United States v. Nancy Queen ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1177
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Nancy E. Queen, also known as * [PUBLISHED]
Nancy E. Hedrick, *
*
Appellant. *
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Submitted: January 9, 2006
Filed: January 13, 2006
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Nancy E. Queen pleaded guilty to conspiracy to distribute pseudoephedrine
knowing it would be used to make methamphetamine. The district court* sentenced
Queen to time served and three years of probation. Queen appealed, and we affirmed.
United States v. Queen, No. 03-2796 (8th Cir. Mar. 25, 2004). In September 2004,
Queen was ordered to report to a halfway house for substance abuse treatment. She
*
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
refused, and the Government moved to revoke her release. The district court found
Queen had violated the conditions of her release, revoked her probation, and on
November 10, 2004, sentenced her to eleven months in prison.
On appeal, Queen contends the district court lacked jurisdiction to sentence her
because she had a § 2255 motion pending at the time of her November 2004
sentencing. Specifically, in October 2004, Queen filed a 28 U.S.C. § 2255 motion
alleging her conviction was unlawful because of violations of the Interstate
Agreement on Detainers, and because her appointed counsel had rendered ineffective
assistance. The district court denied the motion and her motions for a certificate of
appealability. Queen appealed these rulings in a separate appeal filed in February
2005, three months after her revocation sentencing.
Although a federal district court and a federal court of appeals should not assert
jurisdiction over a case at the same time, a notice of appeal only divests the lower
court of jurisdiction over aspects of the case that are the subject of the appeal. Hunter
v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004). District courts retain jurisdiction
to enforce their orders when the same issues are not simultaneously before the district
court and appellate court. United States v. Phelps, 283 F.3d 1176, 1180-81 n.5 (9th
Cir. 2002); Doe 1-13 v. Bush, 261 F.3d 1037, 1064 (11th Cir. 2001).
Here, there was no appellate action pending at the time of the revocation and
sentencing. Although Queen had filed her § 2255 motion with the district court
before the November 2004 revocation hearing, the motion was not the subject of any
appellate litigation until January 2005 when Queen first sought a certificate of
appealability. Even if there was an active appellate cause at the time of the November
2004 sentencing, the cause did not involve issues related to Queen’s violations of the
conditions of her probation. Thus, the district court was not divested of jurisdiction
with respect to Queen’s probation violations.
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Accordingly, we affirm the district court, and dismiss as moot the
Government’s motion to dismiss.
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