John D. Johnson v. State of IA

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2506
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Rory Allen Gregory, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
United States of America, * Western District of Arkansas.
*
Appellee. * [UNPUBLISHED]
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Submitted: August 25, 2000
Filed: August 31, 2000
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
An indictment charged Rory Allen Gregory and a co-defendant with aiding and
abetting each other in attempting to manufacture methamphetamine and methcathinone,
in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994) and 18 U.S.C. § 2 (1994). After
Gregory pleaded guilty to attempting to manufacture methcathinone, this court affirmed
his conviction and sentence, rejecting his challenge to the drug-quantity determination.
See United States v. Gregory, No. 96-3191, 1997 WL 7520 (8th Cir. Jan. 10, 1997)
(unpublished per curiam). Gregory then filed a motion under 28 U.S.C. § 2255 (Supp.

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1The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, adopting the report and recommendations of the
Honorable Beverly Stites Jones, United States Magistrate Judge for the Western
District of Arkansas.
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IV 1998), and the District Court,1 after an evidentiary hearing, denied his many grounds
for relief, but granted Gregory a certificate of appealability as to one issue: whether
Gregory’s conviction upon his guilty plea as a principal, when the indictment included
aiding and abetting language, was in violation of his constitutional rights. Having
carefully reviewed the record and the parties’ submissions on appeal, we affirm the
judgment of the District Court. See United States v. Johnson, 934 F.2d 936, 941 (8th
Cir. 1991) (discussing constructive amendment of indictment); United States v.
McKnight, 799 F.2d 443, 445 (8th Cir. 1986) (explaining that § 2 does not create
separate offense; it simply makes those who aid and abet in crime punishable as
principals); United States v. Pearson, 667 F.2d 12, 14 (5th Cir. Unit B 1982) (per
curiam) (concluding that because all indictments for substantive offenses must be read
as if alternative provided by § 2 were embodied in it, words “aided and abetted each
by the other” in indictment were wholly extraneous). We deny Gregory’s request, set
forth in his appellate brief, to issue a certificate of appealability as to his argument that
the district court lacked jurisdiction to sentence him.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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