United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3124

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Ronnie Furnish, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 15, 1998 Filed: April 20, 1998

___________ Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. After a jury foun d Ronnie Furnish guilty of conspiracy to distribute and possess with int ent to distribute methamphetamine and heroin, in violation of 21 U.S.C

. §§ 8 41(a)(1) and 846, the district court sentenced him to 390 months in prison, fiv e years super

vised release, and a $3,000 fine. Mr. Furnish appealed, and we upheld his conviction, but remanded for resentencin g because the evidence did not support a fourlevel increase of Mr. Furnish & s base offense level for hi s role in the offense. See UnitedThe Honorable Jean C. Hamilton, Chi ef Judge, United States District Court for 1 the Eastern District of Missouri. -2- States v. Bryson , 110 F.3d 575, 585-86 (8th Cir. 1997). The district court subsequently 1 resentenced Furnish to 372 months in prison, five years supervised release, and a $3,000 fine.
Onappeal, counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967 ), arguing the new sentence is vindictive in violation of North Carolina v

. Pearce , 395 U.S. 711 (1969). Reviewing for plain error, we conclude that n o presumption of vindictiveness arises, because we disagree with counsel & s con tention that Mr. Furnish & s sentence fo llowing his successful appeal is more severe than his original sentenc e. Cf. Alabama v. Smith , 490 U.S. 794, 798-99 (1989) (presumption o f vindictiveness arises whenever judge imposes more severe se ntence after appeal, unless reasons for doing so affirma tively appear); United States v. Vontsteen , 950 F.2d 1086, 1092-93 (5th Cir. ) (en banc) (holding second sentence that is harsher than first is # sine qua non & of Pearce vindictiveness claim, and contemporary objection is necessary t o preserve such claim), cert. denied , 505 U.S. 1223 (1992).
Ina pro se supplemental brief, Mr. Furnish argues the district court committe d error when it overruled his objection to the quantity of drugs attributed to him fo r sentencing purposes. We decline to address this issue because Mr. Fur nish did not raise itin his first appeal. See United States v. Kress , 58 F.3d 370, 373 (8th Cir. 1995 ) (where defendant could have raised issue in prio r appeal but did not, court later hearing same case need not consider matter). He also challenges the district court & s failure at the resentencing hearing to con sider a mitigating role adjustment, and to make findings in support of the fine imposed. However, Mr. Furnish failed to raise either of thes e issues du ring his original sentencing hearing. See United States v. Behler , 100 F.3 d 632, 635 (8th Cir. 1996) (on remand, sentencing court is bou nd to proceed within scope of any limitations imposed by appellate court); United States v. Williams , 994 F.2d-3-

1287, 1 294 (8th Cir. 1993) (preserving issue is matter of making timely objection and clear lystating grounds for objection so that trial court has opportunity to prevent o r correct error in first instance).
We h ave reviewed the resentencing proceedings in accordance with Penson v

. Ohio , 488 U.S. 75, 80 (1988), and we have found no non frivolous issues. Accordingly, we affirm. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.