* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-11211

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELI TREVINO MUNGIA

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:98-CV-170

--------------------

November 30, 2000

Before SMITH, BENAVIDES, and DENNIS Circuit Judges.

PER CURIAM:*

On March 7, 1995, Eli Trevino Mungia, now federal prisoner

# 26371-077, was indicted on one count of conspiracy to interfere

with federally protected activities, three counts of interference

with federally protected activities, three counts of possession

of a firearm during and in relation to a crime of violence, and

one count of possession of an unregistered firearm. The

indictment alleged that Mungia and his codefendants shared a

hatred of African-Americans and were attempting to force AfricanAmericans off of the streets of Lubbock, Texas, by driving

through the streets and shooting African-Americans with a short-
No. 99-11211

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barreled shotgun. Mungia was found guilty by jury verdict on all

counts. He was sentenced to a total of life plus 120 months’

imprisonment and five years’ supervised release. This court

affirmed his conviction. 

Mungia filed a “Motion to Reverse and Dismiss Conviction” in

district court which was construed as a motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255. He

argued generally that: (1) his conviction under 18 U.S.C. § 245

was invalid because the prosecution of his offense was not

certified properly; (2) the Government’s prosecution of him under

§ 245 violated the Tenth Amendment; and (3) his trial counsel was

ineffective for failing to raise the aforementioned issues during

his criminal proceedings. Mungia was appointed counsel to

represent him in this matter. He then filed, through counsel, a

supplemental § 2255 motion. After conducting an evidentiary

hearing, the district court denied Mungia’s motion. Mungia filed

a timely notice of appeal and requested a certificate of

appealability (COA). The district court denied his request for

COA. 

This court granted COA limited to the following issues:

(1) whether the certification requirements of § 245(a)(1) are

jurisdictional; and (2) whether the Government complied with the

certification requirements of § 245(a)(1) prior to prosecuting

Mungia under that statute. 
No. 99-11211

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DISCUSSION:

A defendant who has been convicted and has exhausted or has

waived his right to appeal is presumed to have been “‘fairly and

finally convicted.’” United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991)(en banc)(citation omitted). “[A] ‘collateral

challenge may not do service for an appeal.’” Id. at 231

(citation omitted). Generally, a defendant who raises a

constitutional or jurisdictional issue for the first time on

collateral review must show “both ‘cause’ for his procedural

default, and ‘actual prejudice’ resulting from the error.” Id.

at 232 (citation omitted); but see Thor v. United States, 554

F.2d 759, 762 (5th Cir. 1977)(“Jurisdictional defects are always

subject to attack under section 2255, as that statute expressly

states.”). This procedural bar is not applicable in the instant

case, however, because it was not invoked by the Government in

district court. See United States v. Drobny, 955 F.2d 990, 995

(5th Cir. 1992)(procedural bar must be invoked). In reviewing

the denial of a § 2255 motion, this court reviews the district

court’s factual findings for clear error and questions of law de

novo. See United States v. Gipson, 985 F.2d 212, 214 (5th Cir.

1993).

Mungia argues that § 245's certification requirement was not

met in the instant case. The district court found that: (1) the

Associate Attorney General certified in writing that the

prosecution of Mungia was in the public interest and necessary to

secure substantial justice; (2) this certification was faxed to

the U.S. Attorney in Lubbock, Texas, prior to Mungia’s
No. 99-11211

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indictment; and (3) this certification was not filed in the

district court prior to Mungia’s trial. The district court

concluded that the certification requirement, as set forth in

§ 245(a)(1), had been met in Mungia’s case. 

The relevant portion of § 245 provides that: 

No prosecution of any offense described in this section

shall be undertaken by the United States except upon

the certification in writing of the Attorney General,

the Deputy Attorney General, the Associate Attorney

General, or any Assistant Attorney General specially

designated by the Attorney General that in his judgment

a prosecution by the United States is in the public

interest and necessary to secure substantial justice,

which function of certification may not be delegated.

§ 245(a)(1). Mungia contends that the certification requirement

in § 245 is very similar to the certification requirement in 18

U.S.C. § 5032 and should therefore be construed in an analogous

manner. Section 5032 authorizes juvenile-delinquency

proceedings in district court only if:

the Attorney General, after investigation, certifies to

the appropriate district court of the United States

that (1) the juvenile court or other appropriate court

of a State does not have jurisdiction or refuses to

assume jurisdiction over said juvenile with respect to

such alleged act of juvenile delinquency, (2) the State

does not have available programs and services adequate

for the needs of juveniles, or (3) the offense charged

is a crime of violence that is a felony or an offense

described in [various specified federal laws] and that

there is a substantial Federal interest in the case or

the offense to warrant the exercise of Federal

jurisdiction.

If the Attorney General does not so certify, such

juvenile shall be surrendered to the appropriate legal

authorities of such State.

§ 5032 (emphasis added). Mungia argues that the written

certification requirement in § 245(a)(1) implicitly mandates a

supplementary notification requirement because written
No. 99-11211

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certification authorizing prosecution under § 245 would be

meaningless if the district court were not made aware of such

certification. He therefore concludes that proper certification

under § 245(a)(1) requires that the written certification be

filed in district court prior to arraignment. In support of this

argument, he notes that certification in a juvenile proceeding

under § 5032 must be filed prior to arraignment. See United

States v. Cuomo, 525 F.2d 1285, 1289-90 (5th Cir. 1976). 

Section 5032, however, explicitly requires the Attorney

General to certify “to the appropriate district court” that the

requisite factors are present. Because § 245(a)(1) does not

contain any analogous language, there is no statutory requirement

that the certification be filed with the district court. 

Because the plain language of the statute is clear, “‘the sole

function of the courts is to enforce it according to its terms.’” 

United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241

(1989)(citation omitted). The government complied with the plain

language of § 245(a)(1) by securing a certification before

commencing the case. Thus, the certification requirement was met

in the instant case. 

Mungia also argues that the certification requirement in

§ 245 must be met before this Court may properly exercise subject

matter jurisdiction. Because the government properly complied

with the statutory requirements under § 245, it is not necessary

for us to determine whether proper certification is indeed

necessary for subject matter jurisdiction. 
No. 99-11211

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Lastly, Mungia moves this Court for disclosure of his sealed

presentence report to his counsel in order to search for possible

issues relevant to the recent Supreme Court’s decision in

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). This motion is

denied because any possible Apprendi issue is not relevant to the

issues involved in the instant appeal.

Accordingly, the decision of the district court is AFFIRMED.