

prices. She also testified that “a cumulative review of these calls in

this investigation” led her to determine that references to “appoint-

ments” referred to drugs. Her testimony was based on Agent

Grasso’s 20 years of experience at the DEA and her investigation of

this particular case.

Forbes argues here, as he did in the district court, that there

was an inadequate foundation for Agent Grasso’s testimony about

the use of coded terms. We review the district court’s ruling on

this issue only for abuse of discretion. See United States v. Jeri, 869

F.3d 1247, 1265 (11th Cir. 2017). Federal Rule of Evidence 602 pro-

vides that “[a] witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness has per-

sonal knowledge” of it. Fed. R. Evid. 602. And “the witness’s own

testimony” may establish personal knowledge. Id.

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4 Opinion of the Court 24-12126

There was a firm foundation for Agent Grasso’s testimony.

Not only did she have two decades of experience as a DEA agent,

she was one of the investigating officers on the case and had per-

sonally reviewed the transcripts of all the intercepted phone calls.

The district court did not abuse its discretion by overruling Forbes’

lack of foundation objection.

Forbes also argues for the first time on appeal that the court

erred by allowing Agent Grasso to testify, in effect, as an expert

witness even though she had not been qualified as one. Because

Forbes didn’t object on this ground in the district court, our review

is for plain error only. See United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007). To establish plain error, Forbes must show “that

the district court made an error, that the error was plain, and that

it affected his substantial rights.” United States v. Iriele, 977 F.3d

1155, 1177 (11th Cir. 2020). “If he carries that burden, we have dis-

cretion to reverse — but only if the error seriously affects the fair-

ness, integrity, or public reputation of judicial proceedings.” Id.

The Federal Rules of Evidence distinguish between expert

and lay opinion testimony. Expert opinion is based on “scientific,

technical, or other specialized knowledge.” Fed. R. Evid. 702(a).

Expert witnesses must be properly “qualified,” and their opinions

are admissible only if certain reliability requirements are met. See

Fed. R. Evid. 702. Lay opinion testimony, by contrast, may not be

“based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Fed. R. Evid. 701. It must be “ra-

tionally based on the witness’s perception,” as well as being

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“helpful to clearly understanding the witness’s testimony or to de-

termining a fact in issue.” Id.

Professional experience is not off limits as a basis for lay

opinion testimony. A lay witness may offer testimony based on her

professional experience if the testimony “is rationally based on”

that experience, instead of being based “on scientific or technical

knowledge.” United States v. Williams, 865 F.3d 1328, 1341 (11th

Cir. 2017) (quotation marks omitted). For example, we have held

that coast guard officers properly offered lay opinion testimony

that the objects they had seen thrown overboard from a boat “re-

sembled cocaine bales found in previous drug interdictions.” Id.

And we’ve held that an agent’s testimony about the use of code

words was properly admitted as lay testimony when he based his

opinion on “what he learned during this particular investigation,

and he testified that he interpreted code words based on their con-

text.” United States v. Jayyousi, 657 F.3d 1085, 1104 (11th Cir. 2011).

The district court did not err, much less plainly err, in allow-

ing Agent Grasso to testify as a lay witness about her understanding

of the coded use of language in the intercepted phone conversa-

tions. Her testimony was not based on scientific or technical

knowledge. Instead, it was based on her personal knowledge and

experience gained as an investigator in this case who had reviewed

the intercepted communications and reached conclusions about

what the participants were discussing. See id. She testified that she

had “reviewed all the calls in this investigation.” And she testified

that she paid attention to “who the individuals are, what they’re

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6 Opinion of the Court 24-12126

discussing, how they’re discussing it, the change in their voice, the

tone of their voice,” and “what other calls have taken place prior

to that call.” The district court did not plainly err in allowing her

testimony about “what [s]he learned during this particular investi-

gation” and about how she “interpreted code words based on their

context” and her personal knowledge and experience. Jayyousi, 657

F.3d at 1104.

