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U.S. v. Wesson, No. 08-30177 (10-19-09). What's worse than being sentenced for a crack offense? Being sentenced as a career offense. The 9th joins its sister circuits (1st, 2nd, 3rd, 6th, 7th, and 8th) in holding that because a defendant was sentenced as a career offender, he is thus not eligible for a reduction of his prior sentence under amendment 706. The defendant had been convicted of a crack drug offense. He was a career offender, and the district court sentenced him as such, and the court's departure for diminished capacity (5K2.13) was from the career offender guideline. His sentence was not under 2D1.1. The departure did not change this analysis, and indeed, the district court stated that it had sentenced him as a career offender. The 9th (Tallman joined by W. Fletcher and Gould) did state that its analysis might be different if the district court had found that the career offender guideline overstated the seriousness of the offense, and had sentenced him, through a departure, under 2D1.1. That was not the case here.

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