                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              NOV 27 2002
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                            No. 02-3295
 v.                                               D.C. Nos. 01-CV-3140-RDR and
                                                       98-CR-40034-02-RDR
 LENARD CHAUNCY DIXON, also                                 (D. Kansas)
 known as Na-Na,

          Defendant - Appellant.




                                  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.



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
       Lenard Dixon, a federal prisoner appearing pro se, seeks a certificate of

appealability to appeal the district court's denial of his 28 U.S.C. § 2255 motion. We

deny his request and dismiss the appeal.

       Dixon was convicted in 1998 of conspiracy to commit a carjacking, carjacking,

and use of a firearm during and in relation to a crime of violence. His convictions were

affirmed on appeal and the Supreme Court denied review. Dixon filed his § 2255 on

April 16, 2001, alleging (1) the district court lacked subject matter jurisdiction to impose

judgment because of recent Supreme Court decisions regarding interstate commerce; (2)

he received ineffective assistance of trial and appellate counsel; and (3) his sentence must

be vacated due to a change in the Sentencing Guidelines. On April 15, 2002, the district

court denied relief. Dixon filed an application for certificate of appealability in district

court on June 17, 2002 (the certificate of mailing indicates it was mailed on June 7,

2002), which was denied on June 21, 2002. He then filed a notice of appeal on August

12, 2002. Dixon's application for a certificate of appealability is “the functional

equivalent of a notice of appeal.” See Ray v. Cowley, 975 F.2d 1478, 1479 (10th Cir.

1992). Although it was not timely filed, it is considered timely because the certificate of

service indicates the application was timely mailed. See id.

       On appeal, Dixon argues (1) recent Supreme Court decisions relating to violations

of interstate commerce require that his convictions and sentences be vacated; (2) he was

denied effective assistance of counsel because he was not advised that he had a right to


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testify; and (3) key elements were omitted from the indictment and his counsel was

ineffective for failing to move for dismissal because of the omissions.

       Dixon's argument that the carjacking statute, 18 U.S.C. § 2119, exceeded

Congress' authority under the Commerce Clause and “can no longer pass constitutional

scrutiny” is without merit. In United States v. Morrison, 529 U.S. 598 (2000), the Court

held that portions of the Violence Against Women Act exceeded Congress' Commerce

Clause power, concluding Congress may not regulate “noneconomic, violent criminal

conduct based solely on that conduct's aggregate effect on interstate commerce.” Id. at

617. Section 2119 criminalized particular carjackings based not solely upon the

aggregate effect of carjackings but rather upon an individualized determination that the

automobile in question “has been transported, shipped, or received in interstate or foreign

commerce.” 18 U.S.C. § 2119. Section 2119 remains constitutional after Morrison. See

United States v. Taylor, 226 F.3d 593, 598-600 (7th Cir. 2000).

       The district court found that even if Dixon had testified, the result of his trial

would not have changed. Dixon argued that his testimony would prove he did not carry

or use a firearm “in accordance with the carjacking offenses.” The district court

determined that Dixon was convicted of using a firearm carried by his accomplice, and

that Dixon did not assert that he would testify that his accomplice was unarmed. Dixon

has failed to contradict the district court's conclusion that, even assuming he received

ineffective assistance of counsel, he was not prejudiced by his failure to testify.


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       Dixon has abandoned his final argument raised before the district court -- that his

sentence must be vacated due to a change in the Sentencing Guidelines. Instead, Dixon

alleges that the indictment's failure to invoke 18 U.S.C. § 2 resulted in his conviction on a

charge where essential elements were not alleged in the indictment. This argument was

not raised before the district court and we will not address it on appeal. See United States

v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).

       As Dixon has not made a “substantial showing of the denial of a constitutional

right (28 U.S.C. § 2253(c)(2)), 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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