NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0294n.06
No. 09-5300
FILED
UNITED STATES COURT OF APPEALS May 05, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ZORIDA BLEWETT, ) WESTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Zorida Blewett,
pleaded guilty to charges of conspiracy to possess with intent to distribute 50 or more
grams of cocaine base, aiding and abetting possession with intent to distribute 50 or more
grams of cocaine base, and aiding and abetting distribution of cocaine base. In May 2002,
the district court concluded that Blewett was a career offender, as defined by section 4B1.1
of the United States Sentencing Guidelines, and sentenced him to an effective term of 262
months in prison. However, following the 2007 amendment to section 2D1.1(c) of the
Guidelines – an amendment that reduced the base offense calculation for most crack
cocaine offenses by two levels – the district court directed the probation deparatment to
recalculate the defendant’s potential sentence “[a]s a result of the retroactive application
No. 09-5300
United States v. Blewett
of the crack cocaine amendment.” See USSG Supp. App. C, Amend. 706 (effective Nov.
1, 2007).
After performing that recalculation, the probation department determined that
Blewett’s sentencing range – 262 to 327 months – would remain the same, even after the
amendment, because the career-offender guidelines, under which the defendant had been
sentenced, had not been altered by Amendment 706. The district court agreed with the
probation office’s assessment and overruled Blewett’s objections to the recalculation. The
defendant filed a timely notice of appeal from that ruling and now seeks sentencing relief
from this court.
On appeal, Blewett quotes the explicit language of 18 U.S.C. § 3582(c)(2) in arguing
that the sentence imposed upon him should be modified. In that subsection, Congress
provided:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on its
own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
Id. (emphasis added).
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No. 09-5300
United States v. Blewett
The defendant insists that, because Amendment 706 reduced by two the base
offense levels for the crack cocaine amounts that were previously listed in section 2D1.1(c)
of the Guidelines, his career-offender-enhanced sentence should also be reduced. Blewett
reasons that one step in assessing punishment for a career offender is determining
whether “the offense level for a career offender from the table in [§ 4B1.1(b)] is greater
than the offense level otherwise applicable.” USSG § 4B1.1(b). Thus, he contends, a
court must necessarily calculate “the offense level otherwise applicable” and, because that
offense level has been reduced through operation of Amendment 706, he has in fact “been
sentenced to a term of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.”
Blewett’s argument, however, is foreclosed by our decision in United States v.
Perdue, 572 F.3d 288 (6th Cir. 2009), cert. denied, 130 S. Ct. 1537 (2010). In Perdue, we
recognized that any “alternative base offense level under § 2D1.1 ultimately [does] not
affect the calculation of the sentencing range under the career offender classification,
§ 4B1.1,” and that, as a result, “Amendment 706 has no effect on the ultimate sentencing
range imposed . . . under the career-offender Guideline.” Id. at 293. That determination
is now the “law of the circuit” and “remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this
Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health and Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985).
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No. 09-5300
United States v. Blewett
In an alternative argument contained in his brief filed prior to the United States
Supreme Court’s decision in Dillon v. United States, 130 S. Ct. 2683 (2010), Blewett
contends that all Guidelines provisions are advisory only and, therefore, that a sentence
modification occasioned by operation of Amendment 706 would not necessarily be limited
to a two-level reduction and, inferentially, would not necessarily be constrained by any
career-offender provisions. In Dillon, however, the Court ruled that even United States v.
Booker, 543 U.S. 220 (2005), which directed courts to treat Guidelines sentencing ranges
as advisory rather than mandatory, does not permit district courts in proceedings under 18
U.S.C. § 3582(c) to reduce a sentence below the revised Guidelines range authorized by
Amendment 706. See Dillon, 130 S. Ct. at 2691-92. Instead, the Court held:
[Section 3582(c)(2)] permits a sentence reduction [only] within the narrow
bounds established by the [Sentencing] Commission. The relevant policy
statement instructs that a court proceeding under § 3582(c)(2) “shall
substitute” the amended Guidelines range for the initial range “and shall
leave all other guideline application decisions unaffected.” [U.S.S.G.]
§ 1B1.10(b)(1). Because the aspects of his sentence that Dillon seeks to
correct were not affected by the Commission’s amendment to § 2D1.1, they
are outside the scope of the proceeding authorized by § 3582(c)(2), and the
District Court properly declined to address them.
Id. at 2694.
Similarly, Amendment 706 effected no change to the Guidelines’ career-offender
provisions. Dillon thus does not undermine our prior decision in Perdue. Bound as we are
by that earlier ruling, we are not now free to grant Blewett the relief he seeks. The
judgment of the district court is, therefore, AFFIRMED.
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