U.S. v. Waters, No. 10-50256 (8-19-11) (Fisher with Pregerson and Berzon).

This concerns the interplay between retroactivity of the Guidelines crack reduction and career offender. "Interplay" may not be the right word; career offender "bullying" is more like it. The defendant was sentenced for crack cocaine. The court found he was a career offender, but his Guidelines were higher (what does that say about the crack/cocaine disparity?). Once the Commission reduced the crack offense level, and permitted retroactivity, the defendant argued that he should get the benefit. The district court did not grant it because the career offender was higher, and the retroactivity notes do not affect other operations of the Guidelines. The 9th agreed, and dismissed the appeal for jurisdiction. The 9th stressed that the district court had found previously he was a career offender, and that the application of the drug guidelines was really an application of the career offender guidelines because the greater sentence.