[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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

(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,

(1984). The

judgment denying the petition brought under

is affirmed.

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