B. Denial of the Motion for Acquittal or New Trial

Forbes also challenges the denial of his motion for judgment

of acquittal or alternatively for a new trial. He contends that the

evidence was insufficient to convict him of possession with intent

to distribute cocaine and conspiracy to distribute it.

We review de novo the sufficiency of the evidence to support

Forbes’ convictions, “viewing the evidence in the light most favor-

able to the verdict and drawing all reasonable inferences and cred-

ibility choices in the verdict’s favor.” United States v. Godwin, 765

F.3d 1306, 1319 (11th Cir. 2014) (quotation marks omitted). We will

not overturn the jury’s verdict if there is any reasonable construc-

tion of the evidence that would have allowed a jury to find the de-

fendant guilty beyond a reasonable doubt. See id. at 1319–20. We

review only for an abuse of discretion a district court’s denial of a

new trial. United States v. Cox, 995 F.2d 1041, 1044 (11th Cir. 1993).

1. The Sufficiency of the Evidence that Forbes

Possessed Cocaine with the Intent to Distribute It

For Forbes’ conviction under 21 U.S.C. § 841(a)(1), the gov-

ernment had to prove that he knowingly possessed a controlled

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24-12126 Opinion of the Court 7

substance and intended to distribute it. United States v. Woodard,

531 F.3d 1352, 1360 (11th Cir. 2008). Intent to distribute may be

inferred from the quantity of drugs seized. United States v. Hernan-

dez, 433 F.3d 1328, 1333 (11th Cir. 2005). And we have recognized

that “[a] reasonable jury could infer from the quantity of drugs

seized that a ‘prudent smuggler’ is not likely to entrust such valua-

ble cargo to an innocent person without that person’s knowledge.”

United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997).

Possession of the drugs may be actual or constructive. Her-

nandez, 433 F.3d at 1333. A defendant constructively possesses a

controlled substance if he has “ownership, dominion, or control”

over the drugs or “over the premises or vehicle” where they are

concealed. Id.

During a traffic stop officers seized two kilograms of cocaine

that they found in a storage compartment behind the passenger

seat in Forbes’ tractor-trailer truck. The evidence at trial estab-

lished that on September 19, 2022, Forbes spoke with Sheldon

Carey, one of his codefendants who would later plead guilty.

Forbes told Carey that he wanted to purchase truck “parts.” The

next day Forbes talked to Carey again and asked about the “rates”

for the parts. Carey responded “22nd Avenue,” which Forbes him-

self testified was “lingo” for a price of $2,200, although he told the

jury it was for truck parts, not drugs. The day after that, Forbes

met with Carey, who picked him up near a Walmart. When Carey

dropped him off and he got back into his truck, Forbes had a brown

paper bag.

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8 Opinion of the Court 24-12126

On September 22, the day after Forbes’ meeting with Carey,

officers stopped Forbes while he was driving his truck, and they

found in it two kilograms of cocaine packaged in plastic. Carey’s

fingerprint was on one of the packages of cocaine found in Forbes’

truck. No truck parts were found anywhere in the truck.

Challenging the jury’s verdict against him, Forbes points to

his trial testimony that he didn’t know the cocaine was in his truck.

He admits that he met with Carey the day before the cocaine was

seized, that officers conducting surveillance saw Carey give him a

bag, and that Carey’s fingerprint was on one of the packages of co-

caine that the officers seized. But he argues that after he met with

Carey, his truck was parked in Miami overnight, and anyone could

have put two kilos of cocaine in there without his knowledge.

The jury was free to make a credibility determination and

reject Forbes’ position that he did not know the cocaine was in his

truck. See United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005)

(“[W]e are bound by the jury’s credibility determinations, and by

its rejection of the inferences raised by the defendant.”). The jury

did not believe Forbes’ “innocent explanations” for his statements

and conduct. See Hernandez, 433 F.3d at 1334. And there’s no good

reason it should have.

