                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        October 4, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                          No. 11-3382
                                                 (D.C. No. 6:95-CR-10040-MLB-1)
GARY ALLEN LOWE, JR.,                                        (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and EBEL, Circuit Judges.




      Gary Allen Lowe, Jr. appeals from the district court’s denial of his motion to

terminate or modify his term of supervised release under 18 U.S.C. § 3583(e)(1). He

argues that the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat.

2372, which reduced the disparity between crack cocaine and powder cocaine



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sentences from 100:1 to 18:1,1 renders his underlying sentence violative of his Fifth

Amendment due process and equal protection rights and Eighth Amendment right to

be free from cruel and unusual punishment. As such, he contends the district court

should have terminated or modified his supervised release. He further claims the

district court abused its discretion in failing to address his constitutional challenges

to his original sentence. Exercising our jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                    I.     Background

      Mr. Lowe was convicted of multiple offenses including possession with intent

to distribute crack cocaine, possession with intent to distribute marijuana, and

possession of a firearm during and in relation to a drug trafficking crime, in violation

of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 924(c). Mr. Lowe was sentenced to a term

of 190 months in prison followed by a term of five years of supervised release. On

Mr. Lowe’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), the sentence

was modified to 168 months.

      Mr. Lowe began his supervised release in July 2010. The United States

Probation Office thereafter filed in the district court a Petition for Warrant or

Summons for Offender Under Supervision, alleging violations by Mr. Lowe of the


1
       The FSA took effect on August 3, 2010. It increased the amount of crack
cocaine necessary to trigger mandatory minimum terms of imprisonment which had
the effect of lowering the 100:1 crack-to-powder ratio to 18:1. See Dorsey v.
United States, 132 S. Ct. 2321, 2329 (2012).


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conditions of his supervised release, including the use and possession of marijuana,

and failing to report for drug testing. The probation officer recommended that

Mr. Lowe’s term of supervision be revoked.

      Mr. Lowe responded with a motion to terminate or modify his supervised

release pursuant to 18 U.S.C. § 3583(e)(1), but he did not address the alleged

violations of his conditions of supervised release. As pertinent to this appeal, he

sought, instead, termination or modification of his supervised release based in part on

the FSA. Specifically, he noted that through passage of the FSA, Congress reduced

sentencing for crack cocaine offenses relative to powder cocaine offenses.

Accordingly, he asserted that because he had “over-served the term of imprisonment

by 21 to 38 months” (in comparison to a person sentenced based on the FSA

crack/powder ratio), his supervised release should be terminated. App. Vol. I, at 34.

In making this request, he argued for retroactive application of the FSA. In the last

paragraph of his motion, he claimed that enactment of the FSA “underscore[d] the

position that the previous 100:1 cocaine to crack cocaine powder ratio constituted a

violation of [his] Fifth Amendment due process rights” and “amounted to cruel and

unusual punishment in violation of the Eighth Amendment.” Id. And “[a]s a result

there [was] additional legislative support for a termination or reduction of [his]

supervised release.” Id.

      The government objected to Mr. Lowe’s motion arguing that while termination

or reduction of his supervised release was discretionary, there was “no reason” to


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grant Mr. Lowe such relief given the violations of his supervised release conditions.

Id. at 37. Notably, the government contended that Mr. Lowe’s “discussion of the

[FSA was] irrelevant to the question as to whether [Mr. Lowe] . . . violated

supervised release.” Id. at 36, n.1.

      At a hearing on Mr. Lowe’s motion, the district court rejected his arguments

for termination or modification of his supervised release. Instead, based on

Mr. Lowe’s admission to his use and possession of marijuana, the district court found

he had violated the terms of his supervised release and sentenced him to twelve

months and one day imprisonment. This appeal followed.

                                       II.    Discussion

      A. Fifth Amendment Violation

      Mr. Lowe argues on appeal that his modified original sentence violates his due

process rights under the Fifth Amendment in light of the recent enactment of the

FSA. Specifically, in support of his constitutional challenge, he argues that his

pre-FSA sentence was substantially more severe compared to those defendants

charged at the same time with cocaine powder offenses and that if he had been

charged under the post-FSA sentencing scheme, he would have served between 21-38

fewer months in prison. “We review these constitutional challenges de novo.”

United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006). He further argues for a

strict scrutiny standard of review and asserts that the disparity resulting from the

pre-FSA 100:1 ratio is not supported by a compelling government interest and even if


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such a compelling interest existed, the 100:1 ratio is not closely fitted to that interest.

Mr. Lowe did not raise this specific argument below, and, thus we review for plain

error. See United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010).

