*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/25/96

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 95-1369

v. (D.C. No. 95-C-500)

THEODORE LEWIS GALLEGOS, (D. Colo.)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.

The parties have agreed that this case may be submitted for decision on the briefs. 

See Fed. R. App. P. 34(f), 10th Cir. R. 34.1.2. After examining the briefs and the

appellate record, this panel has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R.

34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Theodore Gallegos appeals from the district court’s dismissal of his 28
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U.S.C. § 2255 motion. Mr. Gallegos originally pled guilty to making a false statement

while obtaining a firearm in violation of 18 U.S.C. § 922(a)(6). The charges against Mr.

Gallegos related to his acquisition of a Raven, model MP-25, .25 caliber semi-automatic

pistol and an RG Industries, model 14, .22 caliber revolver. He now argues that his

sentence for the § 922 offense violated the Double Jeopardy Clause because his Raven

firearm was civilly forfeited to the government prior to sentencing. Mr. Gallegos did not

raise this issue on direct appeal and did not raise the issue in a prior § 2255 motion. The

district court, adopting the government’s brief, dismissed Mr. Gallegos’s motion for

failure to present the issue on direct appeal, for abuse of the habeas corpus writ, and

because no double jeopardy violation had occurred. We affirm for the reasons that

follow.

Assuming for purposes of this case that Mr. Gallegos’s claim is not procedurally

barred, we proceed to the merits and hold that no double jeopardy violation occurred

because Mr. Gallegos’s guns were never forfeited to the government. In support of his

contention that a forfeiture occurred, Mr. Gallegos quotes the following colloquy from the

change of plea hearing:

THE COURT: Any forfeiture?

MR. MOORE [DEFENSE COUNSEL]: No.

THE COURT: Is the gun forfeited?
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MR. MOORE: I don’t know if they have the gun. If they have the gun

 there is a potential forfeiture of the weapon.

MR. BUCK [PROSECUTOR]: We have one weapon. We don’t have the

 other weapon.

THE COURT: Do you understand you would have to forfeit this weapon

 that’s involved in this case to the government?

MR. GALLEGOS: Forfeit?

THE COURT: The government would take it away from you?

MR. GALLEGOS: Yes, sir, I understand that.

THE COURT: Do you feel you understand all the consequences of

 pleading guilty, Mr. Gallegos?

MR. GALLEGOS: Yes, I do

R., Vol. II, pp. 16-17. In response to this § 2255 motion, however, the government

submitted the affidavit of an ATF agent who participated in the investigation of Mr.

Gallegos. R., Vol. I., No. 5, Exhibit D (Affidavit of Philip R. Miller). According to the

affidavit, the Raven pistol was never in the possession of the government. Additionally,

the ATF recovered the RG Industries revolver from a pawn shop for purposes of the

investigation but subsequently returned it. Mr. Gallegos does not contest the substance of

the affidavit. Rather, he merely claims that he “may” have had a possessory interest in

the gun that was returned to the pawn shop. These facts do not establish forfeiture. 

Additionally, Mr. Gallegos’s claim that the above-quoted colloquy constituted a civil

forfeiture proceeding separate from his sentencing succeeds in being creative but fails as
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a substantive matter. Thus, no double jeopardy violation occurred.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay

Circuit Judge