United States v. Forbes: Acquitted Conduct Still Usable at Pre–Amendment 826 Sentencings; Lay “Code-Word” Testimony Upheld; §2D1.1(b)(1) Firearm Enhancement Requires Less Than §924(c)

United States v. Forbes: Acquitted Conduct Still Usable at Pre–Amendment 826 Sentencings; Lay “Code-Word” Testimony Upheld; §2D1.1(b)(1) Firearm Enhancement Requires Less Than §924(c)

Court: U.S. Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Not for Publication)

Date: November 7, 2025

Panel: Circuit Judges Lagoa, Ed Carnes, and Wilson (Per Curiam)

Introduction

In this non-precedential but practically significant opinion, the Eleventh Circuit affirmed the convictions and sentence of Frederick Anthony Forbes for (1) possession with intent to distribute at least 500 grams but less than 5 kilograms of cocaine, and (2) conspiracy to distribute that amount. The decision touches several high-interest issues:

  • When and how a law enforcement officer may interpret “coded” drug language as a lay (Rule 701) rather than expert (Rule 702) witness;
  • What suffices to prove constructive possession and a drug-distribution conspiracy beyond a mere buyer-seller relationship;
  • Whether a guideline firearm enhancement can stand despite the defendant’s acquittal on a parallel §924(c) count, particularly in light of the U.S. Sentencing Commission’s 2024 “Acquitted Conduct” amendment (Amendment 826);
  • Eligibility for the new zero-point offender reduction (§4C1.1);
  • The reasonableness of an upward variance to 168 months’ imprisonment; and
  • Whether a district court must orally enumerate standard supervised release conditions at sentencing.

Though unpublished and thus not binding precedent, the opinion consolidates and applies existing Eleventh Circuit law while clarifying the immediate post–Amendment 826 landscape: on direct appeal, a pre–November 1, 2024 sentence may still consider acquitted conduct and apply a §2D1.1(b)(1) firearm enhancement, because §924(c)’s “in furtherance” standard is materially different and more demanding than §2D1.1(b)(1)’s “in connection with” standard.

Summary of the Opinion

  • Evidence rulings: The district court did not abuse its discretion in allowing a DEA agent to interpret coded drug language as a lay witness under Rules 701 and 602. No plain error occurred in not qualifying her as an expert.
  • Guilt-phase sufficiency: Ample evidence supported constructive possession of two kilograms of cocaine and intent to distribute; and supported a conspiracy beyond a mere buyer-seller relationship.
  • Firearm enhancement: The §2D1.1(b)(1) two-level enhancement properly applied even though the jury acquitted the defendant on a §924(c) count. Pre–Amendment 826 law permitted consideration of acquitted conduct; moreover, §2D1.1(b)(1) requires less than §924(c).
  • Zero-point offender: The defendant was ineligible for §4C1.1’s two-level reduction because he possessed a firearm “in connection with the offense.”
  • Upward variance: The 168-month sentence (well below the 40-year maximum) was substantively reasonable given the district court’s §3553(a) analysis emphasizing sophistication, perjurious testimony, lack of remorse, and risk of recidivism.
  • Supervised release conditions: The district court satisfied due process by incorporating the district’s standard conditions and those described in the PSR; no oral item-by-item recitation was required where the written judgment later listed them and no conflict existed.

Detailed Analysis

1) Interpreting “coded” drug language: lay or expert testimony?

Forbes challenged DEA Agent Grasso’s interpretations of intercepted calls, arguing lack of foundation and that her testimony was effectively expert testimony without qualification. The panel upheld the district court.

Precedents cited and applied

  • Fed. R. Evid. 602 permits a witness to testify based on personal knowledge, including the witness’s own testimony establishing that knowledge.
  • Fed. R. Evid. 701 permits lay opinion if rationally based on the witness’s perception and helpful, and not based on scientific, technical, or other specialized knowledge.
  • United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011): Agents may interpret code words as lay witnesses when their opinions derive from what they learned in the particular investigation and from contextual interpretation of the calls.
  • United States v. Williams, 865 F.3d 1328 (11th Cir. 2017): Professional experience may inform lay opinion so long as it is rationally based on the witness’s perceptions and not offered as scientific/technical expertise.
  • Standard of review: abuse of discretion (United States v. Jeri, 869 F.3d 1247 (11th Cir. 2017)); plain error for unpreserved objections (United States v. Turner, 474 F.3d 1265 (11th Cir. 2007)).