The evidence established that Forbes had ownership, do-

minion, and control over his truck, where the cocaine was seized,

and over the cocaine, which was located in a storage compartment

behind the passenger seat of the truck. See id. at 1333. Forbes

owned the truck, was driving it, and was the only person in it when

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24-12126 Opinion of the Court 9

officers stopped it. And the jury could infer from the large quantity

of drugs seized “that a ‘prudent smuggler’” would not have en-

trusted “such valuable cargo to an innocent person without that

person’s knowledge.” Quilca-Carpio, 118 F.3d at 722. Based on the

amount of cocaine Forbes had in his truck, the jury could also rea-

sonably infer his intent to distribute it. See Hernandez, 433 F.3d at

1333 (holding that evidence of two kilograms of cocaine was suffi-

cient to support the jury’s finding of the defendant’s intent to dis-

tribute the drugs).

Ample evidence supports the jury’s finding that Forbes was

guilty of knowingly possessing the cocaine with the intent to dis-

tribute it. The district court did not err by denying Forbes’ motion

for a judgment of acquittal on that count nor did it abuse its discre-

tion by denying him a new trial.

2. The Sufficiency of the Evidence that Forbes Conspired

To Possess Cocaine with the Intent to Distribute It

Forbes also challenges the sufficiency of the evidence to sup-

port his conviction under 21 U.S.C. §§ 841(a)(1) and 846 for know-

ingly and willfully conspiring with codefendant Michael Sheppard

and others to possess with intent to distribute a controlled sub-

stance, namely a mixture and substance containing a detectable

amount of cocaine. To convict him of that crime, the government

was required to prove (1) an illegal agreement existed to possess

with intent to distribute cocaine; (2) Forbes knew of the agree-

ment; and (3) he knowingly and voluntarily joined it. See United

States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002).

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10 Opinion of the Court 24-12126

The evidence must show more than “a simple buyer-seller

controlled substance transaction” that “support[s] the buyer’s per-

sonal drug habit.” United States v. Achey, 943 F.3d 909, 917 (11th

Cir. 2019). Evidence that “allows an inference that the buyer and

seller knew the drugs were for distribution” is enough to support a

conspiracy conviction. Id. And the existence of a conspiracy may

be inferred “when the evidence shows a continuing relationship

that results in the repeated transfer of illegal drugs to the pur-

chaser” or “from a drug transaction where the amount of drugs al-

lows an inference of a conspiracy to distribute drugs.” Id. (quota-

tion marks omitted). The government does not have to prove that

all of the members knew every detail or participated in every stage

of the conspiracy; it is enough that they knew its essential nature.

United States v. Morel, 63 F.4th 913, 919 (11th Cir. 2023).

Forbes argues that the government proved only a series of

buyer-seller relationships that were unrelated to each other. He

argues that there was no evidence of a “common design or pur-

pose” to distribute cocaine. Forbes describes himself as a middle-

man who would “shop around” to get the best price for drugs to

increase his profit when he resold them. He points out that the

cocaine seized from his truck appeared to be packaged differently

from the cocaine that was seized from his co-defendant Sheppard’s

apartment. And he points to the seizure at Sheppard’s apartment

of an open partial kilo of cocaine that the government didn’t argue

came from Forbes. That shows, according to Forbes, that he and

Sheppard both had other suppliers.

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Even if they did have other suppliers, that doesn’t negate the

evidence presented of Sheppard’s and Forbes’ ongoing drug trans-

actions. See Achey, 943 F.3d at 917. The government presented sur-

veillance and wiretap evidence establishing multiple meetings and

phone calls between the two of them during April 2022. An officer

who conducted aerial surveillance in June 2022 testified that he saw

“a brown satchel of some sort” taken out of Forbes’ vehicle and put

into Sheppard’s vehicle. An officer conducting surveillance on the

ground on that same day testified that Sheppard took a brown bag

up to his apartment.

