Crack Amendment Does Not Apply to Supervised Release Violations

United States v. Fontenot, ___ F.3d ___ , No. 08-1363 (10th Cir 2009)
In another case of the (non-applicable) retroactive amendment reducing the crack guidelines by two levels, the 10th decides that the amendment does not apply to sentences upon revocation of supervised release. Defendant violated his supervised release on his underlying pre-amendment crack sentence, and received six months in prison concurrent to the time on his new conviction. He argued that this was a term of imprisonment based on a subsequently lowered range. The 10th held that his current incarceration is due to his non-compliance with SR and not the crack and a reduction would be contrary to the guideline policy statement which interprets the reduction statute, 3582(c)(2), as not authorizing a reduction of supervised release sentences. It rejects defendant’s position that U.S. v. Johnson, 529 U.S. 694, which says that post-revocation sanctions are part of the penalty for the original offense , applies in this situation.