USA v. Albert Smith, III, No. 09-40301 (5th Cir. 2010)
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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 No. 09-40301 Summary Calendar April 9, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALBERT SMITH, III, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-41-1 Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:* Albert Smith, III, federal prisoner # 10498-078, appeals the district court s judgment 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 Guidelines. Smith argues that in denying the motion, the district court treated the Guidelines as mandatory in violation of United States v. Booker, 543 U.S. 220 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-40301 Document: 00511075597 Page: 2 No. 09-40301 sentencing between crack and powdered cocaine. Date Filed: 04/09/2010 He asserted that his sentencing under the career offender Guideline did not preclude a reduction of his sentence under § 3582(c)(2). Smith s argument that his sentencing under the career offender Guideline does not preclude a reduction of his sentence is foreclosed by this court s precedent. See United States v. Anderson, 591 F.3d 789, 790 & n.4, 791 & n.8. His arguments based on the Booker and Kimbrough decisions are foreclosed by our decision in United States v. Doublin, 572 F.3d 235, 236-29 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Accordingly, the Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government s alternative motion for an extension of time in which to file a brief is DISMISSED AS MOOT. 2
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