The evidence showed that in July of 2022, Forbes travelled

to meet with Sheppard in the early morning hours. Sheppard went

to a self-storage center at about 3:00 a.m. and returned to his apart-

ment fifteen minutes later. An officer conducting surveillance near

Sheppard’s apartment saw Sheppard’s car arrive and then saw

Forbes’ minivan arrive. The officer saw Sheppard go to his apart-

ment and later return carrying a “handbag.” Soon after that, the

officer saw Sheppard walking back up to his apartment, and he ap-

peared to be clutching some object near his abdomen, but it was

not the bag he previously had been carrying. Soon after that, Shep-

pard left his apartment again and returned to where his and Forbes’

vehicles were parked next to each other, and he did not appear to

be carrying anything.

Two days later, having obtained warrants, officers searched

Sheppard’s apartment and his ministorage unit. In the apartment,

they found $2,000 in cash under the mattress and an open safe with

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12 Opinion of the Court 24-12126

cocaine and other drugs inside it. One package of cocaine in the

safe had been opened, and another was unopened and in a heat-

sealed bag. In Sheppard’s ministorage unit, they found $16,000, a

pistol, an AR-style rifle, and jewelry.

At trial the content of the wiretaps that the government pre-

sented was powerful evidence that Forbes conspired with Shep-

pard and others to distribute cocaine. We have already recounted

Agent Grasso’s testimony about the use of coded language about

drug activities and transactions in the conversations captured by

the wiretaps. See supra at 2–6. In his own testimony, Forbes admit-

ted that he was using coded language, but tried to persuade the jury

that he was referring to truck parts that are used to bypass pollution

controls. He admitted that references to “Michael Jordan,” who

wore jersey number 23, did refer to an amount, but insisted it was

prices for truck parts, not drugs. He said the same thing about

“22nd Avenue,” explaining that it was “lingo” for the $2,200 price

of truck parts. And “appointments,” according to Forbes, referred

to “the amount of vehicles” that are “involved in the job,” not drug

deals. The jury was free to reject Forbes’ testimony as not credible,

see Peters, 403 F.3d at 1268, and to find instead that Forbes had been

talking about distributing drugs. As it obviously did.

The government also presented testimony from a fellow in-

mate who told the jury that Forbes had admitted to him using

coded language, such as “appointments” for kilograms. He men-

tioned that one of his “appointments” was cancelled, so he had only

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two kilograms instead of three when his truck was stopped by law

enforcement.

Another fellow inmate testified that Forbes told him that he

had traveled from Atlanta to Miami to pick up a couple of kilo-

grams of cocaine for someone who lived in Atlanta. He said that

someone had ordered three kilograms, but one of the “appoint-

ments” got cancelled, so he picked up only two. Forbes also told

him that he sold cocaine to Sheppard on a regular basis. “Evidence

of prior drug dealings is highly probative of intent to distribute a

controlled substance, as well as involvement in a conspiracy.”

United States v. Barron-Soto, 820 F.3d 409, 417 (11th Cir. 2016) (quo-

tation marks omitted).

Forbes argues that because none of the people who sold

him cocaine knew what he did with it, there was no evidence of an

agreement to engage in drug distribution. He relies on United

States v. Mercer, 165 F.3d 1331, 1336 (11th Cir. 1999), where we held

that the evidence was insufficient to support the defendant’s drug

conspiracy conviction without any proof of “a common design or

purpose to join [the defendant] with anyone other than govern-

ment agents.” Id. at 1336. In Mercer there was merely evidence that

the defendant “sold drugs and that he had sources from which he

could get drugs, that [he] had a source for drugs and if that source

failed he would ‘go somewhere else,’ that he bought quantities of

cocaine from some unknown source and sold it to police agents

presumably at a profit.” Id.

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14 Opinion of the Court 24-12126

The evidence in the present case, by contrast, establishes a

common or shared design or purpose to purchase kilograms of co-

caine and distribute those drugs. The jury heard evidence of inter-

cepted phone calls using coded language to refer to amounts of co-

caine and money, of meetings between Sheppard and Forbes, of

the cocaine and cash that officers found in their search of Shep-

pard’s apartment, of the large amount of cash in his storage unit,

and of the seizure of two kilograms of cocaine in Forbes’ truck with

one of his codefendant’s fingerprints on the package containing it.

