Case: 08-20447 Document: 00511292143 Page: 1 Date Filed: 11/12/2010




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

                                                 FILED
                                                                         November 12, 2010
                                     No. 08-20447
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANDRES AYALA ALLENDE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:93-CR-312-3


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Andres Ayala Allende, federal prisoner # 60918-079, was convicted by a
jury in 1994 of conspiracy to possess with intent to distribute in excess of 50
grams of cocaine base and of possession with intent to distribute in excess of 50
grams of cocaine base and aiding and abetting. The district court sentenced him
to 292 months of imprisonment. The district court reduced the sentence in 1996
to 235 months following amendments to the Sentencing Guidelines imposing a
maximum base offense level of 38 for drug offenses. Based on 2007 amendments

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-20447 Document: 00511292143 Page: 2 Date Filed: 11/12/2010

                                  No. 08-20447

to the Sentencing Guidelines that lowered base offense levels for crack cocaine
offenses, Ayala moved for a reduction pursuant to 18 U.S.C. § 3582(c)(2). The
district court denied the motion on the basis that Ayala’s base offense level
remained 38 even with the amendments. Ayala now appeals, arguing that the
district court had the authority in light of United States v. Booker, 

(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, 

, 236-39 (5th Cir.), cert. denied, 

(2009). Accordingly, the judgment of the district court is AFFIRMED.




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