United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1126

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Herman McGee, *

* [TO BE PUBLISHED]

Defendant - Appellant. *

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Submitted: September 14, 1999

Filed: January 5, 2000

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Before RICHARD S. ARNOLD, BRIGHT, and LOKEN, Circuit Judges.

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PER CURIAM.

In 1991, Herman McGee was convicted of conspiracy to distribute cocaine and

two counts of using firearms in connection with a drug-trafficking crime. He was

sentenced to 240 months in prison for the drug conspiracy offense and to consecutive

60- and 240-month terms for the firearm offenses. We affirmed his conviction and

sentence on direct appeal. See United States v. Edwards, 994 F.2d 417 (8th Cir. 1993).

McGee then moved for post-conviction relief under 28 U.S.C. § 2255. The district
1The HONORABLE CHARLES A. SHAW, United States District Judge for the

Eastern District of Missouri.

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court1 vacated the firearm convictions on the authority of Bailey v. United States, 516

U.S. 137 (1995), denied McGee’s other § 2255 claims, and resentenced him to 240

months in prison for the drug conspiracy offense. McGee appeals, raising two

resentencing issues. We affirm.

First, McGee argues that the district court erred in refusing to reconsider the

evidence supporting the drug quantity finding underlying his initial 240-month sentence

for the drug conspiracy offense. However, McGee raised this drug-quantity issue on

direct appeal, and we affirmed. See Edwards, 994 F.2d at 422-23. The issue may not

be re-litigated under § 2255. See English v. United States, 998 F.2d 609, 612-13 (8th

Cir.), cert. denied, 510 U.S. 1001 (1993). McGee argues his due process rights were

violated by the absence of an adequate drug quantity finding, a contention not raised

on direct appeal. As we said in United States v. Ward, 55 F.3d 412, 413 (8th Cir.

1995), “even if [McGee’s] present argument were the kind of fundamental error

cognizable on collateral attack, instead of a garden-variety question of fact of the sort

that will occur in almost every drug-offense sentencing, his procedural default would

prevent us from reaching the argument.” 

Second, McGee argues the district court erred in resentencing by refusing to

grant him a downward departure. At the resentencing hearing, McGee and his attorney

requested a departure on a number of grounds. To the extent the request was based

upon McGee’s post-sentencing rehabilitative conduct, it is barred as a matter of law by

our subsequent decision in United States v. Sims, 174 F.3d 911 (8th Cir. 1999). To the

extent the request was based upon factors that could have been considered at the time

of McGee’s initial sentencing, the district court was aware of its authority to depart and

declined to do so. Thus, even if the departure issue is not procedurally barred -- an
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issue we need not address -- the court’s decision not to depart is unreviewable. See,

e.g., United States v. Fairchild, 189 F.3d 769, 780-81 (8th Cir. 1999).

Following oral argument, McGee filed a pro se motion to add a supplemental

issue on appeal -- that he is entitled to a new trial on the drug conspiracy charge

because trial of that charge was prejudiced by its misjoinder with the vacated firearms

charges. That contention is untimely. It is also without merit.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.