USA v. Albert Smith, III

Filing 511075597

Case: 09-40301

Document: 00511075597

Page: 1

Date Filed: 04/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40301 S u m m a r y Calendar April 9, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. A L B E R T SMITH, III, 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 Eastern District of Texas U S D C No. 1:03-CR-41-1

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A lb e r t Smith, III, federal prisoner # 10498-078, appeals the district court's ju d g m e n t denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(C)(2) based on the amendment of the crack cocaine Sentencing G u id e l in e s . Smith argues that in denying the motion, the district court treated th e Guidelines as mandatory in violation of United States v. Booker, 543 U.S. 2 2 0 (2005) and Kimbrough v. United States, 552 U.S. 85 (2007), and thus, failed to consider the purpose of the amendment, which was to cure the disparity in
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40301

Document: 00511075597 Page: 2 No. 09-40301

Date Filed: 04/09/2010

s e n te n c i n g between crack and powdered cocaine.

He asserted that his

s e n t e n c in g under the career offender Guideline did not preclude a reduction of h is sentence under § 3582(c)(2). S m it h 's argument that his sentencing under the career offender Guideline d o e s not preclude a reduction of his sentence is foreclosed by this court's p r e c e d e n t. See United States v. Anderson, 591 F.3d 789, 790 & n.4, 791 & n.8. H is arguments based on the Booker and Kimbrough decisions are foreclosed by o u r decision in United States v. Doublin, 572 F.3d 235, 236-29 (5th Cir.), cert. d e n i ed , 130 S. Ct. 517 (2009). A c c o r d in g ly , the Government's motion for summary affirmance is G R A N T E D , and the judgment of the district court is AFFIRMED. The

G o v e r n m e n t 's alternative motion for an extension of time in which to file a brief is DISMISSED AS MOOT.

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