Legal reasoning

Agent Grasso had 20 years at DEA, participated in this investigation, and reviewed all intercepted calls. Her opinions (e.g., that “22nd Avenue” or “Michael Jordan’s number” referenced price, and “appointments” referred to drug transactions) were grounded in her case-specific monitoring, contextual reading of conversations, and perception of participants’ tone, sequence, and interactions. The panel characterized this as permissible lay opinion under Rule 701—not specialized methodology—and supported by personal knowledge under Rule 602.

Takeaway

In the Eleventh Circuit, agents may interpret coded drug language as lay opinion when the foundation shows case-specific personal knowledge and contextual interpretation, even if the agent’s professional experience informs that perception. To preserve a stricter Rule 702 challenge, defense counsel must contemporaneously object that the testimony crosses into specialized knowledge.

2) Sufficiency of the evidence: possession with intent to distribute

Precedents and standards

  • Review: de novo, in the light most favorable to the verdict; any reasonable construction supporting guilt suffices (United States v. Godwin, 765 F.3d 1306 (11th Cir. 2014)).
  • Elements: knowing possession and intent to distribute (United States v. Woodard, 531 F.3d 1352 (11th Cir. 2008)).
  • Constructive possession: ownership, dominion, or control over drugs or the vehicle/premises where concealed (United States v. Hernandez, 433 F.3d 1328 (11th Cir. 2005)).
  • Intent to distribute: inferred from quantity; two kilograms supports intent (Hernandez).
  • “Prudent smuggler” inference: traffickers do not entrust valuable cargo to the unwitting (United States v. Quilca-Carpio, 118 F.3d 719 (11th Cir. 1997)).
  • Credibility determinations are for the jury (United States v. Peters, 403 F.3d 1263 (11th Cir. 2005)).

Key facts and reasoning

Officers found two kilograms of cocaine concealed in a storage compartment behind the passenger seat of Forbes’ tractor-trailer. He owned and was driving the truck alone. Intercepted calls involved coded references to prices (e.g., “22nd Avenue” = $2,200) and meetings; a co-defendant’s fingerprint was on one package. Forbes’ alternative narrative (parked overnight; someone else might have stashed the drugs) was rejected by the jury. The combination of dominion over the vehicle, quantity, coded communications, and fingerprint evidence comfortably supported constructive possession and intent to distribute.

3) Sufficiency of the evidence: conspiracy beyond a mere buyer-seller relationship

Precedents and standards

  • Elements: (1) agreement to possess with intent to distribute; (2) knowledge of the agreement; (3) knowing and voluntary participation (United States v. Charles, 313 F.3d 1278 (11th Cir. 2002)).
  • Beyond buyer-seller: repeated transactions, large quantities, and other circumstances can show a shared distribution purpose (United States v. Achey, 943 F.3d 909 (11th Cir. 2019)). Members need not know all details (United States v. Morel, 63 F.4th 913 (11th Cir. 2023)).
  • Prior drug dealings are probative of intent and conspiracy involvement (United States v. Barron-Soto, 820 F.3d 409 (11th Cir. 2016)).
  • Contrast: in United States v. Mercer, 165 F.3d 1331 (11th Cir. 1999), evidence showed only discrete sales to government agents, lacking proof of a common plan with others.

Key facts and reasoning

The government introduced wiretaps, surveillance showing repeated late-night meetings and transfers, cash and drugs recovered from a co-defendant’s apartment and storage unit, and jailhouse admissions by Forbes that he used “appointments” as code for kilograms and made regular sales to a co-defendant. The two-kilogram seizure and surrounding conduct permitted the inference of an ongoing distribution conspiracy—not a series of unrelated purchases. That some participants had additional sources did not negate their shared distribution enterprise.

