               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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).




                                            -2-
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).



                                             -3-
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.

                                          -4-
