United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-30671
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA FAYE HAWKINS SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-30044-2
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Linda Faye Hawkins Smith appeals the sentence imposed by the
district court after she pleaded guilty to conspiracy to possess
with intent to distribute five or more grams of cocaine base.
She argues that under Apprendi v. New Jersey, 530 U.S. 466
(2000), the district court erred in holding her responsible for a
larger amount of cocaine base for relevant conduct purposes than
the amount alleged in the indictment and found by the jury in her
first trial. She acknowledges that this argument is foreclosed
*
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that this opinion should not be published and is not precedent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.
No. 03-30671
-2-
by United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), but
she states that she is raising it to preserve it for possible
Supreme Court review. Apprendi does not invalidate a sentencing
court’s factual findings concerning drug quantity for the
purposes of determining the applicable Sentencing Guidelines in
cases where those findings cause a defendant’s guideline range to
shift within the statutory range. Doggett, 230 F.3d at 266;
United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1748 (2003).
Smith also argues that under the Double Jeopardy Clause, she
cannot be held responsible for a drug quantity greater than the
amount found by the jury in the first trial. Double jeopardy did
not bar retrial in this case because Smith’s first conviction was
reversed due to a due process violation, and not due to
insufficient evidence. See Burks v. United States, 437 U.S. 1,
15-17 (1978); Shute v. State of Texas, 117 F.3d 233, 238 (5th
Cir. 1997).
AFFIRMED.