United States v. Gines

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 11, 1999
• Docket: 98-4011
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 11 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4011 (D.C. No. 95-CV-761-G) GEORGE GINES, (D. Utah)

Defendant-Appellant,

and

MARY G. TARLIP,

Defendant.

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant-appellant George Gines appeals from an order of the district

court denying his motion filed under 28 U.S.C. § 2255. 1 Because his motion was

filed before the enactment of the Antiterrorism and Effective Death Penalty Act

of 1996, he need not obtain a certificate of appealability. See United States v.

Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375

(1998).

Appellant entered a plea of guilty to the charge of manufacturing 100 grams

or more of methamphetamine within 1000 feet of a public school, in violation of

21 U.S.C. §§ 841(a)(1) and 845 and 18 U.S.C. § 2. He was sentenced to 253

months’ imprisonment to be followed by ten years’ supervised release. We

affirmed the judgment on direct appeal. See United States v. Gines , 964 F.2d

972, 976 (10th Cir. 1992). Appellant argues in this appeal that the district court

erred: (1) in sentencing him under federal rather than state law because the crime

was not committed in a place subject to federal jurisdiction; (2) in sentencing him

1 Defendant Mary G. Tarlip is not a proper party to this appeal as she did not sign the notice of appeal and claims she has never been married to George Gines. See Fed. R. App. P. 3(c)(2); 10th Cir. R. 3.1.

-2- under 21 U.S.C. § 841(a)(1) because the drugs he manufactured were adulterated

and misbranded within the meaning of 21 U.S.C. §§ 331, 351, and 352 of the

Federal Food, Drug and Cosmetics Act; and (3) in denying his claims to sue the

United States for money damages for its actions in prosecuting him.

Appellant’s arguments are frivolous. First, his jurisdictional argument was

considered and rejected in Tarlip v. United States , No. 93-4203, 1994 WL 71013,

at **2 (10th Cir. Mar. 9, 1994) (order and judgment). Further, the Food, Drug

and Cosmetics Act of Title 21, United States Code, does not preclude appellant’s

prosecution for manufacturing methamphetamine under the Comprehensive Drug

Abuse Prevention and Control Act of Title 21, United States Code. See United

States v. Coyote , 963 F.2d 1328, 1330 (10th Cir. 1992). Finally, although

appellant’s claims for money damages would be cognizable in a Bivens action, 2

they necessarily fail because he has not demonstrated the invalidity of his federal

sentence. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994); Crow v. Penry ,

102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam).

2 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971).

-3- AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge

-4-