Based on all of that evidence, a reasonable jury could find, as this

one did, that Forbes had a conspiratorial agreement with Sheppard

and others to possess with intent to distribute large amounts of co-

caine. The district court did not err in denying Forbes’ motion for

a judgment of acquittal on conspiracy to possess cocaine with the

intent to distribute it, nor did the court abuse its discretion in deny-

ing a new trial on that count.

II. The Sentence

Forbes challenges his sentence. We review de novo the dis-

trict court’s interpretation and application of the sentencing guide-

lines. United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023)

(en banc). We review the court’s factual findings for clear error.

United States v. Carillo-Ayala, 713 F.3d 82, 87 (11th Cir. 2013).

A. The Enhancement for Possessing a Firearm

In Connection with a Drug Offense

Forbes contends that he should not have received a

two-level enhancement for possessing a firearm in connection with

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24-12126 Opinion of the Court 15

a drug offense because he was acquitted of a charge under 18 U.S.C.

§ 924(c) for possessing a firearm in furtherance of a drug offense.

As a defendant convicted of possession with intent to distrib-

ute a controlled substance, Forbes was subject to a two-level en-

hancement because a specific characteristic of his offense included

that “a dangerous weapon (including a firearm) was possessed.”

U.S.S.G. § 2D1.1(b)(1). The guidelines’ commentary explains that

the enhancement “reflects the increased danger of violence when

drug traffickers possess weapons.” Id. cmt. n.11(A). It specifies that

“[t]he enhancement should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with the

offense.” Id. (emphasis added).

In seeking the two-level sentence enhancement under §

2D1.1(b)(1), the government had the initial burden to show by a

preponderance of the evidence that a firearm was present when

Forbes committed his drug trafficking offense and that its presence

was not a mere accident or coincidence. See United States v. George,

872 F.3d 1197, 1204 (11th Cir. 2017). The burden then shifted to

Forbes to show that it was “clearly improbable that the weapon

was connected with” his drug trafficking offense. Carillo-Ayala,

713 F.3d at 90. We have recognized that a firearm’s close proximity

to drugs or drug-related items can establish the required connec-

tion because the weapon is available to be used to facilitate the drug

offense. See id. at 92 (noting that “there is a strong presumption

that a defendant aware of the weapon’s presence will think of using

it if his illegal activities are threatened”).

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16 Opinion of the Court 24-12126

We have recognized that “[a] ‘connection’ is shown by less

evidentiary proof than is required to show possession ‘in furtherance

of” a drug offense.” Carillo-Ayala, 713 F.3d at 96 (emphasis added);

see also United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)

(holding that “the presence of a gun within the defendant’s domin-

ion and control during a drug trafficking offense” was not enough

to establish that the weapon was possessed in “furtherance” of the

crime).

The fact that Forbes was acquitted of the charge of pos-

sessing a firearm in furtherance of a drug trafficking offense doesn’t

mean that the government did not establish by a preponderance of

the evidence that he possessed a firearm in connection with a drug

trafficking offense. See Carillo-Ayala, 713 F.3d at 96; cf. United States

v. George, 872 F.3d 1197, 1205 (11th Cir. 2017) (holding that the de-

fendant’s acquittal on a firearm possession charge did not “negate

the application of a sentencing enhancement based on identical ev-

idence because at sentencing, the government need only prove the

applicability of the enhancement by a preponderance of the evi-

dence, rather than beyond a reasonable doubt”). At the time Forbes

was sentenced, our precedent established that “sentencing courts

may consider both uncharged and acquitted conduct in determin-

ing the appropriate sentence.” United States v. Rushin, 844 F.3d 933,

942 (11th Cir. 2016) (quotation marks omitted). 1

1 Forbes was sentenced on June 25, 2024, under the 2023 guidelines.

In November 2024, Amendment 826 to the Sentencing Guidelines went into

effect. See U.S. Sentencing Commission, Adopted Amendments (Effective

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The district court did not clearly err in finding that Forbes

