966 F.2d 1456
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Eugene CHANEY, Sr., Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 91-2787.
United States Court of Appeals, Seventh Circuit.
Submitted June 16, 1992.*
Decided June 24, 1992.
Before CUMMINGS, POSNER and MANION, Circuit Judges.
ORDER
Eugene Chaney, Sr., pleaded guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 48 months in prison. He did not directly appeal his conviction. Two years later, Chaney filed this motion under 28 U.S.C. § 2255 to vacate or reduce his sentence on the grounds that the district judge (1) failed to notify him of the potential for an upward departure from the Sentencing Guidelines; (2) used improper factors in departing upwards from the Guidelines; and, (3) failed to sufficiently link the degree of departure to the structure of the Guidelines. The district judge summarily dismissed the motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, and Chaney appeals.
Chaney raises the same issues before this court and argues that the district judge erred in denying his postconviction motion. Because Chaney failed to raise the constitutional issues on direct appeal of his conviction, they are waived unless he can show cause for the procedural default and resulting prejudice. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982). Chaney makes no argument concerning cause and prejudice and none is apparent from the record. We are therefore barred from considering the issues here.
AFFIRMED.
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record