Filed: Mar. 31, 1999
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 31 1999 TENTH CIRCUIT _ PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-3267 (D. Kan.) LEWIS THEODORE WACKER, (D.Ct. No. 98-CV-3047-SAC) Defendant-Appellant. _ ORDER AND JUDGMENT * Before BRORBY, EBEL, and LUCERO, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 31 1999 TENTH CIRCUIT _ PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-3267 (D. Kan.) LEWIS THEODORE WACKER, (D.Ct. No. 98-CV-3047-SAC) Defendant-Appellant. _ ORDER AND JUDGMENT * Before BRORBY, EBEL, and LUCERO, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination ..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 31 1999
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3267
(D. Kan.)
LEWIS THEODORE WACKER, (D.Ct. No. 98-CV-3047-SAC)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Lewis Theodore Wacker, a prisoner appearing pro se, appeals the
*
This order and judgment is not binding precedent except under the doctrines of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.
district court’s dismissal of his motion brought under 28 U.S.C. § 2255 and
requests a certificate of appealability. We deny the request for a certificate of
appealability and dismiss the appeal.
Mr. Wacker received a sentence of 123 months incarceration on conviction
for one count of conspiracy to possess with intent to distribute approximately
2,000 pounds of marijuana, three counts of possession with intent to distribute
marijuana, and one count of using a firearm during and in relation to a drug-
trafficking crime. On appeal, we reversed the firearm conviction and remanded
for a new trial in light of Bailey v. United States, 516 U.S. 137 (1995). See
United States v. Wacker,
72 F.3d 1453, 1480 (10th Cir. 1995). On remand, the
government moved to dismiss the firearm count, and consequently, the court
found a new trial unnecessary. The district court resentenced Mr. Wacker to
seventy-eight months incarceration, applying an enhancement under United States
Sentencing Guidelines § 2D1.1(b)(1) for possession of a firearm during a drug
trafficking offense. We affirmed the sentence on appeal. See United States v.
Van Pelt,
1997 WL 738600 (10th Cir. Dec. 1, 1997) (unpublished).
Mr. Wacker brought this § 2255 motion challenging the federal
government’s ability to criminalize drug trafficking and, inter alia, challenging
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the constitutional validity of the Comprehensive Crime Control Act of 1984. A
lengthy supplementary thirty-two-page memorandum in support also contained:
(1) rambling and verbose allegations that the United States Code is not authorized
by, nor is it a law of, Congress; (2) an unintelligible jurisdictional argument based
on his contention his privately-owned business is not situated in a territory of the
United States of America, but the “jurisdiction of the State Republics”; and (3) a
warning to the court on the consequences of “usurpation, treason, and tyranny” in
not following his version of jurisdictional law.
The district court issued a thorough and detailed memorandum decision
rejecting Mr. Wacker’s argument the federal government lacks authority to
criminalize drug trafficking and upholding the constitutionality of Comprehensive
Crime Control Act and Sentencing Reform Acts of 1984. As to Mr. Wacker’s
other arguments, the district court rejected them stating:
The balance of the defendant’s motion is a mishmash of legal
citations and highly selective quotations from a number of sources
spun into a stream of conscious amalgam in the vain attempt of
finding some measure of relief from his sentence. As none of the
arguments advanced by the defendant have any merit, the court will
not waste its limited resources attempting to systematically address
each point raised.
Mr. Wacker filed a motion to reconsider raising the same and new
arguments. The district court denied the old arguments for the reasons previously
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stated, and rejected the new arguments finding Mr. Wacker “identified no reason
that they could not have been presented in his first volley of voluminous
pleadings.”
Having lost on the issues raised before the district court, Mr. Wacker
proceeds on appeal with a variety of new and fanciful, but relatively unintelligible
and ludicrous arguments. They consist of questions with incomprehensible
discussion on whether: (1) the “United States” and “United States of America”
are synonymous terms; (2) “provisions relating to gold and silver coin[s]” have
been amended or repealed; (3) Congress is authorized to establish a national bank;
and (4) an Internal Revenue Service district office exists in nearly every state.
Among other things, he makes conclusory allegations that: (1) the district court
did not have personal jurisdiction over him, which is also somehow connected
with the notion his “real and proper name is spelled in proper English”; (2) the
district court lacked “authority to apply any Law”; and (3) prosecutors made
threats to potential defense witnesses causing fear and suppressing their
testimony.
As a pro se litigant, Mr. Wacker’s pleadings must be construed liberally
and held to a less stringent standard than formal pleadings drafted by lawyers.
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See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citing
Haines v. Kerner,
404 U.S. 519, 520-21 (1972)). Despite the liberal construction
afforded pro se pleadings, we generally will not consider issues raised for the first
time on appeal, Walker v. Mather (In re Walker),
959 F.2d 894, 896 (10th Cir.
1992), or conclusory and unsupported allegations, Wise v. Bravo,
666 F.2d 1328,
1332 (10th Cir. 1981). We also will not construct arguments or theories for Mr.
Wacker absent any coherent discussion of those issues. Drake, 927 at 1159.
Even construing Mr. Wacker’s allegations on appeal liberally, we find they
totally lack merit. They either contain conclusory allegations or incomprehensible
arguments, do not show a denial of any constitutional right, or are so unrelated to
the charge on which he was convicted as to verge on being either purposefully
comedic or malicious with the intent to harass or waste the limited resources of
the court. For these and other reasons not warranting further discussion, we deny
Mr. Wacker’s request for a certificate of appealability and dismiss his appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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