United States v. Linzey Smith , 390 F. App'x 690 ( 2010 )

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NOT FOR PUBLICATION AUG 02 2010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.
2 09-30167