United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3124

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Ronnie Furnish, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: April 15, 1998

 Filed: April 20, 1998

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

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PER CURIAM.

After a jury found Ronnie Furnish guilty of conspiracy to distribute and possess

with intent to distribute methamphetamine and heroin, in violation of 21 U.S.C.

§§ 841(a)(1) and 846, the district court sentenced him to 390 months in prison, five

years supervised release, and a $3,000 fine. Mr. Furnish appealed, and we upheld his

conviction, but remanded for resentencing because the evidence did not support a fourlevel increase of Mr. Furnish&s base offense level for his role in the offense. See United
The Honorable Jean C. Hamilton, Chief 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. 

On appeal, 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 no

presumption of vindictiveness arises, because we disagree with counsel&s contention that

Mr. Furnish&s sentence following his successful appeal is more severe than his original

sentence. Cf. Alabama v. Smith, 490 U.S. 794, 798-99 (1989) (presumption of

vindictiveness arises whenever judge imposes more severe sentence after appeal, unless

reasons for doing so affirmatively 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 to

preserve such claim), cert. denied, 505 U.S. 1223 (1992). 

In a pro se supplemental brief, Mr. Furnish argues the district court committed

error when it overruled his objection to the quantity of drugs attributed to him for

sentencing purposes. We decline to address this issue because Mr. Furnish did not raise

it in his first appeal. See United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995)

(where defendant could have raised issue in prior 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 consider a mitigating role adjustment, and to make findings

in support of the fine imposed. However, Mr. Furnish failed to raise either of these

issues during his original sentencing hearing. See United States v. Behler, 100 F.3d

632, 635 (8th Cir. 1996) (on remand, sentencing court is bound to proceed within scope

of any limitations imposed by appellate court); United States v. Williams, 994 F.2d
-3-

1287, 1294 (8th Cir. 1993) (preserving issue is matter of making timely objection and

clearly stating grounds for objection so that trial court has opportunity to prevent or

correct error in first instance).

We have reviewed the resentencing proceedings in accordance with Penson v.

Ohio, 488 U.S. 75, 80 (1988), and we have found no nonfrivolous issues. Accordingly,

we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.