United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 02-1928

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United States of America, *

*

Appellee, *

*

v. *

*

Lenora Logan, *

*

Appellant. *

___________ Appeals from the United States

 District Court for the 

 No. 02-1932 Southern District of Iowa.

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United States of America, *

* [PUBLISHED]

Appellee, *

*

v. *

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Keith Maynie, *

*

Appellant. *

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 Submitted: December 12, 2002 

 Filed: June 27, 2003

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1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

2

The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

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Before HANSEN,1 Chief Judge, HEANEY and BYE, Circuit Judges.

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PER CURIAM.

A jury found Lenora Logan, Keith Maynie, Jr., and codefendant Dietrick Banks

guilty of conspiring to distribute and possess with intent to distribute crack cocaine,

in violation of 21 U.S.C. § 846 (1994), and they were sentenced to life imprisonment

and ten years supervised release. We affirmed their convictions, but vacated their

sentences based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and remanded

“with directions to resentence each defendant to a 30-year term of imprisonment.”

See United States v. Maynie, 257 F.3d 908, 918-21 (8th Cir. 2001), cert. denied, 534

U.S. 1151, and cert. denied, 535 U.S. 944 (2002). On remand, the district court2

sentenced Logan and Maynie to thirty years imprisonment and ten years supervised

release. 

On appeal, Logan and Maynie both argue that the district court erred on

remand in finding that it lacked discretion to deviate from the sentence ordered by

this court. Maynie also argues that the sentencing judge impermissibly made the

finding of drug identity. Logan raises a number of additional arguments addressing

trial rulings and the consolidation of cases on appeal. Specifically, she argues that

the district court should have granted her a downward departure for postsentencing

rehabilitation; the court erred in denying her motion for a new trial based on the

introduction of her timecards as alibi evidence; the district court should have granted

her motions for a continuance and for issuance of subpoenas at government expense;
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the trial court erred in denying her motion for a directed verdict based on the alleged

unreliability of the government's witnesses; and the court should not have used

Logan's prior convictions to calculate her sentence. We reject all of these arguments

and affirm.

The district court correctly found that it was bound by our mandate to sentence

Logan and Maynie to thirty years imprisonment. See United States v. Bartsh, 69 F.3d

864, 866 (8th Cir. 1995). Maynie's argument regarding drug identity is precluded

because he failed to raise it prior to the initial sentencing or in his first appeal.

See United States v. Stuckey, 255 F.3d 528, 531 (8th Cir.), cert. denied, 534 U.S.

1011 (2001). Logan’s remaining sentencing-related arguments are precluded because

they raise or are essentially based on arguments that were resolved in the prior appeal.

See Bartsh, 69 F.3d at 866. Contrary to Logan's assertion, neither exception to the

"law of the case" or mandate rules applies here because Logan did not present

"substantially different evidence," and because the prior panel decision does not work

a "manifest injustice." See id. Furthermore, both of the Appellants' arguments are

beyond the limited scope of the mandate for resentencing. See United States v.

Behler, 187 F.3d 772, 777 (8th Cir. 1999). 

The district court did not abuse its discretion in denying Logan's motion for a

new trial where the evidence presented by Logan was not "newly discovered." See

United States v. Oberhauser, 284 F.3d 827, 833 (8th Cir. 2002) (holding that a motion

for a new trial must be based on "newly discovered evidence" that was not available

to counsel before trial). We summarily reject Logan's arguments regarding the denial

of her motions for a continuance and for issuance of subpoenas because they

necessarily relate to the motion for a new trial. 

Because the underlying sentencing issues are the same, and because a court is

presumed to consider the merits of each claim fairly and impartially, there was no

abuse of discretion in consolidating the Logan, Maynie, and Banks appeals. See
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EEOC v. HBE Corp., 135 F.3d 543, 550-51 (8th Cir. 1998); Fed. R. App. P. 3(b)(2).

Finally, we decline to address any of Logan's arguments that are based on an assertion

that her trial counsel was ineffective. She must raise this claim in the district court

in a proceeding under 28 U.S.C. § 2255. See United States v. Jennings, 12 F.3d 836,

840 (8th Cir. 1994). 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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