     Case: 09-40301     Document: 00511075597          Page: 1    Date Filed: 04/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 9, 2010
                                     No. 09-40301
                                   Summary Calendar                         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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       Date Filed: 04/09/2010
                                No. 09-40301

sentencing between crack and powdered cocaine.           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.




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