United States v. Loyejoy
Opinion of the Court
In 1990, Lovejoy pleaded guilty to seven bank robberies (counts 1-7) in violation of 18 U.S.C. § 2113(a) and (d), and use of a firearm during a crime of violence (count 8) in violation of 18 U.S.C. § 924(c). The district court sentenced him to 135 months of imprisonment for the bank robberies and 60 months for use of a firearm, to be served consecutively. Lovejoy filed a notice of appeal, and then voluntarily dismissed the appeal.
In December 2000, Lovejoy filed a § 3582(c) motion to modify his sentence and an addendum, arguing that: 1) the district court engaged in improper double counting by punishing him twice for the same conduct because his sentence for armed bank robbery was enhanced for brandishing a firearm even though he was also sentenced for use of a firearm in relation to a crime of violence; and 2) he was entitled to a downward departure because he committed the offenses while suffering from a compulsive gambling disorder. Upon review, the district court denied Lovejoy’s first claim as without merit and denied the motion. The court did not specifically address the second claim. Lo-vejoy has filed a timely appeal, essentially reasserting his claims.
Upon review, we conclude that the district court did not abuse its discretion when it denied Lovejoy’s § 3582 motion. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997). The district court did not improperly enhance Love-joy’s offense level with respect to his bank robbery convictions. See United States v. O’Dell, 247 F.3d 655, 674 (6th Cir. 2001); United States v. Murphy, 241 F.3d 447, 458 (6th Cir. 2001). When a defendant is convicted of a § 924(c) violation and an underlying offense, the defendant’s possession of a weapon cannot be used to enhance the level of the underlying offense. See United States v. Diaz, 248 F.3d 1065, 1106-07 (11th Cir. 2001). In this case, Lo-vejoy’s sentence was enhanced three levels, under § 2B3.1(b)(2)(C), for brandishing a firearm only with respect to the bank robberies represented in counts 1 through 6. Lovejoy did not receive an enhancement for brandishing a firearm with respect to the bank robbery represented in count 7. Rather, count 7 served as the basis for Lovejoy’s conviction for using a firearm during a crime of violence (count 8). As such, Lovejoy’s sentence was in compliance with Application Note 2 to USSG § 2K2.4, Amendment 599, which provides that if a defendant is convicted of more than one armed bank robbery, but is convicted under § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the § 924(c) conviction. We also conclude that Lovejoy was not entitled to a reduction based on his alleged diminished capacity. Lovejoy argued that, pursuant to USSG § 5K2.13, he was entitled to such a reduction because he committed the offenses while suffering from a compulsive gambling disorder. However, § 5K2.13(2) expressly provides that a court may not depart downward when the offense involved actual violence or a serious threat of violence. Here, Lo-vejoy’s offenses involved a serious threat of violence. Lovejoy does not dispute that he committed seven bank robberies while armed with a loaded weapon. He also does not dispute that the police shot him as he fled.
Reference
- Full Case Name
- United States v. Marvin LOYEJOY
- Cited By
- 1 case
- Status
- Published