United States v. Lowe
2011 U.S. App. LEXIS 1458
| 7th Cir. | 2011Background
- Lowe pleaded guilty on May 20, 2004 to conspiracy to manufacture methamphetamine, possession with intent to distribute methamphetamine, and distribution of methamphetamine under 21 U.S.C. §§ 841(a)(1) and 846.
- Judge J. Phil Gilbert sentenced Lowe on August 27, 2004 to 78 months' imprisonment and a four-year term of supervised release.
- Lowe began his term of supervised release on June 19, 2008.
- After two years on supervised release, Lowe moved for early termination on July 20, 2010; the probation department and government supported the motion.
- The district court denied the motion on July 21, 2010 without a hearing, indicating termination would be reconsidered only when 12 months remained.
- Lowe appealed arguing the district court failed to consider statutory factors and that the district policy of waiting 12 months before considering such motions was arbitrary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court abuse discretion by failing to consider §3553(a) factors? | Lowe argues factors required by §3553(a) were not considered. | Lowe argues the court did consider factors, but failed to articulate them on the record. | Yes, abuse of discretion; factors not shown on the record. |
| Was the court's 12-month-before-consideration policy arbitrary and improper? | Policy arbitrarily delays consideration contrary to §3583(e)(1). | Policy was not disclosed as policy; argument not supported by record. | Yes, policy is arbitrary and contrary to statute; remand required. |
| Must the court indicate consideration of §3553(a) factors even if not explicit for §3583(e) motions? | Some indication of factor consideration suffices. | Explicit findings are not required for every factor. | Record must reveal consideration of §3553(a) factors. |
Key Cases Cited
- United States v. Hook, 471 F.3d 766 (7th Cir. 2006) (abuse of discretion when essential factors are ignored)
- Powell v. A.T. & T. Commc'n, Inc., 938 F.2d 823 (7th Cir. 1991) (serious error of judgment when factors are ignored)
- United States v. Carter, 408 F.3d 852 (7th Cir. 2005) (record must reveal consideration of §3553(a) factors)
- United States v. Hale, 107 F.3d 526 (7th Cir. 1997) (we are satisfied if the court shows consideration of appropriate factors)
- United States v. Nonahal, 338 F.3d 668 (7th Cir. 2003) (courts should provide explanation to facilitate meaningful review)
- United States v. Gammarano, 321 F.3d 311 (2d Cir. 2003) (statutory factors must be considered; a statement of review suffices)