United States v. Ulysses Williams , 694 F.3d 917 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1871
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
U LYSSES W ILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:04-cr-40021-MJR-3—Michael J. Reagan, Judge.
S UBMITTED A UGUST 28, 2012—D ECIDED S EPTEMBER 21, 2012
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. In 2004 the defendant pleaded
guilty to conspiracy to distribute crack cocaine. Because
of the amount of crack involved, his base offense level
was 36. U.S.S.G. § 2D1.1(c)(2) (2004). The judge reduced
the level to 33 because the defendant had accepted re-
sponsibility for his crime. His guidelines sentencing
range, based on that offense level and a Category VI
criminal history, was 235 to 293 months, and the judge
2 No. 12-1871
sentenced him to the bottom figure. Because the
defendant was a career offender, the judge was
required, in the first instance, to calculate the guide-
lines sentence from the career-offender guideline table,
U.S.S.G. § 4B1.1(b). But the defendant’s base offense
level in the table was only 34, and it decreased to 31
because of his accepting responsibility for his criminal
conduct—and in calculating the guidelines range for a
career offender the judge is required to use the higher
of the offense level in the career-offender table or the
offense level in the guideline that would be applicable
were the defendant not a career offender. United States
v. Washington, 618 F.3d 869, 870-71 and n. 7 (8th
Cir. 2010), and cases cited there. In this case the
higher level was the one in the latter guideline—33 (after
the 3-level reduction for acceptance of responsibility),
versus only 31 in the career-offender guideline.
The defendant moved the judge under 18 U.S.C.
§ 3582(c)(2) to reduce his 235-month sentence, and the
judge reduced it to 188 months. He based the reduction
on the Sentencing Commission’s Amendment 750 to
the guidelines. That was a mistake, because that amend-
ment did not reduce the offense level for the weight
(1.3 kilograms) of crack that the defendant had con-
spired to distribute. But another amendment to the guide-
lines—Amendment 706, U.S.S.G. App. C Supp., pp. 221-
26 (2007)—retroactively reduced the base offense levels
in section 2D1.1(c) for crack-cocaine offenders, and by
a happy coincidence this reduced the defendant’s base
offense level under that section by the same amount
that the judge had reduced it under his mistaken inter-
No. 12-1871 3
pretation of Amendment 750—from 36 to 34. Cf. United
States v. Taylor, 627 F.3d 674, 676 (7th Cir. 2010). As a
result the defendant’s total offense level (which might
be better termed his “net” offense level), which included
the 3-point reduction for acceptance of responsibility
that the judge had given him, fell from 33 to 31. That
in turn reduced his guidelines sentencing range to 188
to 235 months, and again the judge gave him the
sentence at the bottom of the range.
The defendant moved for a further reduction, which
was refused. There was no possible basis for a further
reduction, as his lawyer points out in an Anders brief,
and we write only to refine the statement in our opinion
in United States v. Forman, 553 F.3d 585, 589 (7th Cir.
2009) (per curiam), that “Amendment 706 provides no
benefit to career offenders.” See also United States v. Knox,
573 F.3d 441, 450 (7th Cir. 2009); United States v. Mateo,
560 F.3d 152, 155 (3d Cir. 2009). Passages in other cases
state correctly that Amendment 706 does not affect a
sentence calculated under the career-offender guideline,
United States v. Wesson, 583 F.3d 728, 731 (9th Cir.
2009); United States v. Martinez, 572 F.3d 82, 85 (2d
Cir. 2009); United States v. Sharkey, 543 F.3d 1236, 1239 (10th
Cir. 2008); United States v. Moore, 541 F.3d 1323, 1327
(11th Cir. 2008); United States v. Tingle, 524 F.3d 839, 840
(8th Cir. 2008) (per curiam), but could be misunderstood
to agree with the statement in Forman that a career
offender cannot benefit from the amendment. That state-
ment is imprecise, as the present case shows, because
not all (though certainly most) career offenders are sen-
tenced on the basis of the offense levels in the career-
4 No. 12-1871
offender guideline, and the defendant in this case was
one who was not. But he was a career offender, and this
shows that the dictum in Forman (and other cases)
that “Amendment 706 provides no benefit to career
offenders,” while generally correct, is not invariably so.
“Generally correct” is worth emphasizing, however,
as we have found only one reported appellate case prior
to the present one in which a career offender’s
sentencing range decreased as a result of a retroactive
amendment to section 2D1.1: United States v. Jones, 596
F.3d 273, 275-77 (5th Cir. 2010). In two other reported
cases a retroactive amendment to that section reduced
a career offender’s offense level, but, unlike Jones and
the present case, not his guidelines range: United States
v. Taylor, supra, 627 F.3d at 676; United States v. Washington,
supra, 618 F.3d at 870–73. In these cases, at the original
sentencing the defendant’s offense level under section
2D1.1 exceeded his offense level in the section 4B1.1(b)
table as a career offender; and so, as in our case, Amend-
ment 706 lowered the defendant’s offense level. But as a
result, the career-offender offense level now exceeded
the section 2D1.1 offense level, and as a result of the
specification of offense levels in Table 4B1.1(b) neither
defendant’s sentencing range decreased and so neither
was eligible for relief under 18 U.S.C. § 3582(c)(2). These
cases are similar to the present case insofar as the de-
fendants’ offense levels did decline even though
they were career offenders, but are consistent with
the statement in Forman because the defendants’ guide-
lines ranges did not decrease and as a result they
No. 12-1871 5
did not benefit from the retroactive amendments, as
the defendant in this case and the defendant in Jones did.
Counsel’s motion to withdraw is granted and the
appeal is
D ISMISSED.
9-21-12