                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2712
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Richard Don Smotherman,                  *
                                         *    [TO BE PUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 16, 2003

                                   Filed: April 18, 2003
                                    ___________

Before LOKEN* and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      WEBBER,** District Judge.
                                ___________

PER CURIAM.

     Richard Don Smotherman pleaded guilty to the charge of conspiring to
manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846. The



      *
       The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
      **
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri, sitting by designation.
district court1 sentenced him to 262 months in prison, the bottom of the guidelines
sentencing range determined by the court. Smotherman appealed, and we remanded
for resentencing because of an error in calculating the applicable drug quantity.
United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002). On remand, the
district court determined a corrected guidelines range of 210 to 262 months and
sentenced Smotherman to 250 months in prison. He again appeals, arguing that, in
sentencing him near the top of his corrected guidelines range, the court imposed a
presumptively vindictive sentence, thereby violating Smotherman’s due process rights
as defined in North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part by
Alabama v. Smith, 490 U.S. 794 (1989). We affirm.

        In Pearce, the Supreme Court held that the Due Process Clause bars a
sentencing judge from vindictively punishing the defendant for a successful appeal.
To guard against the danger of vindictiveness, the Court adopted the rule that,
“whenever a judge imposes a more severe sentence upon a defendant after a new trial,
the reasons for his doing so must affirmatively appear [and] be based upon objective
information concerning identifiable conduct on the part of the defendant occurring
after the time of the original sentencing proceeding.” 395 U.S. at 726. Though
Pearce involved a resentencing after a second conviction, this principle also applies
to a resentencing after a sentence was vacated on appeal. United States v. Evans, 315
F.3d 329, 334 (8th Cir. 2002).

      A resentencing does not trigger the rule in Pearce unless the second sentence
is “more severe.” Thus, when there is a single count of conviction, as in this case, the
Pearce presumption of vindictiveness does not arise if the court imposes the same
sentence on remand. See United States v. Arrington, 255 F.3d 637, 639 (8th Cir.
2001). Here, Smotherman’s 250-month sentence on remand is twelve months less


      1
       The HONORABLE DEAN WHIPPLE, Chief Judge of the United States
District Court for the Western District of Missouri.

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than his original 262-month sentence. He nonetheless argues that the Pearce
presumption should apply because the district court initially sentenced him at the
bottom of the applicable guidelines range but then resentenced him near the top of the
corrected range. Arrington squarely rejected this contention:

      Since a more severe sentence was not imposed, Arrington cannot make
      out a claim of vindictiveness. Just because Arrington was sentenced at
      the bottom of the original range does not mean that he had a right to be
      sentenced at any particular point in the recalculated guideline range. He
      was sentenced within the guideline range, and no presumption of
      vindictiveness arose because he was not sentenced at his preferred point
      in the applicable range.

255 F.3d at 639 (citation omitted).

       Absent any constitutional infirmity, we have no jurisdiction to review the
district court’s exercise of discretion in setting a defendant’s sentence within a
properly determined guidelines range. See 18 U.S.C. § 3742(a); United States v.
Woodrum, 959 F.2d 100, 101 (8th Cir. 1992). The district court’s sentence on
remand was not presumptively vindictive under Pearce. Accordingly, the court’s
judgment must be affirmed.

      A true copy.

             Attest:

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




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