                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30167

               Plaintiff - Appellee,             D.C. No. 2:04-CR-00096-JLQ

  v.

LINZEY SMITH,                                    MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of Washington
                  Justin L. Quackenbush, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Linzey Smith appeals pro se from the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

       Smith contends the district court erred by rejecting his argument that the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
enhancement of his sentence, once for being an armed career criminal under

18 U.S.C. § 924(e) and again for possessing a firearm in connection with a felony

assault under U.S.S.G. § 2K2.1(b)(5), constituted impermissible “double counting”

in contravention of Amendment 599 of the United States Sentencing Guidelines.

This contention fails because the district court properly concluded that Amendment

599 does not apply to or modify the guidelines under which Smith was sentenced.

See U.S.S.G. § 2K2.4; see also United States v. Archdale, 229 F.3d 861, 869

(9th Cir. 2000) (acknowledging that sentencing commission plainly understands

concept of double counting and expressly forbids it where it is not intended).

      Accordingly, we grant the government’s motion for summary affirmance of

the district court’s judgment. See United States v. Hooton, 693 F.2d 857, 858

(9th Cir. 1982) (per curiam) (stating standard).

      AFFIRMED.




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