District court's imposition of a sentence of 262 months' imprisonment followed by six years of supervised release on a defendant convicted of possession and sale of crack cocaine within 1000 feet of a public school is affirmed in part and reversed in part and remanded where: 1) the government has not met its burden of showing that an error by the district court was harmless because it cannot be concluded that the court would have imposed the same sentence had it known that the career offender Guidelines were advisory; and 2) a denial of defendant's motion for a reduced sentence is affirmed as his career offender status disqualified him from receiving a reduced sentence under Guidelines Amendment 706 for crack cocaine offenses under Guideline 2D1.1.
Argued: October 15, 2009
Decided and Filed: January 15, 2010
Opinion by Circuit Judge Martin
For Appellant: Gary W. Crim, Law Office
For Appellee: Edward F. Ferran, Assistant United States Attorney