498 F. App'x 782
10th Cir.2012Background
- Lowe was convicted of crack cocaine–related offenses, marijuana distribution, and firearm possession during drug trafficking, and sentenced to 190 months with five years of supervised release; sentence later reduced to 168 months on a §3582(c)(2) reduction.
- Lowe began supervised release in July 2010.
- The U.S. Probation Office filed a Petition for Warrant or Summons alleging violations of supervised release conditions (including marijuana use and failure to report for drug testing) and recommended revocation.
- Lowe moved under 18 U.S.C. § 3583(e)(1) to terminate or modify his supervised release, basing part of his request on the Fair Sentencing Act (FSA) and retroactivity arguments.
- Lowe claimed the pre-FSA sentence violated Fifth Amendment due process and Eighth Amendment protections due to the then-applicable 100:1 crack/powder ratio, arguing termination or modification of supervision was warranted.
- The district court denied termination/modification, concluding Lowe violated supervised release conditions and sentencing him to 12 months and 1 day of imprisonment; on appeal, Lowe challenges the constitutional bases for the request and the district court’s handling of the FSA issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FSA renders Lowe’s sentence violative of due process or cruel/unusual punishment. | Lowe contends the pre-FSA ratio harmed him and warrants termination/modification as retroactive relief. | The district court and government rely on prior circuit precedent rejecting such constitutional challenges andbound by FSA retroactivity limits. | No error; FSA not applicable to Lowe; constitutional challenges foreclosed by precedent. |
| Whether the modified original sentence violates the Eighth Amendment in light of the FSA. | Lowe asserts the pre-FSA scheme causes disproportionate punishment post-FSA. | Precedent rejects Eighth Amendment challenge to the 100:1 disparity; FSA does not retroactively transform preexisting penalties. | No Eighth Amendment violation; precedent forecloses Lowe’s claim. |
| Whether the district court abused its discretion by not ruling on Lowe’s constitutional challenges to the original sentence. | District court failed to address FSA-based constitutional contentions. | Even if not expressly ruled on, the court would affirm due to binding precedent. | Not reversible; affirmance supported by controlling precedent. |
Key Cases Cited
- United States v. Brooks, 161 F.3d 1240 (10th Cir. 1998) (100:1 ratio does not violate due process or Eighth Amendment)
- United States v. Angulo-Lopez, 7 F.3d 1506 (10th Cir. 1993) (upheld crack/powder disparity on equal protection grounds)
- United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) (recognizes disparity does not violate constitutional rights)
- United States v. Turner, 928 F.2d 956 (10th Cir. 1991) (different penalties for cocaine forms do not violate due process)
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (FSA applicability to pre- vs post-August 3, 2010 offenses)
- Kimbrough v. United States, 552 U.S. 85 (2007) (discussed disparate treatment but did not hold 100:1 unconstitutional)
- United States v. Speed, 656 F.3d 714 (7th Cir. 2011) (rejected retroactive Eighth Amendment challenge post-FSA)
- United States v. Williams, 576 F.3d 1149 (10th Cir. 2009) (pre-FSA sentences did not violate Eighth Amendment under corresponding theories)