United States of America v. Kenneth R. Dowthard

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NONPRECEDENTIAL DISPOSITION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. 32.1

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No. 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 defendantʹs 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.

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