Opinion
Criminal No. 95-91-1.
June 30, 1997
MEMORANDUM AND ORDER
Defendant Damon Beverly was convicted of robbing a mail carrier, and of using a firearm in the course of that robbery. He has now filed a petition pursuant to 28 U.S.C. § 2255. For the reasons that follow, the petition will be denied.
Defendant contends first that this Court lacked subject matter jurisdiction to try him for what he believes was a violation of state law. He is mistaken. The assault of a mail carrier with intent to rob mail matter is a federal crime, see 18 U.S.C. § 2114, and plainly within the power of Congress to proscribe.
Second, defendant argues that the use of a firearm during the robbery was not a crime, but a "penalty," and that he was subjected to double jeopardy because he received both the five-level enhancement for that conduct provided by USSG § 2B3.1(b)(2)(D), as well as a penalty under 18 U.S.C. § 924(c) (use of a firearm during the commission of a crime of violence). His argument is without merit. Because of his conviction on the firearm count, defendant did not receive the Guidelines enhancement.
Third, defendant contends that this Court failed to apply USSG § 5G1.3 to adjust his sentence in order to take into account an unsatisfied 18-month term of imprisonment. Defendant neglects to mention that this state sentence appears to have been imposed because he committed the instant offense while on supervised release. The Guidelines provide:
If the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to run consecutively to the term imposed for the violation of probation, parole, or supervised release in order to provide an incremental penalty for the violation of probation, parole, or supervised release.
USSG § 5G1.3, comment (n. 6).
Fourth, defendant believes that he was entitled to a downward departure based on his history of drug abuse. This argument must also fail. The position of the U.S. Sentencing Commission is clear: "Drug or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines." USSG § 5H1.4; see also United States v. Pharr, 916 F.2d 129, 133 (3d Cir. 1990) ("[D]ependence upon drugs, or separation from such a dependency, is not a proper basis for a downward departure from the guidelines.").
Finally, defendant questions the authority of the Bureau of Prisons to collect from his inmate account the fine imposed upon him at sentencing. This is neither a constitutional nor jurisdictional issue. It is not a fundamental defect resulting in a miscarriage of justice. The issue is simply not cognizable under § 2255.
An Order follows.