                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 98-1689MN
                                  _____________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
Simon Frank Weise,                      *       [UNPUBLISHED]
                                        *
                   Appellant.           *
                                  _____________

                            Submitted: January 6, 1999
                                Filed: January 20, 1999
                                 _____________

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

PER CURIAM.

       Upon Simon Frank Weise's 1995 conviction for second-degree murder within
Indian country, the district court departed downward from the Guidelines range of 168-
210 months, sentencing Weise to 121 months imprisonment. See U.S. Sentencing
Guidelines Manual § 5K2.0 (1998). On appeal, we held the record was inadequate to
support departure based on United States v. Big Crow, 898 F.2d 1326, 1330-32 (8th
Cir. 1990), and remanded for the district court to make a new assessment on an
expanded record. See United States v. Weise, 89 F.3d 502, 507 (8th Cir. 1996). After
an evidentiary hearing, the district court again departed downward under section 5K2.0
and sentenced Weise to 121 months imprisonment. In considering Weise's second
appeal, we concluded the district court abused its discretion by deciding Weise's case
lay outside the heartland of the applicable Guideline. We thus remanded "for
imposition of a sentence within the applicable Guidelines range." See United States
v. Weise, 128 F.3d 672, 673, 675 (8th Cir. 1997) (Weise II). On remand, no new
evidence was introduced, and the district court found it was "foreclosed from dealing
with any of the factors that [it] laid out" in the earlier sentencing orders and
resentenced Weise to 168 months imprisonment. Weise now contends this court's
opinion in Weise II did not as a matter of law preclude a departure.

       Although a decision not to depart is generally unreviewable on appeal, see
United States v. Jenkins, 78 F.3d 1283, 1290 (8th Cir. 1996), we retain authority to
review a district court's decision for compliance with our mandate, see United States
v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). The district court correctly interpreted our
opinion in Weise II and properly limited the scope of resentencing in conformity with
our instructions. See United States v. Behler, 100 F.3d 632, 635-36 (8th Cir. 1996) (all
issues decided by appellate court become law of case on remand, and sentencing court
is bound to proceed within limitations imposed by appellate court).

      We thus affirm Weise's sentence.

      A true copy.

             Attest:

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




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