United States v. Ricky Perkin

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Kermit E. Bye and Lavenski R. Smith (UNPUBLISHED) [4116850] [13-2268]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2268
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ricky Alfonzo Perkins
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: December 16, 2013
Filed: January 24, 2014
[Unpublished]
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Ricky Perkins appeals the fourteen-month sentence imposed by the district
court after Perkins admitted a total of eighteen violations of eleven different
conditions of his supervised release. We affirm.
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The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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Perkins argues his fourteen-month revocation sentence violates the constitution
because, after he was originally sentenced in 2005 for a crack cocaine offense,
Congress reduced the sentences applicable to crack cocaine offenders under the Fair
Sentencing Act of 2010 (FSA). He claims the eighty-five months he has already
served between his original sentence2 and a previous supervised release violation
exceeds the maximum amount of time he could serve for his original crime. If the
FSA had applied to his original sentence, Perkins argues his advisory guidelines range
would have been 33-41 months, and the maximum time he could have spent for a
violation of supervised release would have been 24-36 months. Using the high end
of both those ranges, then, Perkins argues the maximum time he can spend in prison
under the FSA for both his original sentence and a revocation of his supervised release
is seventy-seven months (41 + 36 = 77).
There are a number of problems with the argument advanced by Perkins, but
we need only focus on two. First, the argument is based upon the flawed premise that
the FSA applies to Perkins's original sentence. See United States v. Reeves, 717 F.3d
647, 651 (8th Cir. 2013) ("[T]he Fair Sentencing Act does not apply retroactively to
defendants who were sentenced before August 3, 2010."). Thus, any hypothetical
comparisons between what Perkins received under the pre-FSA sentencing regime
(which applies to him) and the post-FSA sentence regime (which does not apply to
him) are entirely irrelevant. The constitutionality of Perkins's original sentence
remains unaffected by the passage of the FSA. See, e.g., United States v. Acoff, 634
F.3d 200, 202-03 (2d Cir. 2011) (noting the enactment of the FSA did not undermine
the constitutional validity of pre-FSA law rejecting constitutional challenges to the
100:1 crack/powder ratio). Second, the FSA does not apply to a sentence which
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Perkins originally received a sentence of 104 months. That sentence was later
reduced to seventy-seven months due to guideline amendments which modified the
sentences applicable to crack cocaine offenders.
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follows the revocation of supervised release. Such a sentence is based upon the
conduct which violated the conditions of supervised release, and not upon the conduct
which resulted in the original sentence.
We therefore affirm the district court. See 8th Cir. R. 47B.
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