“possessed” a firearm for purposes of the § 2D1.1(b)(1) enhance-

ment. The firearm was found in close proximity to the two kilo-

grams of cocaine in Forbes’ truck. Although Forbes’ girlfriend tes-

tified that she had inadvertently left her firearm in his truck, the

court found that her testimony was not credible. The government

presented evidence of an intercepted phone call where Forbes said

he had been carrying a firearm in his truck since January. And two

witnesses at trial testified that Forbes told them he carried the fire-

arm for protection.

November 1, 2024). That amendment added a subsection to U.S.S.G. §1B1.3

called “Acquitted Conduct,” and it provides that “[r]elevant conduct does not

include conduct for which the defendant was criminally charged and acquitted

in federal court, unless such conduct also establishes, in whole or in part, the

instant offense of conviction.” See id. The Sentencing Commission did not

include that amendment as one that was intended to have retroactive applica-

tion. See U.S.S.G. § 1B1.10(d).

When we review on direct appeal the district court’s application of the

sentencing guidelines, we apply the version of the guidelines in effect on the

date of the sentencing hearing. United States v. Jerchower, 631 F.3d 1181, 1184

(11th Cir. 2011). We will consider clarifying amendments to the guidelines

made after the date of sentencing but will not review substantive changes to

the guidelines or apply them retroactively. Id. Forbes has not argued that

Amendment 826 is merely clarifying, and we seriously doubt that it is. See id.

at 1185. In any event, we need not decide that issue because as the district

court correctly recognized, “the enhancement for possessing the gun in con-

nection with this offense doesn’t require the same facts that a conviction under

924(c) would.”

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The record supports the district court’s finding that Forbes

possessed the firearm while possessing cocaine with the intent to

distribute it. And Forbes failed to show that it was “clearly improb-

able that the weapon was connected with” his drug trafficking of-

fense. Carillo-Ayala, 713 F.3d at 90. The district court properly ap-

plied the two-level enhancement to his base offense level under §

2D1.1(b)(1).

B. Denial of a Zero-Point Offender Reduction

Forbes contends that that he should have received “a

zero-point offender” reduction to his offense level given his acquit-

tal on the 18 U.S.C. § 924(c) charge. Because the court correctly

found under U.S.S.G. § 2D1.1(b)(1) that Forbes possessed a firearm

in connection with his drug trafficking offense, the court did not

err in refusing to apply a zero-point offender reduction.

Amendment 821 to the sentencing guidelines was in effect

when Forbes was sentenced in June 2024. See U.S. Sentencing

Commission, Adopted Amendments (Effective November 1,

2023). The amended guideline contained a new section, U.S.S.G.

§ 4C1.1 (2023), titled “Adjustment for Certain Zero-Point Offend-

ers,” which provides for a two-level decrease in a defendant’s of-

fense level if the defendant has zero criminal history points and sat-

isfies ten other requirements. Id. One of those requirements is that

“the defendant did not possess, receive, purchase, transport, transfer,

sell, or otherwise dispose of a firearm or other dangerous weapon

(or induce another participant to do so) in connection with the of-

fense.” U.S.S.G. § 4C1.1(a)(7) (emphasis added). Forbes did. See

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supra at 14–18. So he was not entitled to the reduction. The district

court properly denied the requested two-level reduction.

C. The Substantive Reasonableness of the Sentence

Forbes challenges the substantive reasonableness of his sen-

tence. He contends that the district court gave too much weight

to the likelihood that he would reoffend and didn’t consider his lack

of criminal history.

Forbes’ guidelines range was 97 to 121 months imprison-

ment. He was subject to a five-year mandatory minimum and a

40-year statutory maximum. The district court considered the 18

U.S.C. § 3353(a) factors and varied upward from the high end of

Forbes’ guidelines range, imposing a sentence of 168 months.

