                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1126
                                    ___________

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.             *
                                    ___________

                               Submitted: September 14, 1999

                                   Filed: January 5, 2000
                                    ___________

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

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
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



      1
       The HONORABLE CHARLES A. SHAW, United States District Judge for the
Eastern District of Missouri.

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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.




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