* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 11 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. GEORGE GINES,

Defendant-Appellant, and MARY G. TARLIP,

Defendant. No. 98-4011 (D.C. No. 95-CV-761-G) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.1 Defendant Mary G. Tarlip is not a proper party to this appeal as she did not

sign the notice of appeal and claims she has never been married to George Gines. See Fed. R. App. P. 3(c)(2); 10th Cir. R. 3.1. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant-appellant George Gines appeals from an or der of the district court denying his motion filed under 28 U.S.C. § 2255. 1 Because his motion was filed before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, he need not obtain a certificate of appealability. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). Appellant entered a plea of guilty to the charge of manufacturing 100 grams or more of methamphetamine within 1000 feet of a pu blic school, in violation of 21 U.S.C. §§ 841(a)(1) and 845 and 18 U.S.C. § 2. He was sentenced to 253 months’ imprisonment to be followed by ten years’ s upervised release. We affirmed the judgment on direct appeal. See United States v. Gines , 964 F.2d 972, 976 (10th Cir. 1992). Appellant argues in thi s appeal that the district court erred: (1) in sentencing him under federal rather than state law because the crime was not committed in a place subject to federal jur isdiction; (2) in sentencing him2 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics ,

403 U.S. 388 (1971).
-3- under 21 U.S.C. § 841(a)(1) because the drugs he manufactured were adulterated and misbranded within the meaning of 21 U.S.C. §§ 3 31, 351, and 352 of the Federal Food, Drug and Cosmetics Act; and (3) in de nying his claims to sue the United States for money damages for its actions in prosecuting him. Appellant’s arguments are frivolous. First, his ju risdictional argument was considered and rejected in Tarlip v. United States , No. 93-4203, 1994 WL 71013, at **2 (10th Cir. Mar. 9, 1994) (order and judgment ). Further, the Food, Drug and Cosmetics Act of Title 21, United States Code, does not preclude appellant’s prosecution for manufacturing methamphetamine underthe Comprehensive Drug Abuse Prevention and Control Act of Title 21, United States Code. See United States v. Coyote , 963 F.2d 1328, 1330 (10th Cir. 1992). Finally, a lthough appellant’s claims for money damages would be cognizable in a Bivens action, 2 they necessarily fail because he has not demonstrat ed the invalidity of his federal sentence. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994); Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam).-4-

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge