United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2313

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Arkansas.

* 

Donnie R. Long, * [UNPUBLISHED]

*

Appellant. *

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Submitted: February 6, 2004

Filed: February 13, 2004

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Before BYE, RICHARD S. ARNOLD, and BOWMAN, Circuit Judges.

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PER CURIAM.

Donnie R. Long appeals following resentencing upon his jury trial conviction

for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). On appeal, his counsel has moved to withdraw and filed a brief under Anders

v. California, 386 U.S. 738 (1967), and Long has filed a pro se supplemental brief.

In a prior appeal, we vacated Long’s sentence and remanded for resentencing

in view of our finding that the Armed Career Criminal Act (ACCA) applied. See

United States v. Long, 320 F.3d 795, 801–02 (8th Cir. 2003). At resentencing the
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The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas.

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District Court1

 applied the ACCA, sentenced Long to 188 months of imprisonment

and three years of supervised release, and imposed a $1,000 fine. 

In the Anders brief, counsel challenges the District Court’s refusal to continue

the resentencing hearing and the Court’s imposition of a fine. After careful review

we find no merit in these issues. The District Court did not abuse its discretion in

denying Long’s continuance motion because Long sought the continuance to garner

evidence in support of a challenge he wished to make to a prior conviction. See

Custis v. United States, 511 U.S. 485, 487, 496–97 (1994) (except for convictions

obtained in violation of right to counsel, defendant in federal sentencing proceeding

has no right to collaterally attack validity of previous state convictions used to

support ACCA enhancement); United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.)

(standard of review for denial of continuance), cert. denied, 519 U.S. 1018 (1996).

We also find that the Court did not clearly err in imposing a $1,000 fine. See

U.S.S.G. § 5E1.2; United States v. Johnston, 973 F.2d 611, 615 (8th Cir. 1992)

(district court did not clearly err by imposing fine on indigent defendant based on his

ability to pay fine while working in prison and after being released), cert. denied, 506

U.S. 1068 (1993). 

The arguments raised in Long’s pro se brief also fail. Long may not now

challenge his felon-in-possession conviction because he did not raise this issue in his

first appeal. See United States v. Logan, 333 F.3d 876, 878 (8th Cir.) (per curiam),

cert. denied, 124 S. Ct. 970 (2003). His argument that his prior drug convictions

should have been treated as related for ACCA purposes is precluded by law of the

case. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). Despite Long’s

assertion to the contrary, these three prior convictions were grouped together for

criminal-history-score purposes. Finally, Long’s ineffective-assistance claim is not
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properly before us. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.

2003).

Having found no nonfrivolous issues after reviewing under Penson v. Ohio,

488 U.S. 75, 80 (1988), the portions of the record pertaining to resentencing, we

affirm.

We also grant counsel’s motion to withdraw. 

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