                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  JUN 25 2002
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                            No. 02-3006
 ANTHONY HODGES,                                      (D.C. No. 01-CV-3089-KHV,
                                                          98-CR-20044-KHV)
           Defendant - Appellant.                             (D. Kansas)




                                   ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


       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.

       Anthony Hodges seeks a certificate of appealability (COA) to appeal the district

court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
We deny a certificate of appealability and dismiss the appeal.

       Hodges was convicted of possession with intent to distribute crack cocaine, 21

U.S.C. § 841(a)(1), and sentenced to a term of imprisonment of 151 months and a term of

supervised release of five years. His conviction was affirmed in United States v. Hodges,

208 F.3d 227 (10th Cir. 2000) (unpublished). Hodges filed his § 2255 motion on March

9, 2001, claiming the federal district court lacked subject matter jurisdiction. The district

court denied the motion on March 26, 2001.1

       On appeal, Hodges contends “[t]he District Court was without subject matter

jurisdiction to indict, try, convict, sentence, and imprison petitioner.” Br. attach. at 1. He

argues (1) that the prosecution failed to prove a nexus between his conduct and interstate

commerce, (2) that the crime was not committed on federal property, and (3) that the state

did not cede jurisdiction.

       Nexus between conduct and interstate commerce -- “[T]he conduct regulated by

the Drug Act clearly implicates interstate commerce, and Congress made explicit findings

explaining the conduct's 'substantial and direct effect upon interstate commerce.'” United

States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995). “Federal control of the intrastate

incidents of the traffic in controlled substances is essential to the effective control of the


       1
          On August 16, 2001, Hodges moved to supplement his § 2255 action. The
district court transferred the motion to this court as an unauthorized second or successive
application. In response to this court's notice, Hodges filed a motion for leave to file a
second or successive motion, claiming his sentence was unconstitutional under Apprendi
v. New Jersey, 530 U.S. 466 (2000). We denied the motion.

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interstate incidents of such traffic.” 21 U.S.C. § 801(6).

       Crime not committed on federal property – Article I, section 8, of the United

States Constitution “empower[s] Congress to create, define and punish crimes,

irrespective of where they are committed.” United States v. Collins, 920 F.2d 619, 629

(10th Cir. 1990).

       State did not cede jurisdiction – Because under 18 U.S.C. § 3231 federal district

courts are explicitly vested with jurisdiction over all offenses against the laws of the

United States, see id., the federal government is not required to show that the state ceded

jurisdiction. See United States v. Daily, 921 F.2d 994, 998 (10th Cir. 1990), disapproved

on other grounds, United States v. Wiles, 102 F.3d 1043, 1054-55 (10th Cir. 1996).

       The district court had jurisdiction over the charges brought against Hodges. As

Hodges has failed to make “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(1)(B), we DENY a certificate of appealability and DISMISS the

appeal. The mandate shall issue forthwith.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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