United States v. DeVaughn , 32 F. App'x 60 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4458
MICHAEL O. DEVAUGHN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Margaret B. Seymour, District Judge.
(CR-01-233)
Submitted: February 28, 2002
Decided: April 22, 2002
Before WILKINS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
W. Douglas Richardson, Jr., HENDRICKS LAW FIRM, P.A., Eas-
ley, South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Caro-
lina, for Appellee.
2 UNITED STATES v. DEVAUGHN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael O. DeVaughn challenges the denial of several pretrial
motions on interlocutory appeal from his indictment on two counts of
being an inmate in possession of contraband (marijuana) in a federal
prison, in violation of 18 U.S.C.A. § 1791(a)(2) (West 2000).
DeVaughn’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Counsel states there are no meritori-
ous issues for appeal, but raises the issue of whether the district court
erred in denying DeVaughn’s motion to dismiss the indictment based
on the Fifth Amendment’s prohibition against double jeopardy. We
affirm the district court’s denial of DeVaughn’s motion to dismiss the
indictment on double jeopardy grounds and dismiss the appeal from
the denial of his other pretrial motions as interlocutory.
Initially, we find that we may review the district court’s denial of
DeVaughn’s motion to dismiss on double jeopardy grounds despite its
interlocutory nature. Abney v. United States, 431 U.S. 651, 662
(1977). Whether the district court erred in failing to dismiss
DeVaughn’s indictment for violation of the Double Jeopardy Clause
is a question of law to be reviewed de novo. United States v. Brown,
202 F.3d 691, 703 (4th Cir. 2000). On appeal, DeVaughn contends
that jeopardy attached when the prison punished him for possession
of marijuana through use of its administrative regulations, by effect-
ing a disciplinary transfer, restricting his privileges, invoking disci-
plinary segregation, and imposing administrative detention. As
acknowledged by counsel, this Court rejected this argument in Patter-
son v. United States, 183 F.3d 327 (4th Cir. 1950). Counsel argues,
however, that Patterson may have been abrogated by the Supreme
Court’s decision in United States v. Halper, 490 U.S. 435 (1989).
Numerous circuit courts considering the issue subsequent to Halper,
however, have continued to hold that prison disciplinary sanctions do
not preclude subsequent criminal prosecution for the same conduct
UNITED STATES v. DEVAUGHN 3
under the Double Jeopardy Clause of the Fifth Amendment because
Congress intended disciplinary proceedings to be civil in nature. See
United States v. Mayes, 158 F.3d 1215, 1222 (11th Cir. 1998); United
States v. Galan, 82 F.3d 639, 640 (5th Cir. 1996); United States v.
Brown, 59 F.3d 102, 103-05 (9th Cir. 1995); United States v.
Hernandez-Fundora, 58 F.3d 802, 806-07 (2d. Cir. 1995); Garrity v.
Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994); United States v.
Newby, 11 F.3d 1143, 1144-46 (3rd Cir. 1993). We agree, and con-
clude that Halper does not require this Court to revisit the continuing
vitality of Patterson.
As noted, DeVaughn also seeks review of several motions relating
to his prior conviction. Regarding these challenges, we dismiss the
appeal for lack of jurisdiction. 28 U.S.C.A. § 1292 (West Supp.
2001); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949). We also deny DeVaughn’s motions to correct
the record on appeal and for judicial notice, and find it premature at
this stage to consider whether he is receiving ineffective assistance of
counsel.
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm the
district court’s denial of DeVaughn’s motion to dismiss the indict-
ment on double jeopardy grounds. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART