United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1775
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Ernest Carl Crank, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 22, 2001
Filed: October 25, 2001
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Before LOKEN, FAGG, and BEAM, Circuit Judges.
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PER CURIAM.
After a jury found Ernest Carl Crank guilty of conspiring to distribute cocaine
and cocaine base, distributing cocaine base, and distributing cocaine, the district curt
sentenced Crank to concurrent prison terms of 245 months on each of the conspiracy
and cocaine-base-distribution counts, and 240 months on the cocaine-distribution
count. Because the indictment did not charge any specific drug quantity and the jury
did not make any finding as to drug quantity, we vacated all but the cocaine-
distribution sentence and remanded for resentencing in light of Apprendi v. New
Jersey, 120 S. Ct. 2348, 2362-63 (2000). The district court resentenced Crank to 240
months on each count, with all terms to be served concurrently, and Crank appeals.
His counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), and
Crank has filed a pro se supplemental brief. We reject Crank's appeal and affirm.
Crank argues his new sentence is still invalid under Apprendi. This argument
fails because his new sentence does not exceed the statutory maximum term of
imprisonment he faced on his offenses without regard to drug quantity. See 21 U.S.C.
§ 841(b)(1)(C); United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000). Crank
also argues the government failed to prove a controlled substance was present during
the transactions underlying his conviction. This argument is foreclosed by our
holding in his first appeal that the evidence was sufficient to support his convictions.
Crank further complains his indictment was constructively amended when the court
instructed the jury on the elements of aiding and abetting. We need not consider this
issue, as it could have been raised in Crank's prior appeal. See United States v.
Montoya, 979 F.2d 136, 138 (8th Cir. 1992).
Finally, Crank argues the district court should have required preparation of
another presentence report (PSR) before resentencing. Given the limited basis of our
remand, we reject this argument as well. Cf. Untied States v. Prado, 204 F.3d 843,
845 (8th Cir. 2000) (appellant not entitled to new PSR before resentencing, as initial
sentence was vacated only for purposes of reinstating right to direct criminal appeal).
Having reviewed the record independently, in keeping with Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues.
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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