United States v. Nation

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 24, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-30631
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY NATION,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:02-CR-30043-5
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Kerry Nation appeals the district court’s denial of a post-
conviction motion to dismiss a multi-count indictment charging
numerous defendants as being part of a crack cocaine distribution
ring run by the Nation family. The district court concluded that
the motion should be treated as a 28 U.S.C. § 2255 motion and that
it could not entertain the motion because all the movants had
pending appeals. Only Kerry Nation signed the notice of appeal,
and the notice does not name the individual appellants. Rather,

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No. 04-30631
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the notice says that defendants, “Lee Dell Nation, et al.” appeal
the denial of the district court’s order.
We need not reach any jurisdictional or procedural issues
raised by the Government, because we conclude that the appeal is
frivolous. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000); United States v. Weathersby, 958 F.2d 65, 66 (5th Cir.
1992). The contention on appeal that the indictment is defective
because it does not allege specific intent and does not specify the
mixture containing cocaine base is patently without merit. The
indictment plainly states that the defendants intentionally
conspired and agreed to distribute 50 grams or more of a mixture or
substance containing cocaine base. This is sufficient to allege
specific intent, see United States v. Purvis, 580 F.2d 853, 857-58
(5th Cir. 1978), and to put defendants on notice of the offense
with which they were charged. United States v. Gaytan, 74 F.3d
545, 551 (5th Cir. 1996). Accordingly, this appeal is dismissed as
frivolous. 5th CIR. R. 42.2.
DISMISSED AS FRIVOLOUS.

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