Philip J. Simon v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3345
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Philip J. Simon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: February 14, 2002
Filed: February 20, 2002
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Philip J. Simon appeals the district court’s1 denial of his 28 U.S.C. § 2255
motion. We affirm.
In 1999, Simon pleaded guilty to possessing with intent to manufacture,
distribute, and dispense marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. At sentencing, he received a career-offender enhancement under U.S.S.G. §
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
4B1.1 and was sentenced to 188 months’ imprisonment and 8 years’ supervised
release. Simon appealed his sentence, arguing that one of the felonies underlying his
career-offender status, a Nebraska conviction for attempting to possess marijuana
with intent to deliver, was not a controlled substance offense under the career-
offender Guideline. We rejected his argument and affirmed his sentence. See United
States v. Simon, No. 99-3033 (8th Cir. March 23, 2000).
Simon then filed the instant section 2255 motion, arguing that the other felony
underlying his career-offender status, a California conviction for “transport/sale” of
marijuana, did not qualify as a controlled substance offense and that his counsel was
ineffective for failing to raise the argument on direct appeal.
As the district court noted, Simon may not challenge in this section 2255
proceeding the use of his California conviction to establish career-offender status at
sentencing, unless he can show “cause” excusing his failure to raise the issue on
direct appeal, and “actual prejudice.” See Matthews v. United States, 114 F.3d 112,
113 (8th Cir. 1997), cert. denied, 522 U.S. 1064 (1998). We agree with the district
court that Simon has failed to show that he received ineffective assistance
constituting “cause” to excuse the procedural default, see Auman v. United States, 67
F.3d 157, 162 (8th Cir. 1995), because the sentencing court had ample evidence to
support its conclusion that the California conviction constituted a controlled
substance offense under the career-offender Guideline, see United States v. Newton,
259 F.3d 964, 968 (8th Cir. 2001).
The judgment is affirmed. See 8th Cir. R. 47B.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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