                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                  No. 04-3276/3277
                                   ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota
Patrick Fitzgerald Ester,                 *
                                          * [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                              Submitted: December 7, 2005
                                 Filed: January 25, 2006
                                  ___________

Before BYE, McMILLIAN,1 and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

       Patrick Ester appeals from a final judgment entered in the District Court2 for the
District of Minnesota upon a jury verdict finding him guilty of six counts of
distributing or aiding and abetting the distribution of crack cocaine, in violation of 21
U.S.C. § 841(a) and 18 U.S.C. § 2. The district court sentenced Ester to 240 months
imprisonment and 10 years supervised release. Because Ester was on supervised

      1
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
release from a prior conviction when he committed these offenses, the district court
revoked his release and entered a separate judgment sentencing him to a consecutive
37-month prison term. Ester appeals from that judgment as well. For reversal, Ester
argues that (1) he was unreasonably seized in violation of his Fourth Amendment
rights when he was arrested by law enforcement officers allegedly acting outside their
geographical jurisdictions, (2) he was pre-selected and pre-targeted in violation of his
Fifth Amendment due process rights, (3) his Sixth Amendment confrontation rights
were violated because he was sentenced without an evidentiary hearing, (4) he
received ineffective assistance of trial counsel, (5) the district court lacked subject
matter and personal jurisdiction, and (6) he was denied a common law trial guaranteed
under the Seventh Amendment. For the reasons stated below, we affirm.

       The Fourth Amendment issue was not preserved in the district court and thus
is reviewed for plain error. See United States v. Smith, 422 F.3d 715, 724 (8th Cir.
2005) (standard of review). Ester has not shown plain error because uncontroverted
evidence in the record establishes that he was arrested in Minneapolis, Minnesota, by
Minneapolis police officers, and the investigating officers acted within their broad
investigative jurisdiction. (See Appellant’s App. Ex. F2; Trial Tr. at 450, 494.)

       Construing the due process argument in light of motions Ester made in the
district court, we hold first that the court did not abuse its discretion in rejecting
Ester’s prosecutorial-vindictiveness argument because the present case rests upon
allegations entirely different from those underlying a prior unsuccessful prosecution,
and the mere fact that the prior case was dismissed does not objectively support an
inference of vindictiveness. See United States v. Funchess, 422 F.3d 698, 701 (8th
Cir. 2005) (standard of review); United States v. Campbell, 410 F.3d 456, 461-62 (8th
Cir.) (defendant bears burden of producing objective evidence of vindictive motive;
mere fact that prosecutor indicted defendant on additional count after new-trial motion
was granted held insufficient to satisfy defendant’s burden), cert. denied, 126 S. Ct.
492 (2005). Second, the district court did not clearly err in finding that Ester was

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predisposed to commit the offenses, thus precluding him from receiving a downward
departure based on sentencing entrapment. See United States v. Searcy, 284 F.3d 938,
942-44 (8th Cir. 2002) (defendant asserting sentencing entrapment bears burden to
show by preponderance of evidence lack of predisposition to commit offense;
reversing grant of defendant’s departure motion where district court clearly erred in
finding lack of predisposition, even though defendant had never sold crack cocaine
before first sale to government informant and did not agree to first sale until after
several conversations with informant); see also United States v. Baber, 161 F.3d 531,
532 (8th Cir. 1998) (denial of departure motion based on sentencing entrapment is
reviewable because source of argument is Due Process Clause).

      Regarding Ester’s Sixth Amendment argument, we initially note that Ester
mistakenly assumes he had a right of confrontation at sentencing, in reliance upon an
overruled decision, United States v. Fortier, 911 F.2d 100, 103-04 (8th Cir. 1990)
(reversing and remanding on ground that right to confront witnesses was violated at
sentencing), overruled by United States v. Wise, 976 F.2d 393, 401 (8th Cir. 1992)
(en banc) (right to confront witnesses does not attach at sentencing hearing), cert.
denied 507 U.S. 989 (1993). The determination whether to hold an evidentiary
hearing at sentencing is within the district court’s sound discretion, see Wise, 976 F.2d
at 404, and we hold that the court did not abuse its discretion in denying Ester’s
evidentiary-hearing request because no disputed facts in the presentence report (PSR)
were taken into account at sentencing, see United States v. Morehead, 375 F.3d 677,
679 (8th Cir. 2004) (when defendant disputes material fact in PSR, sentencing court
must either hold evidentiary hearing or not take disputed fact into account).

       We decline to consider Ester’s ineffective-assistance argument because this is
not an exceptional case warranting such consideration on direct appeal. See United
States v. Looking Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005). We have considered
Ester’s remaining arguments on appeal and find them to be wholly without merit.



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      Accordingly, the judgments of the district court are affirmed. As to the pending
motions, we grant Ester’s motion to supplement the record and reply brief, deny
Ester’s motion for oral argument, deny the government’s motion to supplement the
record, and dismiss as moot Ester’s motion to strike.
                       ______________________________




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