United States of America, Plaintiff-appellee, v. Dwayne Keith Fitzen, Defendant-appellant, 134 F.3d 380 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 134 F.3d 380 (9th Cir. 1998)

Submitted January 12, 1998**Jan. 16, 1998

Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.


Dwayne Keith Fitzen, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate the sentence imposed after his guilty plea in 1985 to conspiracy to distribute, distribution of cocaine, and possession of a firearm by a felon. We reject the government's contention that Fitzen may not challenge his 1985 conviction, on which he is in custody for a probation violation, because he also is serving a concurrent term of imprisonment on a 1992 conviction for conspiracy and distribution of cocaine. See United States v. DeBright, 730 F.2d 1255, 1260 (9th Cir. 1984) (en banc) (rejecting concurrent sentence doctrine). Fitzen contends that multiple civil forfeiture proceedings pursuant to 21 U.S.C. § 881(a) (6) barred his criminal conviction. This double jeopardy challenge is foreclosed by United States v. Ursery, 116 S. Ct. 2135, 2149 (1996) (civil forfeitures pursuant to 21 U.S.C. § 881 are neither punishment nor criminal for purposes of Double Jeopardy Clause). Accordingly, we affirm the denial of Fitzen's § 2255 motion.



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3