The court found that Forbes was accountable for three kilo-

grams of cocaine, the two found in his truck plus another one that

he had delivered to codefendant Sheppard at an earlier date. The

court determined that Forbes had played a “knowing, active and

sophisticated part” in the drug trafficking conspiracy. He had em-

ployed “old-school sophistication” by hiding the drugs, meeting

with coconspirators in places that were difficult to surveil, conceal-

ing the drugs when he was in public, and “being extremely diligent

in using coded language in every phone call he made.” That strat-

egy, the court explained, enabled Forbes to take the stand and

“bold-facedly claim to the jury that he was talking about truck parts

that he couldn’t define and couldn’t really give any information

about.” And the way Forbes spoke on the wiretapped calls re-

vealed “the depth of his experience as a drug trafficker.”

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20 Opinion of the Court 24-12126

The court focused on that fact that Forbes had “lied through-

out his testimony.” He lied about using coded language to talk

about drugs and about transporting them from one place to an-

other. The court also found that he had “shown no remorse.”

The court explained that an upward variance was justified

because there was a “significant risk of recidivism.” Forbes was in-

volved in a conspiracy that included “a lot of people” who

“mov[ed] a lot of drugs” and brought those drugs “into new com-

munities.” The court described Forbes as “somebody who really

knows what he’s doing in a way that allows him to evade detection,

and here he’s still trying to kind of talk his way out of it by saying

things that aren’t true, and this speaks to the likelihood that he will

re-offend.” As a result, the court determined that an upward vari-

ance was necessary for specific deterrence. It also considered the

need for general deterrence because of the dangers and problems

of drugs coming into communities. And it described the way

Forbes had lied at trial was “really quite egregious.” The court also

considered the seriousness of the offense and the lack of mitigation.

All of that, the court concluded, justified an upward variance.

We review the substantive reasonableness of a sentence un-

der a deferential abuse-of-discretion standard considering the total-

ity of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007).

We will vacate a sentence as substantively unreasonable “if, but

only if, we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the

§ 3553(a) factors by arriving at a sentence that lies outside the range

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24-12126 Opinion of the Court 21

of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quota-

tion marks omitted). We will not “set aside a sentence merely be-

cause we would have decided that another one is more appropri-

ate.” Id. at 1191. We are not permitted to substitute our own judg-

ment for the district court’s and will affirm “so long as the court’s

decision was in the ballpark of permissible outcomes.” United States

v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022) (quotation marks

omitted). As the party challenging the sentence, Forbes bears the

burden of proving it is unreasonable. See United States v. Boone, 97

F.4th 1331, 1338–39 (11th Cir. 2024).

In judging the reasonableness of a sentence, we keep in mind

these basic principles. The district court must impose a sentence

that is sufficient, but not greater than necessary, to reflect the seri-

ousness of the offense, to promote respect for the law, to provide

just punishment for the offense, to afford adequate deterrence, and

to protect the public from further crimes of the defendant. 18

U.S.C. § 3553(a). In addition, the court must consider, among

other factors, the nature and circumstances of the offense, the his-

tory and characteristics of the defendant, and the need to avoid un-

warranted sentence disparities among similarly situated defend-

ants. Id. The court imposes a substantively unreasonable sentence

when it “(1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an im-

proper or irrelevant factor, or (3) commits a clear error of judgment

in considering the proper factors.” Butler, 39 F.4th at 1355 (quota-

tion marks omitted).

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22 Opinion of the Court 24-12126

Although the district court is required to consider all rele-

vant § 3553(a) factors, “the weight given to each factor is commit-

ted to [its] sound discretion,” and the court may attach great weight

to one factor over the others. Id. The court does not have to ex-

plicitly state on the record that it has considered all of the factors

or expressly discuss each of them. United States v. Ortiz-Delgado, 451

F.3d 752, 758 (11th Cir. 2006).

