ALD-190                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1315
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                            CHRISTOPHER DEGRANGE,
                                                   Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                      (D.C. Crim. Action No. 2-10-cr-00315-001)
                     District Judge: Honorable Michael M. Baylson
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 16, 2019
               Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

                              (Opinion filed: June 26, 2019)
                                      __________

                                        OPINION*
                                       __________


PER CURIAM

       Christopher DeGrange appeals from the District Court’s denial of a motion that he



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
captioned as a “motion for judicial notice pursuant to Rule 201” of the Federal Rules of

Evidence. We will affirm.

       In 2010, DeGrange pleaded guilty to distribution of child pornography and the

District Court sentenced him to 188 months in prison. As part of his plea, DeGrange

waived the right to file a direct appeal except in limited circumstances and waived the

right to collaterally challenge his sentence, including under 28 U.S.C. § 2255. DeGrange

nevertheless appealed, but we granted the Government’s motion to enforce the appellate

waiver and summarily affirmed. (C.A. No. 10-4796, July 22, 2011.) DeGrange later

filed a § 2255 motion, but the District Court enforced DeGrange’s § 2255 waiver as well

and we denied DeGrange’s request for a certificate of appealability. (C.A. No. 13-2466,

July 24, 2013.)

       Over five years later, DeGrange filed the motion at issue here. As noted above, he

captioned it as one for “judicial notice” under Fed. R. Evid. 201. DeGrange asserted that

his prosecuting Assistant United States Attorney perpetrated a fraud on the court, and

thereby deprived the District Court of subject matter jurisdiction, because he was not

validly appointed under the Appointments Clause of the Constitution.

       DeGrange specified, however, that he did not want the District Court to construe

his motion as another § 2255 motion, a habeas petition under 28 U.S.C. § 2241, or a

motion under Fed. R. Civ. P. 60(b). He also did not directly challenge his sentence or

request release from prison. Instead, he requested that the District Court “ensure” that it

possessed and still possesses subject matter jurisdiction by compelling the United States



                                             2
Attorney’s Office to “be in compliance” with the Appointments Clause. The District

Court denied the motion, and DeGrange appeals.1

       We will affirm because DeGrange’s motion, however construed, asserted no

conceivable basis for relief. We decline to construe his motion as a challenge to his

conviction and sentence for the reasons summarized above (and we note that, even if we

were to construe it as such a challenge, it would face likely dispositive procedural

barriers of which DeGrange appears well aware). We also need not decide whether there

is any other procedural mechanism for DeGrange to raise this claim because his

assertions are wholly conclusory.

       DeGrange does not explain why he believes that his prosecuting AUSA was not

validly appointed or provide any basis to question that appointment. DeGrange cites

several court decisions, but they either are inapposite or actually undermine his claim.2

Thus, DeGrange has shown no basis to conclude that he potentially is entitled to any

relief. For this reason, we need not decide whether Appointments Clause issues



1
  The Clerk listed this appeal for possible summary action and provided DeGrange with
an opportunity to file a response. DeGrange requested and obtained an extension to file a
response by March 22, 2019, but he has not filed one.
2
  DeGrange relies, for example, on Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), in which
the Court held that SEC Administrative Law Judges are subject to the Appointments
Clause. That decision does not address United States Attorneys or provide any reason to
believe that DeGrange’s prosecuting AUSA was not validly appointed. DeGrange also
relies on allegations raised by a pro se litigant in the Northern District of Texas, who also
filed a “petition for judicial notice.” United States v. Hunter, 744 F. App’x 876, 876 (5th
Cir. 2018) (per curiam). Those allegations culminated in the dismissal of that litigant’s
claims as frivolous, which the Fifth Circuit affirmed. See id. at 877. We do not rely on
that non-precedential opinion except to note that it does not support DeGrange’s cause.
                                              3
regarding United States Attorneys are jurisdictional as DeGrange asserts or whether, as

some courts have held, they are non-jurisdictional defects that are waived if not raised by

pretrial motion. See, e.g., United States v. Suescun, 237 F.3d 1284, 1287-88 (11th Cir.

2001); United States v. Colon-Munoz, 192 F.3d 210, 217 (1st Cir. 1999).

       Finally, in his notice of appeal, DeGrange argues that the District Judge displayed

partiality by not addressing DeGrange’s constitutional issues. There was no reason for

the District Court to do so for the reasons explained above, and DeGrange has not

otherwise shown any basis for relief in this regard.

       For these reasons, we will affirm the judgment of the District Court.




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