United States v. Gay
2014 U.S. App. LEXIS 21413
| 10th Cir. | 2014Background
- In 1998 Alondo Gay pleaded guilty to distributing cocaine base; the PSR held him accountable for 9,636.88 grams of crack, yielding base offense level 38 and a total offense level of 39 after acceptance, producing a 262–327 month guideline range; he was sentenced to 262 months.
- The Sentencing Commission later reduced crack offense levels (Amendments 706, 750, 782) and made Amendment 750 (which implements an 18:1 powder-to-crack ratio) retroactive for § 3582(c)(2) relief.
- Amendment 750 reduces base offense level 38 to 36 only for offenses involving between 2.8 and 8.4 kg of crack; offenses over 8.4 kg remain level 38. Gay’s relevant conduct (≈9.6 kg) exceeded the amendment’s threshold.
- Gay moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 750; the district court denied relief because the amendment did not lower his applicable guideline range.
- On appeal Gay sought instead to raise Fifth and Eighth Amendment challenges (and referenced Booker-type due process concerns) to his original sentence; the Tenth Circuit concluded § 3582(c)(2) is not a vehicle for collateral constitutional attacks and affirmed the denial of relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gay is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 750 | Amendment 750 reduces crack offense levels and should lower Gay’s guideline range | Gay’s relevant conduct (≈9.6 kg) exceeds Amendment 750’s applicability (≤8.4 kg), so the amendment does not lower his range | Denied — amendment did not lower Gay’s applicable guideline range, so § 3582(c)(2) relief unavailable |
| Whether a § 3582(c)(2) proceeding may be used to raise new constitutional challenges to a final sentence | Gay sought to use the § 3582(c)(2) appeal to press Fifth and Eighth Amendment claims and Booker-related arguments | § 3582(c)(2) is a narrow, statutory remedy limited to implementing guideline amendments; it does not authorize collateral constitutional attacks | Denied — court lacks authority in § 3582(c)(2) to entertain new constitutional challenges; such claims must be raised on direct appeal or in § 2255 proceedings |
| Whether Gay’s Fifth Amendment due process and Booker-related arguments require retroactive Booker relief | Gay argued his sentence was derived from a constitutionally flawed process (Booker not applied retroactively) and so violates due process | Supreme Court precedent holds Booker is not retroactive to collateral attacks; § 3582(c)(2) is not the vehicle for Booker relief | Rejected — Booker is not applied retroactively in this context and § 3582(c)(2) cannot supply Booker relief |
| Whether Gay’s sentence violates the Eighth Amendment as cruel and unusual punishment | Gay argued the 100:1 (and any ratio >1:1 per counsel at argument) powder/crack disparity and length of sentence are Eighth Amendment violations | Circuit and Supreme Court precedent reject facial Eighth Amendment attacks on the sentencing disparity and long sentences for large crack quantities | Rejected — no plain error; precedent forecloses these Eighth Amendment challenges |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (Supreme Court 2005) (mandatory Guidelines violated Sixth Amendment; Guidelines rendered advisory)
- Dillon v. United States, 560 U.S. 817 (Supreme Court 2010) (§ 3582(c)(2) proceedings are limited and not a plenary resentencing; Booker relief not retroactive in this context)
- Kimbrough v. United States, 552 U.S. 85 (Supreme Court 2007) (recognition of Congress’s policy preference regarding harsher sentences for crack than powder)
- Harmelin v. Michigan, 501 U.S. 957 (Supreme Court 1991) (lengthy prison terms for serious drug offenses do not necessarily violate the Eighth Amendment)
- United States v. Pedraza, 550 F.3d 1218 (10th Cir. 2008) (statutory creation of resentencing authority; § 3582(c)(2) jurisdiction is narrow)
- United States v. Price, 438 F.3d 1005 (10th Cir. 2006) (no authority to consider Booker relief in § 3582(c)(2) proceedings)
- United States v. Brooks, 161 F.3d 1240 (10th Cir. 1998) (rejecting Fifth and Eighth Amendment challenges to the 100:1 powder/crack disparity)