In imposing Forbes’ sentence, the district court adequately

justified the upward variance. See United States v. Dougherty, 754

F.3d 1353, 1362 (11th Cir. 2014). It properly considered the

§ 3553(a) factors and did not abuse its discretion by placing substan-

tial weight on the seriousness of the offense and Forbes’ history and

characteristics, his lies during his testimony, and his lack of re-

morse. The court also considered the need to provide specific and

general deterrence and to protect the public.

Not only that but the 168-month (14 years) sentence was

well below the statutory maximum of 40 years, which is another

indicator of its reasonableness. See United States v. Riley, 995 F.3d

1272, 1278 (11th Cir. 2021). The sentence is not substantively un-

reasonable.

D. The Description of the Conditions of Supervised Release

Finally, Forbes contends that the district court violated his

due process rights because it imposed the standard discretionary

conditions of supervised release without specifically describing

what those conditions are. Forbes’ presentence investigation re-

port (PSR) referred to the availability of the conditions in the

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24-12126 Opinion of the Court 23

Overview of Probation and Supervised Release Conditions docu-

ment and provided the website address where it could be found.

The PSR recommended, and the court required, that “any term of

supervision be under the mandatory and standard conditions

adopted for use” in the district and it also discussed the recom-

mended special conditions. At the sentencing hearing, the court

confirmed that Forbes had reviewed the PSR with his counsel.

When imposing the sentence, the court stated that “the

standard and mandatory conditions” of supervised release would

be required “as well as the specific conditions that are laid out” in

the PSR. Forbes did not object or ask for any clarification about

what those conditions are. The written judgment listed in detail

the 13 standard conditions of supervised release.

Several mandatory conditions of supervised release are set

out in 18 U.S.C. § 3583(d), and district courts are authorized to or-

der additional conditions. See 18 U.S.C. § 3583(d). The United

States Sentencing Guidelines allow other discretionary conditions

and list the 13 standard conditions that are generally recom-

mended, as well as several special conditions. See U.S.S.G.

§ 5D1.3(b)–(d). “[A] district court is not required to individually

pronounce each discretionary condition of supervised release if at

sentencing the court expressly incorporates a written list detailing

those conditions.” United States v. Rodriguez, 75 F.4th 1231, 1249

(11th Cir. 2023).

In our Hayden decision, we held that a district court’s oral

pronouncement of the “standard conditions” was sufficient when

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24 Opinion of the Court 24-12126

the court “referenced the 13 discretionary standard conditions of

supervised release” that had been adopted in that district. United

States v. Hayden, 119 F.4th 832, 838–39 (11th Cir. 2024). The condi-

tions imposed in the written judgment were listed in the publicly

available judgment form and tracked the relevant sentencing

guideline. Id. at 839. There was no “conflict” between the oral

pronouncement and the written judgment, which “specifie[d] what

the oral pronouncement had already declared.” Id. Under those

circumstances, due process requirements were satisfied. See id.; see

also United States v. Read, 118 F.4th 1317, 1321–22 (11th Cir. 2024)

(explaining that “[c]oncerns about due process arise when a sen-

tence in the written judgment conflicts with the oral pronounce-

ment” and holding that there was no conflict because the written

judgment detailing the standard conditions adopted by the district

“only expound[ed]” upon the oral pronouncement of the “standard

conditions”).

The district court did not err by failing to detail in its oral

pronouncement of Forbes’ sentence the standard discretionary

conditions of his supervised release. The court referred to the con-

ditions that were brought to Forbes’ attention in the PSR before

sentencing and were publicly available on the website that the PSR

mentioned. In this case, as in Hayden and Read, there was no “con-

flict” between the oral pronouncement and the written judgment,

which “specifie[d] what the oral pronouncement had already de-

clared.” See Hayden, 119 F.4th at 839; see also Read, 118 F.4th at

1322.

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24-12126 Opinion of the Court 25

AFFIRMED.