4) Sentencing: §2D1.1(b)(1) firearm enhancement despite a §924(c) acquittal; acquitted conduct and Amendment 826

Framework

  • Enhancement: §2D1.1(b)(1) adds two levels if “a dangerous weapon (including a firearm) was possessed.” The commentary provides it should apply if the weapon was present, unless “clearly improbable” it was connected to the offense (App. Note 11(A)).
  • Burdens: The government must show presence and more than coincidence by a preponderance; the defendant then must show a clearly improbable connection (United States v. George, 872 F.3d 1197 (11th Cir. 2017); United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013)).
  • Standard vs. §924(c): The “connection” needed for §2D1.1(b)(1) is less demanding than §924(c)’s “in furtherance of” standard (Carillo-Ayala; United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002)).
  • Acquitted conduct: Before November 1, 2024, sentencing courts in the Eleventh Circuit could consider acquitted conduct proven by a preponderance (United States v. Rushin, 844 F.3d 933 (11th Cir. 2016)); an acquittal does not bind the sentencing judge (George).

Findings and reasoning

The firearm was near the cocaine in Forbes’ truck. The district court disbelieved the girlfriend’s claim that she inadvertently left the gun in the truck. Intercepted calls indicated Forbes had carried a gun in the truck since January, and witnesses said he admitted carrying it for protection. The court thus found possession and connection to the drug offense; Forbes did not show a “clearly improbable” connection. The enhancement stood despite the §924(c) acquittal because the standards differ and the burden of proof at sentencing is lower.

Amendment 826 and non-retroactivity

The panel addressed the U.S. Sentencing Commission’s Amendment 826 (effective Nov. 1, 2024), which added an “Acquitted Conduct” limitation to §1B1.3, excluding federal acquitted conduct from relevant conduct unless it also establishes, in whole or in part, the offense of conviction. Because Forbes was sentenced on June 25, 2024, the court applied the guidelines then in effect and noted that Amendment 826 is not listed as retroactive in §1B1.10(d). The panel “seriously doubt[ed]” 826 is a mere clarifying amendment and in any event found the enhancement proper on an independent ground: §2D1.1(b)(1) does not require the same facts as §924(c).

Practical implication

For sentences imposed before Nov. 1, 2024, Eleventh Circuit law still permits consideration of acquitted conduct and application of §2D1.1(b)(1) even where a jury has acquitted on §924(c). Post–Nov. 1, 2024, Amendment 826 significantly narrows the ability to rely on acquitted conduct as relevant conduct; future litigation will likely focus on whether the government’s firearm evidence is independent of the acquitted §924(c) conduct or whether it “also establishes” the offense of conviction.

5) Zero-point offender reduction (§4C1.1)

Amendment 821 created §4C1.1, allowing eligible defendants with zero criminal history points to receive a two-level reduction if they satisfy ten criteria. One is that “the defendant did not possess … a firearm … in connection with the offense.” Because the district court found, and the panel affirmed, that Forbes possessed a firearm in connection with the drug offense, he failed §4C1.1(a)(7) and was ineligible.

6) Substantive reasonableness of a 168-month upward-variance sentence

Standards

  • Abuse-of-discretion review under Gall v. United States, 552 U.S. 38 (2007), considering the totality of circumstances.
  • Reversal is appropriate only if the sentence lies outside the range of reasonable outcomes under §3553(a) (United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc); United States v. Butler, 39 F.4th 1349 (11th Cir. 2022)).
  • Courts may weigh §3553(a) factors differently and need not mechanically recite each one (United States v. Ortiz-Delgado, 451 F.3d 752 (11th Cir. 2006)).

Application

The guideline range was 97–121 months; the statutory range was 5 years to 40 years. The district court varied upward to 168 months, citing:

  • Forbes’ “knowing, active and sophisticated” role, including coded communications and concealment techniques;
  • Perjurious trial testimony and lack of remorse;
  • Risk of recidivism and the need for specific and general deterrence; and
  • The seriousness of the offense and the breadth of the drug conspiracy.

