United States v. Mitchell ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4808
DAMON LUCKY MITCHELL, a/k/a
Country, a/k/a Jayquan Knight,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-29)
Submitted: July 30, 2002
Decided: September 23, 2002
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James F. Sumpter, JAMES F. SUMPTER, P.C., Richmond, Virginia,
for Appellant. Thomas E. Johnston, United States Attorney, Robert H.
McWilliams, Jr., Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
2 UNITED STATES v. MITCHELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Damon Lucky Mitchell appeals from his 219-month sentence
imposed after he pled guilty to one count of distribution of 1.72 grams
of crack cocaine. On appeal, Mitchell argues that the district court’s
use of relevant conduct under U.S. Sentencing Guidelines Manual
§ 1B1.3 (2000) violates the Due Process Clause of the United States
Constitution. After reviewing the record and briefs on appeal we find
no error.
Although Mitchell pled guilty to the distribution 1.72 grams of
crack cocaine, the district court considered evidence presented at sen-
tencing and the pre-sentence report, and found that Mitchell was
responsible for between 500 grams and 1.5 kilograms of crack
cocaine, employing the relevant conduct provision of USSG § 1B1.3.
Mitchell’s broad challenge to his sentence is that the consideration of
relevant conduct violates the Due Process Clause. Because Mitchell
did not challenge the constitutionality of relevant conduct at the sen-
tencing hearing, we review the issue for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993).
We have identified three specific challenges to relevant conduct in
Mitchell’s argument. All three are without merit because they are
contrary to Fourth Circuit caselaw. Mitchell argues that the applica-
tion of the relevant conduct provision of the Sentencing Guidelines
violates the Due Process Clause because it permits consideration of
hearsay testimony, permits a finding of quantity by a preponderance
of the evidence, and permits consideration of conduct in dismissed
counts. First, this court has held that "there is no bar to the use of
hearsay in sentencing." United States v. Love, 134 F.3d 595, 607 (4th
Cir. 1998). Second, this court has upheld the preponderance of the
evidence standard for use in determining quantity within the sentenc-
ing range. See United States v. Kinter, 235 F.3d 192, 199-202 (4th
UNITED STATES v. MITCHELL 3
Cir. 2000), cert. denied, 532 U.S. 937 (2001) (holding Apprendi does
not apply to judge’s exercise of discretion within statutory range, so
long as the sentence imposed does not exceed the statutory maxi-
mum). Third, we have repeatedly upheld the use of dismissed conduct
in determining the sentence. See, e.g., United States v. Barber, 119
F.3d 276, 284 (4th Cir. 1997).
This court has repeatedly stated that one panel is bound to adhere
to the published decisions of prior panels of this court; therefore this
panel may not grant Mitchell the relief he seeks. See, e.g, Norfolk &
Western Ry. Co. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir. 1993);
Brubaker v. City of Richmond, 943 F.2d 1363, 1381-82 (4th Cir.
1991); Derflinger v. Ford Motor Co., 866 F.2d 107, 110 (4th Cir.
1989); Hutchins v. Woodard, 730 F.2d 953, 957 (4th Cir. 1984).
We therefore conclude that Mitchell’s due process challenge to the
relevant conduct provision of the Sentencing Guidelines fails. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED