# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 15, 2009

Decided January 28, 2009

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08

‐ 3342

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

KENNETH R. DOWTHARD,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District

of Illinois, Western Division.

No. 05

‐ CR

‐ 50052

Philip G. Reinhard,

Judge

.

O R D E R

In the belief that Amendment 706 to the U.S. Sentencing Guidelines entitles him to a

lower sentence, Kenneth Dowthard filed a motion pursuant to 18 U.S.C. § 3582(c)(2) on

May 8, 2008, seeking a reduction in his sentence. In 2006, Dowthard had been convicted

following a guilty plea of possession of crack cocaine with intent to distribute it and of

unlawful possession of a firearm by a felon. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1).

When the time came for sentencing, the parties agreed that Dowthard was a career offender

as defined in U.S.S.G. § 4B1.1, and thus that his offense level was 32 prior to a reduction for

acceptance of responsibility and his criminal history was VI. The district court calculated NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 3342 Page 2

an advisory sentencing range of 151 to 188 months and imposed a sentence of 156 months.

Dowthard appealed on various grounds, but this court affirmed his conviction and

sentence. See United States v. Dowthard, 500 F.3d 567 (7th Cir. 2007).

On November 1, 2007, Amendment 706 to the Sentencing Guidelines became effective.

In general, it reduced the base offense level applicable to crack cocaine offenders. Later, on

December 11, 2007, the Sentencing Commission added Amendment 706 to the list of

amendments in U.S.S.G. § 1B1.10(c) that may be applied retroactively.

This is what prompted Dowthard’s motion, but, as we held recently in United States v.

Forman, Nos 08

‐ 2177 et al., 2009 WL 140502 (7th Cir. Jan. 22, 2009), the benefits of

Amendment 706 are not available to people in Dowthard’s position. The following passage

explaining why Gregory Forman’s motion under § 3583(c)(2) was properly rejected applies

with equal force to Dowthard’s situation:

Forman challenges the denial of his § 3582(c)(2) motion and the denial of his

motion to (again) appoint counsel. He cannot prevail in his pursuit of a lesser

sentence because Amendment 706 provides no benefit to career offenders. See

United States v. Liddell

, 543 F.3d 877, 882 n. 3 (7th Cir.2008); United States v. Sharkey

,

543 F.3d 1236, 1239 (10th Cir.2008); United States v. Moore

, 541 F.3d 1323, 1327

‐ 28

(11th Cir.2008); United States v. Thomas

, 524 F.3d 889, 890 (8th Cir.2008); see also

Harris

, 536 F.3d at 813 (“[A] sentence entered under the career offender guideline,

§ 4B1.1, raises no Kimbrough problem because to the extent it treats crack cocaine

differently from powder cocaine, the disparity arises from a statute, not from the

advisory guidelines.”). Forman’s guidelines range was 262 to 327 months before

Amendment 706, and it remains so. Here, “the amendment does not have the effect

of lowering the defendant ʹ s applicable guideline range because of the operation of

another guideline”

– namely the career

‐ offender provision. U.S.S.G. § 1B1.10, cmt.

n. 1(A).

Forman, 2009 WL 140502 at *3.

Dowthard’s guidelines range, like Forman’s, resulted from the application of the career

offender guideline, not the drug guidelines. Amendment 706 had nothing to say about

career offenders, and so the district court properly denied Dowthard’s motion.

A FFIRMED

.