United States v. Simpson ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 93-6781
    ERNEST EDWARD SIMPSON,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    Frederic N. Smalkin, District Judge.
    (CR-81-397-S, CR-81-508-S, CA-93-1959)
    Submitted: April 9, 1996
    Decided: June 7, 1996
    Before WIDENER and WILKINS, Circuit Judges, and BUTZNER,
    Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Gail Starling Marshall, Rapidan, Virginia, for Appellant. Lynne A.
    Battaglia, United States Attorney, Kathleen O. Gavin, Assistant
    United States Attorney, Baltimore, Maryland, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Ernest Edward Simpson pled guilty to (i) conspiring to transport in
    interstate commerce falsely made, forged, altered, or counterfeited
    securities in violation of 
    18 U.S.C. § 371
     (1988); (ii) transporting
    such securities in violation of 
    18 U.S.C.A. § 2314
     (West Supp. 1996);
    and (iii) aiding and abetting in violation of 
    18 U.S.C. § 2
     (1988). He
    did not appeal. Twelve years later, Simpson filed a motion to vacate,
    set aside, or correct sentence under 
    28 U.S.C. § 2255
     (1988), claiming
    that his conviction for transporting securities was invalid because he
    merely forged payees' endorsements on checks--which did not con-
    stitute a "falsely made, forged, altered, counterfeited or spurious
    security" within the meaning of § 2314--and because his counsel was
    ineffective for failing to recognize that he was improperly convicted.
    The district court summarily denied relief on Simpson's § 2255
    motion, relying on United States v. Fontana, 
    948 F.2d 796
     (1st Cir.
    1991). Although the district court's reliance on Fontana is misplaced,
    we affirm the summary dismissal on other grounds.
    Simpson's primary contention on appeal is that the district court's
    summary dismissal was improper because it did not plainly appear
    from the record that he was not entitled to relief. The record before
    the district court suggests that Simpson may only have forged payees'
    endorsements. But the Government has filed on appeal the transcript
    of Simpson's plea hearing conducted pursuant to Fed. R. Crim. P. 11.
    Although the transcript was prepared two years after the district court
    entered its judgment, we may take judicial notice of it. See
    Rothenberg v. Security Management Co., 
    667 F.2d 958
    , 961 n.8 (11th
    Cir. 1982); Pratt v. Kelly, 
    585 F.2d 692
     (4th Cir. 1978). Our review
    of the Rule 11 colloquy discloses that Simpson admitted that the
    checks were forged in their entirety. We therefore find that Simpson's
    conviction was proper. See United States v. Tyson, 
    690 F.2d 9
    , 14 (1st
    Cir. 1982); United States v. Sciortino, 
    601 F.2d 680
    , 682-83 (2d Cir.
    1979). Based on this finding, we also find no merit in Simpson's inef-
    fective assistance of counsel claim. See Strickland v. Washington, 
    466 U.S. 668
     (1984).
    Accordingly, we affirm the district court's order summarily deny-
    ing and dismissing Simpson's § 2255 motion. We dispense with oral
    2
    argument because the facts and legal contentions are adequately pres-
    ented in the materials before the court and argument would not aid the
    decisional process.
    AFFIRMED
    3