                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 10, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-30671
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LINDA FAYE HAWKINS SMITH,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 02-CR-30044-2
                       --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Linda Faye Hawkins Smith appeals the sentence imposed by the

district court after she pleaded guilty to conspiracy to possess

with intent to distribute five or more grams of cocaine base.

She argues that under Apprendi v. New Jersey, 530 U.S. 466

(2000), the district court erred in holding her responsible for a

larger amount of cocaine base for relevant conduct purposes than

the amount alleged in the indictment and found by the jury in her

first trial.   She acknowledges that this argument is foreclosed


     *
        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that this opinion should not be published and is not precedent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.
                            No. 03-30671
                                 -2-

by United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), but

she states that she is raising it to preserve it for possible

Supreme Court review.    Apprendi does not invalidate a sentencing

court’s factual findings concerning drug quantity for the

purposes of determining the applicable Sentencing Guidelines in

cases where those findings cause a defendant’s guideline range to

shift within the statutory range.    Doggett, 230 F.3d at 266;

United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002), cert.

denied, 123 S. Ct. 1748 (2003).

     Smith also argues that under the Double Jeopardy Clause, she

cannot be held responsible for a drug quantity greater than the

amount found by the jury in the first trial.   Double jeopardy did

not bar retrial in this case because Smith’s first conviction was

reversed due to a due process violation, and not due to

insufficient evidence.    See Burks v. United States, 437 U.S. 1,

15-17 (1978); Shute v. State of Texas, 117 F.3d 233, 238 (5th

Cir. 1997).

     AFFIRMED.
