UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY M. MILLIGAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.
(CR-96-437-JFM, CA-00-513-JFM)
Submitted: June 21, 2001 Decided: June 29, 2001
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gary M. Milligan, Appellant Pro Se. Joseph Lee Evans, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary M. Milligan appeals the district court’s order denying
relief on his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. On ap-
peal, Milligan only contests the district court’s order insofar as
it concluded that the United States had jurisdiction to prosecute
Milligan for arson in violation of 18 U.S.C.A. § 844(i) (West
2000). Specifically, Milligan contends that the indictment failed
to sufficiently allege a nexus between the arson and interstate
commerce. We find that claim flatly contradicted by the indict-
ment. To the extent that Milligan contends that the prosecution
failed to adequately prove the interstate commerce nexus, Milligan
pled guilty, and thus admitted the material elements of the
offense. McCarthy v. United States, 394 U.S. 459, 466 (1969).
Accordingly, we deny a certificate of appealability and dismiss the
appeal.* We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
*
Although we dismiss the appeal, we deny the Government’s
motion to dismiss, which is premised on the district court’s denial
of Milligan’s motion for certificate of appealability. Pursuant to
Fed. R. App. P. 22(b), we may consider a request for a certificate
of appealability even if the district court denied a certificate.
In the absence of an express motion in this court, a notice of
appeal serves as a motion for a certificate of appealability.
Thus, the district court’s denial of Milligan’s motion for a
certificate of appealability is not dispositive of the appeal.
2