

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                    [NOT FOR PUBLICATION]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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