FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    February 5, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 07-1271
       v.                                               (D. Colorado)
 SAMMY LEE WOODS,                              (D.C. Nos. 06-cv-01898-WYD;
                                                         01-cr-00214-WYD)
              Defendant-Appellant.



                                     ORDER


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Sammy Lee Woods seeks a certificate of appealability (“COA”) to appeal

the district court’s order denying his 28 U.S.C. § 2255 motion to vacate, modify,

or set aside his sentence. For substantially the same reasons set forth by the

district court in its June 11, 2007 order, we deny Mr. Woods’ application and

dismiss this matter.

                                I. BACKGROUND

      Along with six other defendants, Mr. Woods was convicted after a jury trial

of conspiracy to distribute fifty grams or more of crack cocaine, possession with

intent to distribute crack cocaine, and use of a communications facility to further

a drug trafficking crime. The district court sentenced him to the mandatory
minimum term of 240 months’ imprisonment on the conspiracy count and lesser

concurrent terms on the two other counts. This court affirmed Mr. Woods’

convictions and sentences on direct appeal. See United States v. Small, 

(10th Cir. 2005).

      Mr. Woods timely filed a 28 U.S.C. § 2255 motion to modify, vacate, or set

aside his sentence. As the district court observed, Mr. Woods’ four § 2255 claims

are “confusing, difficult to understand, and not well-developed.” Rec. doc. 3464,

at 2 (Order Denying 28 U.S.C. § 2255 Motion, filed June 11, 2007).

      In his first claim, Mr. Woods asserted that, on direct appeal, his counsel

was constitutionally ineffective for failing to challenge his sentence pursuant to

United States v. Booker, 

(2005). In his second and third claims,

Mr. Woods alleged that his counsel was ineffective for failing to raise several

arguments that the court lacked subject matter jurisdiction over the charged

crimes. These jurisdictional arguments included contentions that: (a) the United

States is a “fictitious party plaintiff[;]” (b) Mr. Woods’ name in the indictment in

all capital letters is not his lawful name; (c) Mr. Woods is not a corporate

franchise and has not elected to be so treated; (d) the United States is a territorial

corporation without power to bring a criminal prosecution within the territorial

boundaries of the several states; (e) a United States District Court is not an

Article III court; (f) 18 U.S.C. § 3231 is unconstitutional on its face; and (g)




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section 3231 applies to “District Courts of the U.S.” but not to “U.S. District

Courts.” See Rec. doc. 3464, at 4-5 (summarizing Mr. Woods’ arguments).

       In his fourth claim, Mr. Woods alleged that the government could not

prosecute this action because crack cocaine is not a controlled substance and that,

as a result, federal drug laws pertaining to crack cocaine are unconstitutionally

vague.

       The district court denied Mr. Woods’ § 2255 motion.



                                  II. DISCUSSION

       In order to obtain a COA, Mr. Woods must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Woods may

make this showing by demonstrating that “reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 

, 336

(2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” 

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      Here, for largely the same reasons set forth by the district court in its June

11, 2007 order, we conclude that Mr. Woods has failed to make a substantial

showing of the denial of a constitutional right.

      As to his counsel’s failure to challenge his sentence under Booker, the jury

found that Mr. Woods conspired to distribute more than fifty grams of crack

cocaine. In light of his prior felony drug conviction, the applicable statute

required a minimum sentence of 240 months’ imprisonment, which is what Mr.

Woods received. See 21 U.S.C. § 841(b)(1)(A)(iii). Thus, the judge did not

engage in improper fact-finding beyond the scope of the jury’s verdict, and

Booker is inapplicable. See 

(concluding that, with regard

to two of Mr. Woods’ codefendants, there was no Booker error because “the only

facts necessary for [their] sentences were either submitted to the jury or involved

the fact of a prior conviction” and because “the court had no discretion to impose

a sentence lower than the minimum required by the statute”).

      As to Mr. Woods’ ineffective assistance claims based on the failure to

challenge the district court’s jurisdiction, the district court properly concluded

that it had subject matter jurisdiction over the United States’ criminal prosecution

of Mr. Woods under 18 U.S.C. § 3231 and that “there can be no doubt that Article

III permits Congress to assign federal criminal prosecutions to federal courts.”

Rec. doc. 3464, at 5.




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      Finally, Mr. Woods’ argument that crack cocaine is not a controlled

substance is incorrect: substances containing cocaine are listed as controlled

substances. See 21 U.S.C. § 812, Schedule II(a)(4). 1



                                 III. CONCLUSION

      Accordingly, we DENY Mr. Woods’ application for a COA and DISMISS

this matter. Appellant’s motion to proceed in forma pauperis on appeal is

granted.



                                 Entered for the Court,




                                 Elisabeth A. Shumaker
                                 Clerk of Court




      1
          In his application for a COA, Mr. Woods also contends that the disparity
between crack cocaine and powdered cocaine offenses is unconstitutional. COA
App. at 2. He did not raise this argument in the § 2255 motion he filed in the
district court. Mr. Woods’ argument is not sufficiently preserved and developed
for us to consider it here. See Shoels v. Klebold, 

, 1062 (10th Cir.
2004) (stating that “[t]he general rule in this circuit is that a party may not lose in
the district court on one theory of the case, and then prevail on appeal on a
different theory”).



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