USA v. Allende

Filing

UNPUBLISHED OPINION FILED. [08-20447 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 12/03/2010 [08-20447]

USA v. Allende

Case: 08-20447 Document: 00511292143 Page: 1 Date Filed: 11/12/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-20447 S u m m a r y Calendar November 12, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A N D R E S AYALA ALLENDE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:93-CR-312-3

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A n d r e s Ayala Allende, federal prisoner # 60918-079, was convicted by a j u r y in 1994 of conspiracy to possess with intent to distribute in excess of 50 g r a m s of cocaine base and of possession with intent to distribute in excess of 50 g r a m s of cocaine base and aiding and abetting. The district court sentenced him t o 292 months of imprisonment. The district court reduced the sentence in 1996 t o 235 months following amendments to the Sentencing Guidelines imposing a m a x im u m base offense level of 38 for drug offenses. Based on 2007 amendments
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 08-20447 Document: 00511292143 Page: 2 Date Filed: 11/12/2010 No. 08-20447 t o the Sentencing Guidelines that lowered base offense levels for crack cocaine o ffe n s e s , Ayala moved for a reduction pursuant to 18 U.S.C. § 3582(c)(2). The d is t r ic t court denied the motion on the basis that Ayala's base offense level r e m a in e d 38 even with the amendments. Ayala now appeals, arguing that the d is t r ic t court had the authority in light of United States v. Booker, 543 U.S. 220 (2 0 0 5 ), and its progeny to reduce his sentence notwithstanding the contrary p o lic y statement set out in U.S.S.G. § 1B1.10. W e recently rejected materially indistinguishable arguments in United S t a te s v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2 0 0 9 ). Accordingly, the judgment of the district court is AFFIRMED.

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