Jeff Davis Noel, Petitioner-appellant, v. United States of America, Respondent-appellee, 19 F.3d 1433 (6th Cir. 1994)

Jeff Davis Noel appeals a district court judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1989, a jury convicted Noel of possession with intent to distribute cocaine. Pursuant to the Sentencing Guidelines, the district court determined that Noel was a career offender and sentenced him to two-hundred and seventy-six months of imprisonment. This court affirmed Noel's conviction and sentence on direct appeal. United States v. Noel, 938 F.2d 685 (6th Cir. 1991).

In 1993, Noel filed the present motion to vacate, alleging that the district court had improperly sentenced him as a career offender because the district court relied on a prior conviction for conspiracy to distribute controlled substances in determining his career offender status. The district court determined that Noel was precluded from raising this issue because he appeared to have raised the issue on direct appeal and, to the extent that he had not previously raised the issue, he had waived his right to now do so. Therefore, the district court denied the motion to vacate. Noel has filed a timely appeal.

Upon review, we affirm the district court's judgment. Noel has not established both cause and prejudice to excuse his failure to raise this issue on direct appeal. See United States v. Frady, 456 U.S. 152, 167-69 (1982). The district court's sentence of Noel as a career offender is distinguishable from the sentence addressed in United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993), because Noel was previously convicted of conspiracy and the underlying offense.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.