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

                                                FILED
                                                                October 20, 2009
                                No. 09-10023
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

OTHNIEL MCKINNEY, SR.,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 2:93-CR-29-16


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Othniel McKinney, Sr., federal prisoner # 24693-077, was convicted by a
jury of one count of conspiracy to distribute and to possess with intent to
distribute cocaine base (crack), and he was sentenced to life in prison. That
sentence was reduced in 1996 to 360 months following amendments to the
Sentencing Guidelines imposing a maximum base offense level of 38 for drug
offenses. Based on 2007 amendments to the Sentencing Guidelines that lowered



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 09-10023

base offense levels for crack cocaine offenses, McKinney moved for another
reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the
motion on the basis that McKinney’s base offense level remained 38 even with
the amendments. McKinney now appeals, arguing that the district court had
the authority in light of United States v. Booker, 543 U.S. 220 (2005), and its
progeny to reduce his sentence notwithstanding the contrary policy statement
set out in U.S.S.G. § 1B1.10.
      We recently rejected materially indistinguishable arguments in United
States v. Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed
(Sept. 21, 2009) (No. 09-6657). Accordingly, the judgment of the district court
is AFFIRMED.




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