Given these reasons and the sentence’s distance below the statutory maximum, the panel found no clear error of judgment. The upward variance was within the “ballpark of permissible outcomes.”

7) Supervised release: pronouncing standard conditions by reference

Precedents

  • District courts may incorporate a written list of standard discretionary conditions rather than orally reciting each one if there is no conflict between the oral pronouncement and the written judgment (United States v. Rodriguez, 75 F.4th 1231 (11th Cir. 2023); United States v. Hayden, 119 F.4th 832 (11th Cir. 2024); United States v. Read, 118 F.4th 1317 (11th Cir. 2024)).

Application

The PSR flagged the standard conditions and provided a public webpage link. At sentencing, the court imposed “the mandatory and standard conditions” and the PSR’s special conditions; Forbes confirmed reviewing the PSR and voiced no objection. The written judgment listed the 13 standard conditions verbatim. With no conflict between oral pronouncement and written judgment, due process was satisfied.

Precedents Cited: How They Shaped the Decision

  • Evidence foundations and lay opinion: Jeri (abuse of discretion); Turner (plain error); Rules 602, 701; Williams (professional experience as lay opinion); Jayyousi (code words as lay opinion when investigation-specific).
  • Sufficiency and credibility: Godwin (standard), Peters (jury credibility), Woodard (elements), Hernandez (constructive possession and quantity-supports-intent), Quilca-Carpio (“prudent smuggler”).
  • Conspiracy vs. buyer-seller: Charles (elements), Achey (beyond buyer-seller), Morel (partial knowledge), Barron-Soto (prior dealings probative), Mercer (insufficient proof of shared plan distinguished).
  • Guidelines and acquitted conduct: Dupree (guideline interpretation de novo), Carillo-Ayala (burdens; “connection” vs. “in furtherance”), Timmons (higher §924(c) standard), George (acquittal doesn’t bar enhancement), Rushin (acquitted conduct permissible at sentencing pre–Amendment 826), Jerchower (apply guidelines in effect at sentencing; clarifying vs. substantive amendments).
  • Reasonableness review: Gall, Irey, Butler, Boone (burden on challenger), Ortiz-Delgado (no rote recitation), Dougherty (variance explanation), Riley (below-max indicator).
  • Supervised release conditions: Rodriguez, Hayden, Read (incorporation by reference permissible; no due process violation absent conflict).

Impact and Forward-Looking Considerations

1) Coded-language testimony

This opinion reinforces a practical pathway for prosecutors to admit coded-language interpretations via Rule 701 when the agent’s understanding is rooted in the specific investigation and contextual analysis of intercepted communications. Defense counsel aiming to exclude such testimony should (a) challenge the foundation under Rule 602 if thin; (b) argue the testimony is actually specialized knowledge requiring Rule 702 qualification; and (c) request limiting instructions and careful separation of lay and expert roles.

2) Possession and buyer-seller boundaries

The opinion illustrates how quantities, repeated contacts, surveillance, coded communications, and corroborating physical evidence (e.g., fingerprints, cash, safes) coalesce into proof of both constructive possession and a distribution conspiracy. Single or sporadic retail-level transactions look increasingly like conspiracy where the scale and structure imply distribution objectives.

3) Firearms at sentencing after Amendment 826

While the panel applied pre–Nov. 1, 2024 law, future Eleventh Circuit cases will test the application of Amendment 826’s acquitted-conduct restriction. Two key questions loom:

  • When a defendant is acquitted of §924(c), can the government still prove a §2D1.1(b)(1) enhancement without relying on the acquitted conduct, e.g., via independent evidence showing a gun’s presence and connection to the drug offense?
  • What does it mean for acquitted conduct to “also establish, in whole or in part, the instant offense of conviction”? Because a firearm is not an element of drug possession/distribution, many §2D1.1(b)(1) disputes may now turn on whether the firearms evidence is genuinely separate from the acquitted §924(c) facts or inseparably the same conduct.

Sentencing practitioners should build records clarifying whether firearm evidence is independent of the acquitted count and, if not, whether it “also establishes” the offense of conviction under §1B1.3’s new text.

