United States v. Brice

20 F. App'x 155

Opinion

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. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987). Furthermore, Brice’s claim concerning the computation of his sentence under the Guidelines alleges non-constitutional error which may not now be assert ed on collateral review. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (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.