                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 01-6350



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


GARY M. MILLIGAN,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.
(CR-96-437-JFM, CA-00-513-JFM)


Submitted:   June 21, 2001                  Decided:   June 29, 2001


Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Gary M. Milligan, Appellant Pro Se. Joseph Lee Evans, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Gary M. Milligan appeals the district court’s order denying

relief on his 28 U.S.C.A. § 2255 (West Supp. 2000) motion.               On ap-

peal, Milligan only contests the district court’s order insofar as

it concluded that the United States had jurisdiction to prosecute

Milligan for arson in violation of 18 U.S.C.A. § 844(i) (West

2000).       Specifically, Milligan contends that the indictment failed

to sufficiently allege a nexus between the arson and interstate

commerce.       We find that claim flatly contradicted by the indict-

ment.       To the extent that Milligan contends that the prosecution

failed to adequately prove the interstate commerce nexus, Milligan

pled       guilty,   and   thus   admitted   the   material   elements   of   the

offense.       McCarthy v. United States, 394 U.S. 459, 466 (1969).

Accordingly, we deny a certificate of appealability and dismiss the

appeal.*       We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                                     DISMISSED



       *
       Although we dismiss the appeal, we deny the Government’s
motion to dismiss, which is premised on the district court’s denial
of Milligan’s motion for certificate of appealability. Pursuant to
Fed. R. App. P. 22(b), we may consider a request for a certificate
of appealability even if the district court denied a certificate.
In the absence of an express motion in this court, a notice of
appeal serves as a motion for a certificate of appealability.
Thus, the district court’s denial of Milligan’s motion for a
certificate of appealability is not dispositive of the appeal.


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