Judge Henley died on October 18, 1997. This opinion is consistent with hi s 1 vote at the panel's conference following oral argument of the case on September 10 , 1997. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1591

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Western Edward Gutierrez, * District of Missouri. * Appellant. *

___________ Submitted: September 10, 1997 Filed: November 26, 1997

___________ Before B OWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRI S 1 SHEPPARD ARNOLD, Circuit Judge.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. A federal grand jury charged Edward Gutierrez with money lau ndering and with conspiracy to distribute cocaine and marijuana. After he failed to appear on the first day of trial, he was tried in absentiaand was found guilty on four o f the six counts with which he was charged. His counsel filed a motion for a new trial, claiming that theThe Honora ble Russell G. Clark, United States District Judge for the Western 2 District of Missouri. -2- district court erred in trying Mr. Gutierrez in absentia . The motion was denied an d 2 Mr. Gutierrez was sentenced (again in absentia ) to 288 months in prison.

Afterspe nding some time in Mexico, the United States, and Germany , Mr. G utierrez was arrested again. Shortly thereafter, another federal grand jury indict edhim for failing to appear at trial. On its own motion, the district court the n entered an order vacating and setting aside the original convictions and ordering a new trial because, after Mr. Gutierrez's sentencing, the Supreme Court decided Crosby v. Uni ted States , 506 U.S. 255, 262 (1993), holding that the plain language of Fed. R

. Crim. P . 43(a) "prohibits the trial in absentia of a defendant who is not present at the beginning of trial." In response, Mr. Gutierrez moved to dismiss the case solely on the ground that because the court's action in setting aside the convictions was neither at his request nor re quired to serve the ends of justice, a second trial would violate his Fifth Amendment right not to be put twice in jeopardy. He did not disp ute the district court's authority to enter the order sua sponte . The court denied the motion.
Before the second trial began, Mr. Gutierrez re newed his motion and the district court denied it again. After Mr. Gut ierrez was found guilty on the four original counts and the failure-to-appear count, he made yet another motion for a new trial on th e ground t hat the second trial had put him in double jeopardy. The court denied th e motion, noting that whether the order setting aside the first trial was required b y “manifes t necessity” or not, it was to the benefit of the defendant and thus not i n violation of the Fifth Amendment's double jeopardy clause. Mr. Gut ierrez never sought
an order vacat ing the order setting aside his first trial, and he did not challenge th e district court’s authority to do so. He was then sentenced to 324 months in prison.-3-

Mr. Gutierrez advances two arguments on appeal. The first is that the district
co urt had no authority to vacate his first conviction sua sponte and that by doing so , and ret rying him, the court placed him twice in jeopardy for the same criminal acts

. The second is that, even if the second trial did not amou nt to double jeopardy, he could not be subjected to a term of confinement long er than that to which the court originally sentenced him.

I. Mr. Gutierre z did not see fit to challenge the authority of the district court t o enter the order vacating his conviction a t the time that it was entered or, indeed, at any time before he appealed. Therefore, unless the district court's action is reviewable as plain error, Mr. Gutierrez's failure to object to it will be fatal to his attempt to raise the issu e. An argument not raised below cannot be raised on appeal for the first tim e unless " 'the obvious result would be a plain miscarriage of justice.' " Davis v. Wyrick , 766 F.2d 1197, 1204 (8 Cir. 1985), cert. denied , 475 U.S. 1020 (1986), quotin g th Kelley v. Crunk , 713 F.2d 426, 427 (8 Cir. 1983) ( per curiam ). th

We nee d not, however, scrutinize the court's action for plain error, becaus e Mr. Gutierrez , we believe, waived his right to object to it. The Supreme Court ha s distinguished between a right that is inadvertently left unasserted and one that i s intentionally relinquished

or abandoned, noting that the latter constitutes a waiver that extinguishes a claim altogether. See United States v. Olano , 507 U .S. 725, 733 (1993). It is clear that at the time that the district court vacated the judgment, Mr. Gutierre z
ma de a calculated decision not to challenge the court's authority to do so. Hi s calculationwas based on a strategic choice between the likely outcomes of a second trial, weighted by each outcome’s likelihood of occurring, and the certaintyof a 24-year sente nce. Having made this calculation, Mr. Gutierrez cannot now, faced with a less favorable outcome, expect to escape its consequences.-4-

Mr. Gutierrez cannot s uccessfully argue that his failure to object to the order at the time that

it was entered was a mere oversight. His counsel candidly stated at oral argument that "[w]e took the route that we didn't co mplain -- nor did the government -- about the court's own motion setting the first conviction aside.... We've n ever made any bones about that, we're stuck with it, we're asking for two bites of the apple." Th e district court ma

y or may not have had the authority to set aside the initial conviction, butit di d have the power to do so. The order, in other words, may or may not hav e been voidable, but it was certainly not void. Because the parties did not object, th e dis trict court’s power was effectively, even though perhaps improperly, exercised

. "T he distinction between forfeiture and waiver brings our plain error analysis to a grinding halt." United States v. Yu-Leung , 51 F.3d 1116, 1122 (2 Cir. 1995). d

Mr. Gut ierrez's double jeopardy argument therefore fails, because it wa s pre dicatedon the district court's lack of authority to vacate the first conviction su a sponte . Furthermore, there is no double jeopardy difficulty if the second trial was for the benefit of the defendant. See, e.g., United States v. Givens , 88 F.3d 608, 613 (8 th Cir. 1996 ). Because Mr. Gutierrez made the strategic decision not to object to th e vacating of th e first judgment, we must assume that he thought that going to trial a second time would be in his interest; certainly it is understandable that he would no t wis h to seek reinstatement of a 24-year sentence. At the completion of the initia l trial, moreover, long before the conviction was vacated, Mr. Gutierrez moved for a new tr ial on the ground that it was error to try him in absentia . Although this motion was denied at the time, we offer the observation tha t in the end he received exactly what he asked for. II. Mr. Gutie rrez also contends that the imposition of a longer sentence after hi s second trial violates the double jeopardy clause of the Fifth Amendment. But Supreme Court precedent makes it clear that there i s no absolute bar to imposing a more severe sentence on reconvic tion. See, e.g., North Carolina v. Pearce , 395 U.S. 711, 719-21 (1969). Although Mr. Gutierrez attempts in his brief to distinguish his case from-5-

Pearce , h is arguments are unpersuasive. He argues that, because he did not ask th e district court to set aside his conviction and sentence, his case does not comport with Pearce , which noted that the basis for allowing more severe sentencing on retrial was "that the original conviction has, at the defendant's behest, been wholly nullified an d the slate wiped clean." Id . at 721. But in fact, as we have noted, Mr. Gutierrez did ask for h is conviction to be set aside, because, shortly after the initial verdict wa s handed down, his a

ttorney moved for a new trial on the ground that it was error to try him in absenti a . While the motion was denied at the time, the eventual new trial was the belated fulfillment of that request.

III. We therefore affirm the district court's order setting aside th e first conviction and the court's subsequent second sentence.
A true copy.

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