Filed: Nov. 09, 2001
Latest Update: Feb. 21, 2020
Summary: Steven Musone on brief pro se., Margaret E. Curran, United States Attorney, Donald C., Lockhart and Gerard B. Sullivan, Assistant United States, Attorneys, on brief for appellee.sentencing.jeopardy argument.result not intended by Congress.substantive offense of arson.
[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2482
STEVEN MUSONE,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Steven Musone on brief pro se.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Gerard B. Sullivan, Assistant United States
Attorneys, on brief for appellee.
October 3, 2001
Per Curiam. The district court issued a certificate
of appealability to Mr. Musone limited to the question of
whether he received effective assistance of counsel at his
sentencing. The claim of ineffective assistance rests
solely on defense counsel's failure to raise a double
jeopardy argument. Mr. Musone contends that because his
sentence under the United States Sentencing Guidelines was
determined with reference to the guidelines for arson, the
imposition of the statutory enhancement for use-of-fire in
the commission of a felony, under 18 U.S.C. § 844(h),
constitutes multiple punishment for the same offense, a
result not intended by Congress.
Mr. Musone was convicted on six counts, including
one of conspiracy to commit arson and mail fraud. The
federal appellate courts that have addressed the issue agree
that conspiracy to commit arson is not the same offense as
use-of-fire in the commission of a felony. Under the
Guidelines, Mr. Musone's sentence on the arson-related group
of charges was properly based on the offense level of the
substantive offense of arson. Congress has provided a
mandatory enhancement under § 844(h) for the use of fire in
the commission of a felony and the courts have no power to
disregard it. The fact that Mr. Musone committed arson as
well as other offenses does not insulate him from punishment
for the separate offenses of conspiracy and use-of-fire to
commit a felony. Defense counsel's decision not to raise an
argument not supported by the law of this or any other court
of appeals does not constitute deficient representation
under Strickland v. Washington,
466 U.S. 668 (1984). The
judgment denying the petition brought under 28 U.S.C. § 2255
is affirmed.
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