In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1871

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ULYSSES WILLIAMS,

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.

SUBMITTED AUGUST 28, 2012—DECIDED SEPTEMBER 21, 2012

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, 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 responsibility 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 guidelines 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 amendment did not reduce the offense level for the weight

(1.3 kilograms) of crack that the defendant had conspired to distribute. But another amendment to the guidelines—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 statement is imprecise, as the present case shows, because

not all (though certainly most) career offenders are sentenced 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, Amendment 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 defendants’ offense levels did decline even though

they were career offenders, but are consistent with

the statement in Forman because the defendants’ guidelines 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

DISMISSED.

9-21-12