United States v. Brice

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 01-6678 JIMMY BRICE, Defendant-Appellant.  Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (CR-94-259) Submitted: September 20, 2001 Decided: October 1, 2001 Before LUTTIG, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Jimmy Brice, Appellant Pro Se. Marshall Prince, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. BRICE OPINION PER CURIAM Jimmy Brice appeals the denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) (1994), by margin order dated March 28, 2001. Brice’s motion alleged both a double jeopardy violation and impermissible double counting under the Sentencing Guidelines in the calculation of his sentence. However, Brice’s motion raises no basis for proceeding under § 3582(c)(2), as his motion fails to identify any guidelines range modified pursuant to 28 U.S.C. § 994(o) (1994) as required by § 3582(c)(2). Furthermore, to the extent Brice seeks collateral review of his conviction and sentence on the aforementioned bases, we find Brice cannot obtain relief on either. With respect to Brice’s double jeopardy challenge, a conviction under both 18 U.S.C.A. § 2113(d) (West 2000) and § 924(c) for the same offense does not constitute double jeopardy. United States v. Shaver, 820 F.2d 1375, 1377-78 (4th Cir. 1987). Furthermore, Brice’s claim concerning the computa- tion of his sentence under the Guidelines alleges non-constitutional error which may not now be asserted on collateral review. See Stone v. Powell, 428 U.S. 465 (1976). Accordingly, we affirm the district court’s dismissal of Brice’s § 3582(c)(2) motion and dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED