United States v. Dwayne Keith Fitzen

Ninth Circuit

United States v. Dwayne Keith Fitzen

134 F.3d 380, 1998 U.S. App. LEXIS 4220

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 16, 1998

Docket19-1118

StatusUnpublished

This text of 134 F.3d 380 (United States v. Dwayne Keith Fitzen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Dwayne Keith Fitzen, 134 F.3d 380, 1998 U.S. App. LEXIS 4220 (9th Cir. 1998).

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134 F.3d 380

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dwayne Keith FITZEN, Defendant-Appellant.

No. 97-35222.

United States Court of Appeals, Ninth Circuit.

Submitted January 12, 1998**
Jan. 16, 1998.

Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.

MEMORANDUM*

Dwayne Keith Fitzen, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate the sentence imposed after his guilty plea in 1985 to conspiracy to distribute, distribution of cocaine, and possession of a firearm by a felon. We reject the government's contention that Fitzen may not challenge his 1985 conviction, on which he is in custody for a probation violation, because he also is serving a concurrent term of imprisonment on a 1992 conviction for conspiracy and distribution of cocaine. See United States v. DeBright, 730 F.2d 1255, 1260 (9th Cir.1984) (en banc) (rejecting concurrent sentence doctrine). Fitzen contends that multiple civil forfeiture proceedings pursuant to 21 U.S.C. § 881(a)(6) barred his criminal conviction. This double jeopardy challenge is foreclosed by United States v. Ursery, 116 S.Ct. 2135, 2149 (1996) (civil forfeitures pursuant to 21 U.S.C. § 881 are neither punishment nor criminal for purposes of Double Jeopardy Clause). Accordingly, we affirm the denial of Fitzen's § 2255 motion.

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

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134 F.3d 380

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dwayne Keith FITZEN, Defendant-Appellant.

No. 97-35222.

United States Court of Appeals, Ninth Circuit.

Submitted January 12, 1998**
Jan. 16, 1998.

Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.

MEMORANDUM*

Dwayne Keith Fitzen, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate the sentence imposed after his guilty plea in 1985 to conspiracy to distribute, distribution of cocaine, and possession of a firearm by a felon. We reject the government's contention that Fitzen may not challenge his 1985 conviction, on which he is in custody for a probation violation, because he also is serving a concurrent term of imprisonment on a 1992 conviction for conspiracy and distribution of cocaine. See United States v. DeBright, 730 F.2d 1255, 1260 (9th Cir.1984) (en banc) (rejecting concurrent sentence doctrine). Fitzen contends that multiple civil forfeiture proceedings pursuant to 21 U.S.C. § 881(a)(6) barred his criminal conviction. This double jeopardy challenge is foreclosed by United States v. Ursery, 116 S.Ct. 2135, 2149 (1996) (civil forfeitures pursuant to 21 U.S.C. § 881 are neither punishment nor criminal for purposes of Double Jeopardy Clause). Accordingly, we affirm the denial of Fitzen's § 2255 motion.

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

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