United States v. Gay

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10484
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TODD WILLIAM GAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-494-G-1
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Todd William Gay, federal prisoner # 23676-077, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to
reduce his sentence based on Amendment 599 to U.S.S.G. § 2K2.4
(relating to use of a firearm in relation to a crime of
violence). Gay argues that the five-year consecutive sentence he
received for his conviction under 18 U.S.C. § 924(c), and the
presentence report’s five-level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(2)(C) for brandishing a firearm, resulted in double
counting.

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No. 01-10484
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Because the weapon enhancement applied only to the February
bank robbery, which was not the basis for the 18 U.S.C. § 924(c)
conviction, there was no double counting/Amendment 599 violation.
See U.S.S.G. § 2K2.4, comment. (n.2).
AFFIRMED.

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