                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                  No. 03-2086SI
                                 _____________

United States of America,              *
                                       * On Appeal from the United
            Appellee,                  * States District Court
                                       * for the Southern District
      v.                               * of Iowa.
                                       *
Albert A. Wheeldon,                    * [To Be Published]
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: December 3, 2003
                                Filed: December 18, 2003
                                 ___________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD and BOWMAN, Circuit
      Judges.
                              ___________

PER CURIAM.


       Albert A. Wheeldon appeals the sentence imposed by the District Court1
following remand for resentencing. At resentencing, the District Court sentenced
Wheeldon to one year and nine months (twenty-one months) imprisonment and three
years supervised release. Counsel has moved to withdraw and filed a brief pursuant



      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
to Anders v. California, 386 U.S. 738 (1967), suggesting the District Court erred in
not granting Wheeldon a downward departure.

       We need not consider the departure issue, because Wheeldon did not raise it
in his first appeal. See United States v. Kress, 58 F.3d 370, 373 (8th Cir.1995)
(“Where 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.”). In any event, the District
Court’s refusal to depart downward is unreviewable, because its statements at
resentencing indicate it was aware of its authority to depart. See United States v.
Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000).

     We have reviewed the record for any nonfrivolous issues in accordance with
Penson v. Ohio, 488 U.S. 75, 80 (1988), and we have found none.

      Accordingly, we grant counsel’s motion to withdraw, and we affirm.
                     ______________________________




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