United States v. Dennis Cordes ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3808
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Dennis Cordes, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 6, 1997
Filed: June 18, 1997
___________
Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Dennis Cordes appeals the 372-month sentence imposed by the District Court1
after he pleaded guilty to attempting to manufacture methamphetamine and
methcathinone, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). Cordes argues
for the first time that imposition of an obstruction-of-justice enhancement for having
escaped from custody while awaiting sentencing violates the Double Jeopardy Clause
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
because the District Court imposed the enhancement after his conviction in a separate
proceeding for escape. We affirm.
We "will not consider an issue raised for the first time on appeal absent a
showing of plain error resulting in a miscarriage of justice." United States v. Merritt,
982 F.2d 305, 306-07 (8th Cir. 1992), cert. denied, 508 U.S. 979 (1993). We conclude
that the District Court did not commit plain error because Cordes’s sentence in the drug
case was within the combined statutory limits for the two drug offenses, and thus
imposition of the obstruction enhancement in the drug case after Cordes’s conviction
in the escape case did not violate double jeopardy. See Witte v. United States, 115
S. Ct. 2199, 2206-08 (1995) (holding that use of evidence of related criminal conduct
to enhance defendant’s sentence does not constitute punishment for that conduct within
meaning of Double Jeopardy Clause and that "where the legislature has authorized a
particular punishment range for a given crime, the resulting sentence within that range
constitutes punishment only for the offense of conviction for purposes of the double
jeopardy inquiry"); United States v. Bellrichard, 62 F.3d 1046, 1051-52 (8th Cir. 1995)
(holding that Witte compelled this court to reject defendant’s argument that imposition
of sentence based on conduct for which defendant had received obstruction
enhancement in previous proceeding violated double jeopardy), cert. denied, 116 S. Ct.
1425 (1996); see also United States v. Jernigan, 60 F.3d 562, 564-65 (9th Cir. 1995).
Although we ordinarily do not consider a pro se brief when a party is represented
by counsel, see United States v. Whitelaw, 86 F.3d 788, 789 (8th Cir. 1996), we have
reviewed Cordes’s pro se submissions and conclude that his arguments are without
merit.
Accordingly, the judgment of the District Court is affirmed.
-2-
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-