                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3304
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Eastern District of Missouri.
Anthony J. Thompson,                   *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: April 15, 2003

                                 Filed: July 10, 2003 (Corrected 7/24/03)
                                  ___________

Before BYE, RICHARD S. ARNOLD and HANSEN, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Anthony J. Thompson appeals the district court's1 imposition of a 168-month
sentence for possession with intent to distribute five grams or more of a substance
containing cocaine base in violation of 21 U.S.C. § 841(a)(1). We affirm.




      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
                                           I

       A jury convicted Thompson of possession of more than fifteen unauthorized
credit access devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(3)
(Count I), and possession with intent to distribute five grams or more of a substance
containing cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count II). Following
his conviction, Thompson filed a motion for judgment of acquittal or in the
alternative a new trial. The district court granted Thompson's motion for judgment
of acquittal with respect to Count II on the element of intent to distribute and entered
a verdict of guilty to simple possession of cocaine base in violation of 21 U.S.C. §
844(a). At sentencing, the district court noted U.S.S.G. § 2D2.1(b)(1) requires a
defendant convicted of possessing more than 5 grams of cocaine base to be sentenced
as if convicted of possession of cocaine base with intent to distribute. The district
court determined Thompson's guideline sentencing range was 168-210, but departed
downward and sentenced Thompson to 120 months imprisonment, stating it was
"inappropriate to sentence simple possession of cocaine base as if it were a
possession with intent to distribute charge."

       Thompson appealed his conviction and sentence and counsel was appointed to
represent him in his direct appeal. On July 26, 2000, however, Thompson's attorney
filed a motion to withdraw claiming Thompson threatened to kill him. Thompson
was ordered to respond to his attorney's motion - including counsel's claim Thompson
threatened to kill him. Thompson failed to file a response and on October 3, 2000,
the motion to withdraw was granted. Thereafter, Thompson filed two motions for
appointment of new counsel which were both denied. Thompson also requested three
extensions of the briefing schedule. The court granted those requests and ordered
Thompson to file his brief by June 20, 2001. Despite the extensions, Thompson
failed to file a brief and his appeal was dismissed.

       The government also appealed the conviction and sentence imposed by the
district court, arguing the grant of judgment of acquittal and downward departure
were erroneous. On April 9, 2002, we granted the government's appeal and reversed
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the judgment of acquittal, vacated Thompson's sentence, and remanded for
resentencing. United States v. Thompson, 285 F.3d 731, 734 (8th Cir. 2002). On
August 30, 2002, the district court sentenced Thompson to 168 months imprisonment
and this appeal followed. On appeal, Thompson argues the district court erred at
sentencing because there was insufficient evidence to prove he possessed crack
cocaine as opposed to another form of cocaine base.

                                         II

       Thompson asserts the district court erred in calculating his sentence based on
crack cocaine rather than another form of cocaine base not meriting the increased
sentence reserved for crack. See United States v. Jackson, 64 F.3d 1213, 1219 (8th
Cir. 1995) ("[C]rack . . . [is] the only form of cocaine base to which the stiffer
penalties formulated by the Sentencing Guidelines apply."). We review a district
court's determination of drug type for clear error and we will reverse only if firmly
convinced a mistake has been made. See United States v. Maxwell, 25 F.3d 1389,
1397 (8th Cir. 1994).

       When the type of drugs attributable to a defendant is at issue, the government
bears the burden of proving the type of drugs by a preponderance of the evidence.
See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir. 1996). At trial, the
government's chemist testified the substance seized was cocaine base, but never
specifically identified the substance as "crack" cocaine. Additionally, two police
officers testified the rock-like substance seized from Thompson was crack cocaine.
Nevertheless, Thompson argues the chemist's testimony was equivocal and does not
entirely exclude the possibility the substance may have been a form of cocaine base
other than crack. Further, Thompson argues the police officers' testimony was
inconclusive because they never tested the substance to definitively determine it was
crack cocaine.

    In addition to arguing the evidence was sufficient to prove the substance
Thompson possessed was crack cocaine, the government contends Thompson is
                                         -3-
precluded from raising this issue in this appeal because he could have raised it in his
first appeal. We agree.

       A defendant is permitted to raise issues for the first time in a subsequent appeal
following a remand if the previous appeal was taken by the government and the
defendant did not have the opportunity to raise an issue on appeal at that time. United
States v. Boyd, 958 F.2d 247, 249-50 (8th Cir. 1992). Conversely, "[w]here a party
could have raised an issue in a prior appeal but did not, a court later hearing the same
case need not consider the matter." United States v. Kress, 58 F.3d 370, 373 (8th Cir.
1995) (citing United States v. Wright, 716 F.2d 549, 550 (9th Cir. 1983) (per curiam);
United States v. Callaway, 972 F.2d 904, 905 (8th Cir. 1992)).

       Notwithstanding the district court's grant of judgment of acquittal on the charge
of possession with intent to distribute crack cocaine, Thompson stood convicted of
possession of crack cocaine. Any argument attacking the sufficiency of the evidence
as to the type of drug involved should have been brought at that time. Indeed,
Thompson filed an appeal challenging his conviction and sentencing but, despite
numerous extensions, failed to prosecute the appeal. Accordingly, because
Thompson could have raised this issue in his first appeal, we will not consider it now.

       Nevertheless, Thompson argues he was unable to raise this issue in his first
appeal because his attorney withdrew due to a conflict of interest and the issue was
too complex for him to raise pro se. Thompson further argues the court should have
appointed substitute counsel after his attorney was allowed to withdraw. We find
these arguments decidedly unconvincing.

       We recognize Thompson's constitutional right to be represented by counsel on
appeal. See Douglas v. California, 372 U.S. 353, 358 (1963). A criminal defendant
may, however, by virtue of his actions forfeit his constitutional rights. See, e.g.,
Illinois v. Allen, 397 U.S. 337, 343 (1970) (holding a defendant can lose his
constitutional right to be present at trial if he continues disruptive behavior after
being warned it may result in removal); United States v. Emery, 186 F.3d 921, 926
                                          -4-
(8th Cir. 1999) (holding a defendant who causes a witness to become unavailable for
trial forfeits his right to confrontation); Buckley v. Lockhart, 892 F.2d 715, 720 (8th
Cir. 1989) (noting the general rule that a criminal defendant who escapes and
removes himself from the court's power and remains at large during pendency of his
appeal forfeits his right to appeal). Similarly, "a defendant who is abusive toward his
attorney may forfeit his right to counsel." United States v. McLeod, 53 F.3d 322, 325
(11th Cir. 1995).

      Thompson characterizes his attorney's motivation for withdrawing as a conflict
of interest. Our review of the record leads us to a less generous conclusion.
Thompson's attorney alleged Thompson threatened to kill him if he did not withdraw.
Thompson was given an opportunity to refute the allegation but ignored our order to
submit a response. Faced with counsel's undisputed allegation, this court granted the
motion to withdraw and refused to appoint new counsel. In light of the seriousness
of the allegation, and Thompson's willful failure to submit any explanation or to
otherwise refute the allegation, our refusal to appoint substitute counsel did not
unconstitutionally abridge Thompson's right to be represented on appeal.

                                          III

      The judgment and sentence of the district court is affirmed.

      A true copy.

             Attest:

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




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