At page 190 Upholding use of dismissed conduct in sentencing1 citing case“We therefore conclude that Mitchell’s due process challenge to the relevant conduct provision of the Sentencing Guidelines fails.”
- Boyd v. United States, No. 1:18-cv-00178 (N.D. W. Va. Aug. 31, 2021).The Fourth Circuit has “repeatedly upheld the use of dismissed conduct in determining the sentence.” United States v. Mitchell, 46 F. App'x 189, 190 (4th Cir. 2002) (citing United States v. Barber, 119 F.3d 276, 284 (4th Cir. 1997).
v.
Damon Lucky MITCHELL, A/K/A Country, A/K/A Jayquan Knight, Defendant-Appellant
OPINION
PER CURIAM.Damon Lucky Mitchell appeals from his 219 month sentence imposed after he pled[*190] 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 sentencing 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 sentencing hearing, we review the issue for plain error. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 application 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 sentencing range. See United States v. Kinter, 235 F.3d 192, 199-202 (4th Cir.2000), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (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 maximum). 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 dispense 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.