                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2483
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the District
      v.                                 * of South Dakota.
                                         *
Alvin Ronald Allery, Jr.,                *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: March 4, 2004

                                   Filed: March 8, 2004
                                    ___________

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
                            ___________

PER CURIAM.

       Alvin Ronald Allery, Jr., challenges the sentence imposed by the district court*
at resentencing following our remand in United States v. Allery, 50 Fed. Appx. 795,
797 (8th Cir. 2002) (unpublished per curiam), for resentencing “within a Guidelines
range of 63-78 months.” On remand, Allery moved the district court to consider the
victim’s conduct as grounds for a downward departure, and to consider Allery's post-
sentencing rehabilitative efforts and the victim’s conduct when determining at what

      *
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
point within the Guidelines range to impose sentence. The district court resentenced
Allery to 76 months imprisonment and 3 years supervised release. Allery’s counsel
has filed a brief under Anders v. California, 386 U.S. 738 (1967), raising a challenge
to the court’s denial of Allery’s motion for departure. Allery has filed a pro se brief
raising claims of ineffective assistance of trial counsel and appellate counsel.

      We find the district court properly rejected the motion for a downward
departure given the scope of our remand, see United States v. Prestemon, 953 F.2d
1089, 1090 (8th Cir. 1992), and the ineffective-assistance claims are not properly
before us, see Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1696 (2003);
United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). We also find no
nonfrivolous issues after having performed our independent review under Penson v.
Ohio, 488 U.S. 75, 80 (1988). Accordingly, we affirm.
                       ______________________________




                                          -2-
