                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 13 1998
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                          No. 97-3270
                                                       (D.C. No. 97-3144-DES)
 EARNESTINE L. BASEY,                                    (District of Kansas)

          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before PORFILIO, KELLY, and HENRY, 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); 10th Cir. R. 34.1.9. 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         This order and judgment is not binding precedent, except under the doctrines of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. This 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.
       This is an appeal from the denial of a petition filed under 28 U.S.C. § 2255.

Pending is a motion for leave to appeal without prepayment of fees, which is GRANTED,

United States v. Simmonds, 111 F.3d 737, 741 (10th Cir. 1997), and a petition for a

certificate of appealability which is DENIED as moot. The petition for relief was filed in

this case on April 18, 1996, which was prior to the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996; therefore, the appellant is not required to obtain a

certificate of appealability. United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th

Cir. 1997). Upon consideration of the issues, we affirm.

       In the United States District Court for the District of Kansas, appellant plead guilty

to count 2 of a two count indictment charging conspiracy to possess with intent to

distribute and possession with intent to distribute cocaine. Count 1, the conspiracy

charge, was dismissed upon entry of the plea. Appellant now maintains she was

subsequently charged with conspiracy in the Western District of Missouri and that charge

resulted in a violation of the proscription against double jeopardy. The theory is

unexplained and unexplainable. The two offenses are separate and not the same offense.

       Appellant next claims she was denied effective assistance of counsel because her

Kansas attorney did not challenge a four-level enhancement of her sentence under

U.S.S.G. § 3B1.1(a). The district court examined the record and found, contrary to

appellant’s assertion, counsel did indeed challenge the enhancement, but the challenge

was overruled by the court. Appellant has not disputed that finding.


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      It is patent that this appeal is wholly without merit. The judgment of the district

court is AFFIRMED. The mandate shall issue forthwith.



                                          ENTERED FOR THE COURT



                                          John C. Porfilio
                                          Circuit Judge




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