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U.S. v. Tupuola, No. 08-10422 (11-24-09). Defendant was convicted of selling crack, but in 2000 was sentenced as a career offender under USSG 4B1.1. He had argued for a downward departure based on the disparity between the crack guidelines (51 to 63 months) and the career offender guidelines (188 to 235 months). The district court acknowledged it had the authority to depart, but declined to do so, and sentenced the defendant to 188 months. Subsequently, several years later, as a result of the Sentencing Commission addressing the crack disparity with powder cocaine, the guidelines for crack were made retroactive. Defendant moved the court for a reduction. The district court denied the motion, reasoning that its sentence was based on the career offender guideline and not the crack guidelines. The 9th agreed. In an opinion authored by Beezer, and joined by Graber and Fisher, the 9th held that it has recently decided that career offenders are not eligible for sentence reductions under the amendment. U.S. v. Wesson, No. 08-30177, 2009 WL 3336020 (9th Cir. Oct. 19, 2009). The 9th did not allow a reduction even if the argument for disparity was raised because the sentence was really "based on" the career offender guidelines. "Based on" is more than merely considering others factors. See U.S. v. Bride, 581 F.3d 888 (9th Cir. 2009).

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