       We discern no error, let alone plain error. As a preliminary matter, the FSA is

inapplicable to Mr. Lowe because he was sentenced well before the Act’s effective

date. See Dorsey, 132 S. Ct. at 2326 (holding that the more lenient penalty

provisions of the FSA are applicable to offenders who committed a crack-cocaine

crime before August 3, 2010 but were not sentenced until after August 3, 2010).

Second, as the government correctly states, constitutional challenges to the 100:1

ratio sentencing disparity based on alleged violations of due process guarantees under

the Fifth Amendment have been routinely rejected. Mr. Lowe’s arguments are

foreclosed by binding Circuit precedent. See United States v. Brooks, 161 F.3d 1240,

1247 (10th Cir. 1998) (holding that 100:1 ratio’s distinction between crack cocaine

and powder cocaine violates neither Fifth Amendment rights to due process and equal

protection nor Eighth Amendment right to be free from cruel and unusual

punishment); United States v. Angulo-Lopez, 7 F.3d 1506, 1508-09 (10th Cir. 1993),

superseded on other grounds as recognized in United States v. Kissick, 69 F.3d 1048,

1053 (10th Cir. 1995) (upholding constitutionality of sentencing distinction between

crack cocaine and powder cocaine on equal protection grounds); United States v.

Turner, 928 F.2d 956, 959-60 (10th Cir. 1991) (holding that different penalties for




                                           -5-
cocaine base and cocaine in its other forms under 100:1 sentencing scheme does not

violate Fifth Amendment due process guarantees).

      On appeal, Mr. Lowe acknowledges the precedent regarding his constitutional

claims and yet asks this court to revisit that precedent because the FSA has “altered

the landscape” of federal cocaine sentencing. Aplt. Br. at 11. But we are bound by

precedent upholding the constitutional validity of sentencing disparities between

crack cocaine and powder cocaine absent en banc reconsideration or a superseding

contrary decision by the Supreme Court. Brooks, 161 F.3d at 1247. And contrary to

Mr. Lowe’s characterization, the Supreme Court’s decision in Kimbrough v. United

States did not hold that the 100:1 ratio is constitutionally infirm. See Kimbrough v.

United States, 552 U.S. 85 (2007).2

      B. Eighth Amendment Violation

      Mr. Lowe asserts that his modified original sentence violated his right to be

free from cruel and unusual punishment under the Eighth Amendment in light of the

FSA. As with his due process challenge, he urges reconsideration of binding

precedent that is contrary to his claim. On appeal, he further claims he served 21-38

more months in prison than a similarly situated defendant sentenced under the

post-FSA scheme. There are aspects of his argument, however, that were not



2
       Though Kimbrough did discuss the disparate treatment of crack and powder
cocaine by federal sentencing laws, it did not involve or address a constitutional
challenge to that disparity. See 552 U.S. at 91-92.


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specifically presented to the district court. Again, reviewing his arguments either de

novo or for plain error, we find no error.

      Arguments such as Mr. Lowe’s, that the 100:1 sentencing ratio runs afoul of

the Eighth Amendment have consistently been rejected by this court and others. See

Brooks, 161 F.3d at 1247 (holding that circuit precedent foreclosed argument that the

“distinction between powder and crack cocaine violates . . . Eighth Amendment right

to be free from cruel and unusual punishment”). As with Mr. Lowe’s due process

challenge, we are bound by precedent. And his urging of this court to reconsider its

precedent in light of the FSA is unavailing. See e.g., United States v. Speed,

656 F.3d 714, 720 (7th Cir. 2011) (rejecting claim that life sentence for crime

involving over 50 grams of crack, imposed under pre-FSA statutory scheme, violated

Eighth Amendment noting that “Congress’s amendment to the statutory penalties

does not transform the preexisting penalty scheme into a cruel and unusual one”).

Mr. Lowe’s modified original sentence did not violate the Eighth Amendment. See

United States v. Williams, 576 F.3d 1149, 1165 (10th Cir. 2009) (holding that

concurrent life sentences for distribution of more than fifty grams of cocaine did not

violate Eighth Amendment).

      C. Failure to Rule

      Lastly, Mr. Lowe asserts that the district court abused its discretion in failing

to rule on his argument that his supervised release should be terminated or modified

because passage of the FSA supports his contention that his original sentence was


                                             -7-
violative of the Fifth and Eighth Amendments. We disagree that the district court

failed to rule on Mr. Lowe’s constitutional challenges. Even if the district court did

not rule, however, we would nevertheless affirm because, as previously stated, we are

bound by precedent.

      The district court’s order is AFFIRMED. Appellee’s request for a “Violation

Report” is denied as MOOT.


                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




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