
USCA1 Opinion

	




          July 18, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                 __________                                         -3-