4) Zero-point offender eligibility

Section 4C1.1 offers meaningful relief only if none of its disqualifiers apply. A firearm possessed in connection with the offense is a categorical bar. The Forbes opinion is a reminder to litigate the “connection” question vigorously if §4C1.1 relief is in play.

5) Upward variances and trial testimony

The district court’s emphasis on perjurious testimony and lack of remorse as aggravating factors fits comfortably within Eleventh Circuit precedent. Even absent a formal obstruction enhancement, courts may consider such conduct under §3553(a). Counsel should anticipate and address these themes in mitigation, particularly where the trial record contains contested testimony.

6) Supervised release conditions

The Eleventh Circuit continues to accept incorporation-by-reference of standard conditions when the PSR and public materials put the defendant on notice and the written judgment lists them. Practically, defendants who want to challenge particular conditions should raise objections at sentencing and request clarifications on the record to avoid waiver and to preserve any conflict arguments for appeal.

Complex Concepts Simplified

  • Lay vs. expert opinion (Rules 701/702): Lay opinion is permissible when based on firsthand perceptions from the case (e.g., listening to all the wiretaps) and helpful to the jury. Expert testimony, by contrast, depends on specialized methods or training and requires Rule 702 qualification. In drug cases, interpreting code words can be lay if grounded in the case’s context rather than generalized expertise.
  • Constructive possession: You don’t have to be caught literally holding drugs. Control over the place where drugs are found (like your vehicle), plus other evidence, can establish possession.
  • Buyer-seller vs. conspiracy: A single purchase for personal use may be just buyer-seller. But repeated high-quantity transactions, coordination, and distribution paraphernalia point to a shared plan to distribute—i.e., a conspiracy.
  • §2D1.1(b)(1) “in connection with” vs. §924(c) “in furtherance”: The guideline enhancement requires only that a firearm be present and not clearly unrelated; §924(c) demands proof beyond a reasonable doubt that the firearm advanced the drug crime. The latter is harder to prove.
  • Acquitted conduct: Before Nov. 1, 2024, judges could consider conduct the jury acquitted if proven by a preponderance at sentencing. Amendment 826 now generally bars using acquitted conduct as relevant conduct unless it also establishes the offense of conviction.
  • Zero-point offender (§4C1.1): A new two-level reduction for first-time offenders who meet 10 strict criteria. Any firearm “in connection with” the offense knocks out eligibility.
  • Substantive reasonableness: Appellate courts defer to the sentencing judge’s weighing of §3553(a) factors and will overturn only if the sentence falls outside the permissible range of outcomes.
  • Pronouncing supervised release conditions: In the Eleventh Circuit, listing standard conditions orally is unnecessary if the court incorporates a written list (referenced in the PSR) and the written judgment spells them out without contradicting the in-court pronouncement.

Conclusion

United States v. Forbes affirms across the board, delivering three practical messages for criminal practice in the Eleventh Circuit. First, agents’ interpretations of coded drug language can be admitted as lay testimony when based on case-specific monitoring and context. Second, the evidentiary mosaic—quantity, control of the vehicle, coded calls, and corroboration—easily sustains possession and conspiracy verdicts beyond buyer-seller transactions. Third, at pre–Amendment 826 sentencings, acquitted conduct may still inform enhancements, and §2D1.1(b)(1) remains distinct from §924(c)’s more demanding standard. The court also reaffirms that firearms in connection with an offense disqualify defendants from the zero-point reduction, that a well-reasoned upward variance can be substantively reasonable, and that supervised release conditions may be incorporated by reference consistent with due process.

Looking ahead, Amendment 826’s “Acquitted Conduct” limitation will likely be the next frontier in disputes over §2D1.1(b)(1) firearm enhancements after §924(c) acquittals. Forbes provides a roadmap for both sides: prosecutors should develop evidence showing firearm connection independent of any acquitted §924(c) conduct; defense counsel should contest that link and press the amendment’s constraints where applicable. Even as an unpublished opinion, Forbes offers a clear, structured application of Eleventh Circuit doctrine that will guide district courts and practitioners navigating these recurring issues.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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