## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 21

- 2791

___________________________ Derrick Anthony Stewart

Petitioner - Appellant

v.

United States of America

Respondent - Appellee

____________ Appeal from United States District Court for the Southern District of Iowa - Central

____________
Submitted: April 13, 2022 Filed: August 5, 2022 [Unpublished]

____________ Before SHEPHERD, ERIC KSON, and STRAS, Circuit Judges.

____________

PER CURIAM

.

Derrick Stewart appeals following the district court’s 1 denial of his motion to

vacate or set aside his sentence under 28 U.S.C § 2255. Because Stewart cannot show counsel performed deficientl y at the time of his sentencing , we affirm.

1 The Honorable Stephanie M. Rose, Chief Judge , United States District Court for the Southern District of Iowa.-2- On November 1 3, 2017, Stewart ple d guilty to conspiracy to distribute a substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 and 851; and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Stewar t had a prior Illinois felony drug conviction , which the government gave notice of under 21 U.S.C. § 851. In March 2018, the court sentenced Stewart to a mandatory minimum sentence of 240 months’ imprisonment on the drug count and 60 months on the firearms count, to run consecutively. Without the § 851 enhancement, Stewart’s guidelines range
would have been 168 to 210 months, plus 60 months o n the § 924(c) count to run consecutively

. Stewart unsuccessfully appealed the denial of his suppression
motion. United States v. Stewart , 761 F. App’x 659 (8th Cir. 2019) (unpublished)

.

On December 5, 2019, Stewart filed a motion to set aside or vacate his

s entence under § 2255 claiming for the first time that the § 851 enhancement was improper, because under the categorical approach the Illinois statute of conviction was broader than the federal definition of a felony drug offense. Stewart also
claimed inef fective assistance of counsel. T he district court denied the motion but granted a certificate of appealability.

We review de novo the district court’s denial of a § 2255 motion to vacate or
set aside a sentence. Jackson v. United States , 956 F.3d 1001, 1006 (8th Cir. 2020). “[A] petitioner may not raise an issue before the district court for the first time in a § 2255 motion if th e issue was not presented on direct appeal from the conviction. ” Jennings v. United States , 696 F.3d 759, 762

- 63 (8th Cir. 2012). T o prevail on a claim that has been procedurally defaulted, a defendant must demonstrate either : (1) cause that excuses the default and actual prejudice , or (2) that he is actually innocent

. Bousley v. United States

, 523 U.S. 614, 622 ( 1998 ). As the district court concluded, actual prejudice can be shown here because Stewart likely would have received a
much lower sentence wi thout the § 851 enhancement and resulting mandatory
minimum. T o obtain relief , Stewart must prevail on his ineffective assistance of
counsel claim that would operate to excuse the default.-3- In 2008, we held that a conviction under Illinois 570/402(c) , the same statute under which Stewart was convicted, was a predicate conviction to support a sentencing enhancement under § 851. United States v. Hawkins , 548 F.3d 1143, 1150 (8 th Cir. 2008) ; see also 720 Ill. Comp. Stat. 570/402(c) (2000)

. Although the decision did not mention the categorical approach, it did look broadly at the definition of “felony drug offense” in § 802(44) to determine that the Illinois statute
“fits within th [ at ] definition.” Id. When Stewart was sentenced on March 19, 2018

, Hawkins was the governing law in our circuit

.

More than one year after Stewart’s sentencing, we held that the categorical approach should be used to determine whether a statute qualifies as a predicate conviction under certain federal sentencing enhancement schemes, including the
C ontrolled S ubstances A ct (“CSA”)

. United States v. Boleyn , 929 F.3d 932, 936 (8th Cir. 2019). We evaluate counsel’s performance from counsel’s perspective at the time and ignore the “distorting effects of hindsight.” Love v. United States , 949
F.3d 406, 410 (quoting Davis v. United States, 858 F.3d 529, 534 (8th Cir. 2017) ) ;

see Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002) (“[C]ounsel’s decision not to raise an issue unsupported by then

- existing precedent did not constitute ineffective assistance.”)

. Because under the law of our circuit a t the time of Stewart’s sentencing his prior conviction under § 570/402(c) was a predicate conviction under § 851

, Stewart’s counsel did not perfor m deficiently.

The judgment of the district court is affirmed.

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