*

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1177

___________

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. *

___________

Submitted: January 9, 2006

Filed: January 13, 2006

___________

Before MURPHY, FAGG, and SMITH, Circuit Judges.

___________

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
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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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