United States v. Cumming ( 1996 )

July 18, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1266
UNITED STATES,
Appellee,
v.
PETER M. CUMMING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
No. 96-1267
UNITED STATES,
Appellee,
v.
PETER M. CUMMING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Peter M. Cumming on brief pro se.
Jay P. McCloskey, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, on brief for appellee.
Per Curiam. In No. 96-1266, the order denying
appellant's motion for reduction of sentence is summarily
affirmed. See Loc. R. 27.1. Amendment 517 to the Sentencing
Guidelines, which took effect in November 1995 and which
appellant seeks to invoke, is not among those listed in
U.S.S.G. 1B1.10(c) and so does not apply retroactively.
See id. 1B1.10(a) ("If none of the amendments listed in
subsection (c) is applicable, a reduction in the defendant's
term of imprisonment under 18 U.S.C. 3582(c)(2) is not
consistent with this policy statement and thus is not
authorized."); see also, e.g., United States v. Lopez-Pineda,
55 F.3d 693, 697 n.3 (1st Cir.), cert. denied, 116 S. Ct. 259(1995); Desouza v. United States, 995 F.2d 323, 324 (1st Cir.
1993) (per curiam). Appellant's contention that the
Sentencing Commission lacks the authority to decide which
amendments will be given retroactive effect is mistaken. See
Braxton v. United States, 500 U.S. 344, 348 (1991) (citing 28
U.S.C. 994(u)). And the suggestion that his base offense
level (BOL) should have been capped at 20 is based on a
misreading of the Guidelines.1
1
1 Several asterisked footnotes in the Drug Equivalency
1
Tables, see U.S.S.G. 2D1.1, comment. (n.10), state that
"the combined equivalent weight of all Schedule I or II
depressants, Schedule III substances, Schedule IV substances,
and Schedule V substances shall not exceed 59.99 kilograms of
marihuana." (That weight, under the Drug Quantity Table in
2D1.1(c), translates into a maximum BOL of 20.) Yet
appellant's conviction involved a Schedule II opiate rather
than a depressant, along with a Schedule IV substance. The
20-BOL cap is thus inapplicable.
-2-
In No. 96-1267, the judgment dismissing appellant's 28
U.S.C. 2255 petition is summarily affirmed. See Loc. R.
27.1. As the district court properly observed, the only
specific allegations of ineffective assistance of counsel
that were there advanced involve the assertion that a double
jeopardy defense was not adequately raised. This court
explicitly rejected appellant's double jeopardy argument on
direct appeal. See United States v. Cumming, No. 93-1960,
1994 WL 413368, at *1 (1st Cir. 1994) (per curiam); see also
Cumming v. United States, No. 94-2070, 1995 WL 463097, at *1
(1st Cir. 1995) (per curiam) (noting that such claim had
earlier been rejected). As a result, the assertion that
counsel was ineffective in that regard necessarily falters.
The motion for bail pending appeal is denied.
So ordered.
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